United States of America v. HÉCTOR GARCÍA-CARTAGENA, a/k/a/ Arana

Boston, MA - Criminal defense lawyer represented defendant with possessing drugs with intent to distribute and domestic abuse charge.se

Let's start with the basics. To recommend sentences for

supervised release violators, the United States Sentencing

Guidelines rank new crimes with letter grades (A, B, and C). The

highest grade (A), with the highest (recommended) range of

sentences, is reserved for new criminal "conduct constituting [ ]

a federal, state, or local offense punishable by a term of

imprisonment exceeding one year that (i) is a crime of violence,

(ii) is a controlled substance offense," or falls within two other

classes of serious crimes not relevant here. U.S.S.G.

§ 7B1.1(a)(1). Under § 4B1.2:

(a) The term "crime of violence" means any offense

under federal or state law, punishable by

imprisonment for a term exceeding one year, that —

(1) has as an element the use, attempted use, or

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threatened use of physical force1 against the person

of another [the "force clause"], or (2) is murder,

voluntary manslaughter, kidnapping, aggravated

assault, a forcible sex offense, robbery, arson,

extortion, or the use or unlawful possession of a

firearm described in 26 U.S.C. § 5845(a) or

explosive material as defined in 18 U.S.C. § 841(c)

[the "enumerated offense" clause].

(b) The term "controlled substance offense" means an

offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that

prohibits the manufacture, import, export,

distribution, or dispensing of a controlled

substance . . . or the possession of a controlled

substance . . . with intent to manufacture, import,

export, distribute, or dispense.

U.S.S.G. § 4B1.2; see § 7B1.1, cmt. nn. 2, 3 (stating that "crime

of violence" and "controlled substance offense" are "defined in

§ 4B1.2 (Definitions of Terms Used in Section 4B1.1)").

Those terms appear throughout the guidelines — not only

in § 7B1.1(a)(1), but also in various other provisions that

increase a defendant's recommended sentence based on "crime[s] of

violence" and "controlled substance offense[s]" and also

incorporate the definitions in § 4B1.2. To apply those other

provisions, we use the "categorical approach" minted in Taylor v.

United States, 495 U.S. 575, 588 (1990) (holding that a similar

definition of "violent felony" in the Armed Career Criminal Act,

or ACCA, "requires the trial court to look only to the fact of

1 "Physical force" means "violent force": "force capable of

causing physical pain or injury to another person." United States

v. Martinez, 762 F.3d 127, 137 (1st Cir. 2014) (quoting Johnson v.

United States, 559 U.S. 133, 140 (2010)).

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conviction and the statutory definition of the prior offense").

See, e.g., United States v. Ramos-González, 775 F.3d 483, 504 (1st

Cir. 2015); United States v. Dávila-Félix, 667 F.3d 47, 56 (1st

Cir. 2011); United States v. Bryant, 571 F.3d 147, 157 (1st Cir.

2009) (all applying § 4B1.1's "Career Offender" enhancement for

defendants convicted of a "crime of violence" or "controlled

substance offense" for the third time); see also United States v.

Martínez-Benítez, 914 F.3d 1, 2 (1st Cir. 2019) (ditto for

§ 2K2.1(a)(4), increasing the guideline sentence for defendants

who commit firearms offenses with a prior conviction for a

"controlled substance offense" or "crime of violence"). We've

used the approach to characterize both past convictions and crimes

"freshly committed," United States v. Bell, 966 F.2d 703, 704–06

(1st Cir. 1992), even when the defendant wasn't convicted of the

covered offense, see United States v. Gary, 74 F.3d 304, 316–17

(1st Cir. 1996) (using the categorical approach to decide that an

offense was a "crime of violence" under § 4B1.4(b)(3)(A), which

increases a defendant's guideline sentence if he possessed a

firearm "in connection with . . . a crime of violence" or

"controlled substance offense").

Although Taylor interpreted the definition of "violent

felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.

§ 924(e), we adopted its approach early on to classify "crime[s]

of violence" under the Career Offender guideline (§ 4B1.1),

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because, we explained, "[t]he definition of a 'violent felony' for

purposes of the [ACCA] [was] the same in all material respects as

the definition of a 'crime of violence'" in § 4B1.2(a) (which

§ 4B1.1 incorporates). Bell, 966 F.2d at 704. After all, the

force clause of "section 4B1.2 employ[s] exactly the same language

that Taylor relied on to justify an inference that a categorical

approach was intended": the phrase defining a crime of violence

as an offense that "has as an element the use, attempted use, or

threatened use of physical force against the person of another."

Id. at 704–05 & n.3 (emphasis added). That phrase — "has as an

element" — was crucial in Taylor; since the ACCA (in its force

clause) defines "violent felony" as a felony that "'has as an

element' — not any crime that, in a particular case, involves —

the use or threat of force," the Court held that the whole

definition (including the "the phrase 'is burglary'" in the

"enumerated offense" clause) must "refer[ ] to the elements of the

statute of conviction, not to the facts of each defendant's

conduct." Taylor, 495 U.S. at 600–01. We held that the same

"elements"-focused language in § 4B1.2(a), coupled with the

commentary, demanded the same elements-based (or "categorical")

approach to classifying offenses as "crime[s] of violence" for

purposes of the "Career Offender" enhancement (§ 4B1.1). See Bell,

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966 F.2d 703.2 Although § 4B1.2(b) used different language, we

soon adopted the same method to classify crimes as "controlled

substance offense[s]" under § 4B1.1. See United States v. Piper,

35 F.3d 611, 619 (1st Cir. 1994) (reasoning that the approach

"mirror[ed] Congress's approach" to serious drug offenses under

the ACCA and avoided the "practical difficulties" involved in

excavating the facts underlying past convictions).

Under the categorical approach, we look only to the

"elements" of the crime — i.e., "the constituent parts of [the]

crime's legal definition" ("the things the prosecution must prove

beyond a reasonable doubt to sustain a conviction") — and not "how

a given defendant actually perpetrated the crime," to decide if

the offense, as defined in the statute, matches § 4B1.2's criteria

2 In Bell, and later in Gary, we went on to apply the "residual

clause" of § 4B1.2(a)(Nov. 1990), which called an offense a "crime

of violence" if it "present[ed] a serious potential risk of

physical injury to another." Bell, 966 F.2d at 706–07; Gary, 74

F.3d at 316. The Sentencing Commission later deleted that clause.

See Amendment 798 (Aug. 1, 2016). But § 4B1.2(a) retains the "as

an element" language that, in our view, called for the categorical

approach to classifying "crime[s] of violence." By the way, that's

the same language the Supreme Court has since found most

significant in interpreting the definition of "violent felony" in

the ACCA, and similar definitions elsewhere in the U.S. Code, to

mandate a categorical approach. See, e.g., United States v. Davis,

139 S. Ct. 2319, 2328 (2019) (citing Leocal v. Ashcroft, 543 U.S.

1, 7 (2004)); see also United States v. Frates, 896 F.3d 93, 96–

97 (1st Cir. 2018) (noting that the ACCA's force and enumerated

clauses, see 18 U.S.C. § 924(e)(2)(B), are "materially identical

to the Guidelines' crime of violence definition," though Amendment

798 added a few enumerated offenses to § 4B1.2(a)'s text). More

on that later.

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for a "crime of violence" or "controlled substance offense."

Mathis v. United States, 136 S. Ct. 2243, 2248, 2251–52 (2016)

(internal citations omitted); accord United States v. Martinez,

762 F.3d 127, 133 (1st Cir. 2014) ("A state offense qualifies as

a crime of violence only if its elements are such that . . . a

person convicted of the offense has 'necessarily' been found guilty

of conduct that meets [§ 4B1.2's] definition."). We call the test

"categorical" because it "function[s] as an on-off switch" so a

"crime [will] qualify as a predicate in all cases or in none."

Descamps v. United States, 570 U.S. 254, 268 (2013).

To decide if a conviction is for a covered offense, we

take three steps. First, we ask if a conviction under the statute

requires (as pertinent here) either the violent use of force

against someone or possession of a controlled substance with intent

to distribute; if yes, the offense counts. See United States v.

Mohamed, 920 F.3d 94, 101 (1st Cir. 2019) (asking if the state

statute "require[d] an intent to distribute [a controlled

substance] as an element of the crime"); United States v. Williams,

529 F.3d 1, 4 (1st Cir. 2008) ("If the court determines that a

violation of the statute in question necessarily involves each and

every element of a violent crime, then the offense is deemed a

crime of violence[.]"). If the statute is overbroad (if it

criminalizes both covered and non-covered conduct) then the court

must see if it's "divisible": i.e., whether it sets out "discrete

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offenses that can be separated from each other." United States v.

Faust, 853 F.3d 39, 51 (1st Cir. 2017).3 If the statute is

divisible into several distinct crimes, one of which is a "crime

of violence" or "controlled substance offense," the court "looks

to a limited class of documents (for example, the indictment, jury

instructions, or plea agreement and colloquy) to determine what

crime, with what elements, a defendant was convicted of." Mathis,

136 S. Ct. at 2249 (citing Shepard v. United States, 544 U.S. 13,

26 (2005)). This last step, when a court peeks beyond the statute

defining the crime to the record of conviction, is called the

"modified categorical approach." Id.

At the heart of this appeal is whether a court must use

a similar framework in the revocation context to decide whether

the defendant committed a "crime of violence" or "controlled

substance offense" under § 7B1.1(a)(1). García says yes; the

government says no. Here's how we got there.

3 To be divisible, a statute must list "elements in the

alternative . . . thereby defin[ing] multiple crimes." Mathis,

136 S. Ct. at 2249. Here, the word "element" is important: again,

it's a "constituent part[ ] of a crime's legal definition" —

something that "the prosecution must prove to sustain a

conviction." Id. at 2248–50. Thus, not every statute that lists

things in the disjunctive (using either/or) is divisible. If the

statute "merely specifies diverse means of satisfying a single

element of a single crime — or otherwise said, spells out various

factual ways of committing some component of the offense — a jury

need not find (or a defendant admit) any particular item." Id.

So such a statute wouldn't be divisible into two separate offenses.

Id.

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THE FACTS

In 2008, the United States District Court for the

District of Puerto Rico sentenced García to eighty-seven months in

prison and eight years of supervised release for his part in a

drug conspiracy. He was released in November 2016 and began his

supervised release term.

He wasn't out long. About seven months later, Puerto

Rican police caught García with a smorgasbord of drugs outside a

Guayama housing project. Catching wind, García's probation

officer filed a motion to revoke his supervised release. The

officer wrote in his "Motion to Show Cause" that García "was

arrested, in a drug point at Luis Pales Matos Public Housing

Project in Guayama . . . in possession of marijuana, cocaine[,]

and unprescribed pills." The Puerto Rico Commonwealth court

released him on bond a month later.

But within the next month, García was arrested again.

This time (according to the probation officer's second sworn

motion, and his girlfriend's sworn statement), he got into the

back of his girlfriend's car, climbed into the front, and sat on

top of her while "struggling . . . to gain control of the vehicle."

Meanwhile, he was "hitting her with an open hand," bruising her

face and splitting her upper lip. Once he got control of the car,

he drove the woman from the housing project to a store, where she

managed to escape. The probation officer's motions alleged a

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violation of the no-new-crimes condition and a few less serious

drug-related violations.

As the motions noted, García was charged in the

Commonwealth court with violating Article 401 of the Puerto Rico

Controlled Substances Act ("CSA"), P.R. Laws Ann. tit. 24, § 2401

(prohibiting the possession of a controlled substance with intent

to "manufacture, distribute, dispense, transport or conceal" it),

and Articles 3.1 ("Abuse") and 3.4 ("Abuse by Restriction of

Liberty") of Puerto Rico Domestic Violence Law 54.4 After a plea

bargain, however, the Commonwealth "reclassified" most of those

charges. They downgraded the drug charges from Article 401 to

Article 406, which punishes conspiracy or attempt to commit "any

4 Any person who employs physical force or psychological

abuse, intimidation, or persecution against his/her

[spouse or other listed domestic relation] in order to

cause physical harm to the person, the property held in

esteem by him/her, except that which is privately owned

by the offender, or to another person, or to cause

serious emotional harm, shall be guilty of a fourthdegree felony in the upper end of the range.

P.R. Laws Ann. tit. 8, § 631 (Article 3.1).

Any person who uses violence or intimidation against

his/her [spouse or other listed domestic relation] or

who uses the pretext of suffering from, or that one of

the aforementioned persons suffers from a mental disease

or defect to restrict the victim of liberty with his/her

knowledge, shall be guilty of a third-degree felony in

the lower end of the range.

P.R. Laws Ann. tit. 8, § 634 (Article 3.4).

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offense" under the CSA and permits a lower penalty. P.R. Laws

Ann. tit. 24, § 2406. And they watered down the Article 3.4

"restriction of liberty" charge to simple abuse under Article 3.1.

García pled guilty to these lesser offenses and was sentenced to

three years, six months, and one day in prison.

In a motion to schedule a revocation hearing, García

wrote that he would "not contest the allegations contained in the

Motions Notifying Violations of the Supervised Release Conditions"

— the full title of the probation officer's two motions described

above — but would instead make "arguments in mitigation of

punishment." At the hearing, his counsel reiterated that he was

"not challenging the allegation alleged in the motion." Instead,

García urged that, using the categorical approach, the government

could not show he committed a "crime of violence" or "controlled

substance offense." To his mind, only two of the crimes charged

— possession of a controlled substance with intent to distribute

under Article 401, and conspiring/attempting to do so under Article

406 — were covered offenses (specifically, "controlled substance

offenses") under § 7B1.1(a). But the available Shepard documents

(the minutes of the plea hearing, the plea agreement, or the

judgment from the Commonwealth court) showed that García only pled

guilty to an Article 406 conspiracy/attempt to commit some offense

under the Puerto Rico CSA. So in García's view, the court had to

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classify his violation as Grade B, yielding a guideline range of

18–24 months.

The district judge disagreed. First, she said, even if

the modified categorical approach applied, the sworn Puerto Rico

complaints charged García with possessing marijuana and cocaine

with intent to distribute them under Article 401, which meant that

he must have pled guilty to conspiring or attempting to commit

that offense. Anyway, she reasoned, the revoking court could look

past García's conviction to his "underlying conduct." So she

considered evidence beyond the Commonwealth court records of

conviction — including the information in the probation officer's

motion, the sworn complaints, and García's girlfriend's witness

statement — to conclude that García possessed marijuana and cocaine

with intent to distribute, violating Article 401, and committed

"violent crimes under [Domestic Violence] Law 54." These crimes,

the judge found, were Grade A violations of García's supervised

release because they were (respectively) a "controlled substance

offense" and a "crime of violence" under U.S.S.G. § 7B1.1(a)(1).

Based on those findings, she calculated the guideline range as 30–

37 months and sentenced García to thirty-six months in prison, to

run consecutively with the Puerto Rico sentences.

OUR TAKE

On appeal, García challenges the "Grade A" tag. And he

advances a similar argument to the one he made below. To apply

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§ 7B1.1(a)(1) the right way, he tells us, the court must first

decide if the state or federal law the defendant violated describes

a "crime of violence" or a "controlled substance offense" as

defined in the Guidelines. Next, if the law is overbroad and

divisible (for example, if it defines two separate offenses, only

one of which counts, see Mathis, 136 S. Ct. at 2249), the

government must identify "which of the multiple offenses in the

statute the defendant's conduct constituted." United States v.

Willis, 795 F.3d 986, 992–94 (9th Cir. 2015). To do so, he says,

it may "present[ ] witnesses at the final revocation hearing or

introduce[ ] documents pertaining to the underlying state case to

show the crime [the defendant] committed."5

5 García rightly points out that we've already applied the

categorical approach to classify an offense as a "crime of

violence" in the revocation context. In United States v. Eirby,

we relied on the elements of the Maine statute (criminalizing

sexual abuse of a minor) under which the defendant was convicted

in state court to conclude that he committed a Grade A violation

under § 7B1.1(a)(1)(A). 515 F.3d 31, 37–39 (1st Cir. 2008)

(concluding that the "conduct criminalized by [the Maine statute]

categorically pose[d] a serious risk of physical injury" and,

therefore, was a "crime of violence" under § 4B1.2(a)'s sincedeleted residual clause). The government parries that Eirby didn't

tether us to the categorical approach because there, we just

"assumed that [we] must examine the offense without regard to

actual conduct," as neither party argued for a different approach.

Gov.'s Br. at 35. Since we conclude that the text of

§§ 7B1.1(a)(1) and 4B1.2 compels the use of the categorical

approach here, we need not decide whether Eirby foreordained that

result.

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García urges that since the government "opted for the

latter course" in this case — meaning it "asked the district court

to glean from the state court records the specific offense Mr.

García violated" — the court could only rely on Shepard-approved

documents to show the offense he committed was possession of

controlled substances with intent to distribute (or

attempt/conspiracy to do so). In other words, the court could not

use the original Article 401 charge, since García pled guilty to

a lesser offense. See United States v. Rivera, No. 14-2039, slip

op. at 1 (1st Cir. Aug. 17, 2015) (judgment) (holding that when

determining whether a past conviction was for a "crime of violence"

under the Guidelines, "a district court may not rely on a charging

document without first establishing that the crime charged was the

same crime for which the defendant was convicted") (quoting United

States v. Bernal-Aveja, 414 F.3d 625, 627–28 (6th Cir. 2005)).

The government begs to differ. In its view, the

categorical approach does not apply (at all) in revocations. After

all, the Guidelines' commentary makes "the grade of [a supervised

release] violation" depend on "the defendant's actual conduct,"

and not "the conduct that is the subject of criminal charges or of

which the defendant is convicted in a criminal proceeding."

U.S.S.G. § 7B1.1 cmt. n.1. So, says the government, once the court

finds the defendant committed a new crime, it can ignore whatever

law (with whatever elements) the defendant broke and just ask

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whether his "actual conduct presented the use . . . of physical

force against the person of another" or the "possession of a

controlled substance with the intent to distribute."

Reading the Guidelines with fresh eyes ("de novo"),

United States v. Rivera-Berríos, 902 F.3d 20, 24 (1st Cir. 2018),

we think their text mandates a middle ground. Under

§ 7B1.1(a)(1)(A)(i) and (ii), as set out above, the government

must take two steps to show a Grade A violation. First, it needs

to point to some "federal, state, or local offense" punishable by

more than a year in prison that is (i) "a crime of violence" or

(ii) "a controlled substance offense." To answer this question,

we hold, § 4B1.2 requires the categorical approach. Once the

government identifies a qualifying offense, however, it need not

show the supervisee was convicted of that offense; it need only

show that the supervisee actually committed (that his "conduct

constituted") the crime's elements as defined in the statute (or

state common law). § 7B1.1(a) & cmt. n.1. To answer that question,

the revoking court may look beyond the Shepard documents (which

are only needed "to determine what crime . . . a defendant was

convicted of," Mathis, 136 S. Ct. at 2249 (emphasis added)), and

consider any other evidence admissible in revocation hearings.

See Gary, 74 F.3d at 316 (prescribing a similar two-step inquiry

to determine if a defendant possessed a firearm "in connection

with" a "crime of violence" or "controlled substance offense" under

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§ 4B1.4(b)(3)(A)). In so holding, we join the Third and Ninth

Circuits, who have adopted this same hybrid approach to

§ 7B1.1(a)(1)(A). See Willis, 795 F.3d at 992–94; United States

v. Carter, 730 F.3d 187, 192–93 (3d Cir. 2013).6

To unspool our reasoning, we take these two steps in

turn.

Step One: Categorical Approach

As we noted earlier, we've interpreted § 4B1.2's

definitions of "crime of violence" and "controlled substance

offense" — no matter where they're used in the guidelines, and no

matter what they're describing (be it a prior conviction or a crime

freshly committed and found by the sentencing court) — to call for

a categorical approach to deciding which crimes they cover. See

6 The government claims that the Third Circuit took its side

in Carter when it wrote that "[i]n the revocation context . . .

the categorical approach does not apply, and district courts may

consider a defendant's actual conduct in determining whether they

have broken the law and thus the terms of their supervised

release." 730 F.3d at 192. Later in the opinion, however, the

court clarified that "in determining whether [the] offense is a

'crime of violence,' § 4B1.2 requires that it contain an element

of force"; "[i]t is therefore not enough to say that a defendant's

actions were simply violent or forcible without pointing to a crime

containing those same elements." Id. at 193. The court went on

to find the district court gaffed because it failed to identify a

"federal or state offense" that the defendant violated, so the

court of appeals could not analyze the "elements" to see if they

matched § 4B1.2(a)'s definition. See id. Best read, then, Carter

held (as we do today) that a court applying § 7B1.1(a)(1)(A)(i)

must identify a statutory crime that requires violent force as an

element (read: apply the categorical approach), but may look beyond

convictions and Shepard documents to see if the defendant committed

that crime.

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supra at 4–5. That's because, under § 4B1.2, it's the "offense

under federal or state law," and not the defendant's "conduct,"

that must "ha[ve] as an element" the violent use of force, U.S.S.G.

§ 4B1.2(a)(1), be "robbery, arson, extortion," etc., id.

§ 4B1.2(a)(2), or "prohibit" drug possession with distributive

intent, id. § 4B1.2(b). True, "in ordinary speech[,] words such

as 'crime, 'felony,' 'offense,' and the like sometimes refer to a

generic crime," like "the crime of fraud or theft in general" and

sometimes mean the "specific acts in which an offender engaged on

a specific occasion," like the heist (s)he pulled off last month.

Nijhawan v. Holder, 557 U.S. 29, 33–34 (2009). But when Congress

uses the first, generic meaning, we must "look to the statute

defining the offense" (that is, use the categorical approach) to

see if it counts. Id. And in § 4B1.2, the word "offense" requires

just that.

First, "the text of [§ 4B1.2(a)]" directs us to

"the elements of the offense, rather than the conduct that this

particular defendant engaged in committing [it]." United States

v. Ellison, 866 F.3d 32, 35 (1st Cir. 2017). For that reason, the

Supreme Court has long held that the near-identical language in

the ACCA (which "defines the 'violent felonies' it covers to

include 'burglary, arson, or extortion' and 'crime[s]' that have

'as an element' the use or threatened use of force") "refers

directly to generic crimes" and demands a categorical approach.

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Nijhawan, 557 U.S. at 34. "Elements," recall, are "the

'constituent parts' of [the] crime's legal definition." Mathis,

136 S. Ct. at 2248 (emphasis added). So to figure out what an

offense "has as an element," we "must look to the statute defining

the offense." Nijhawan, 557 U.S. at 34; see also Leocal v.

Ashcroft, 543 U.S. 1, 6–7 (2004) (stressing the same "as an

element" language in holding that a nearly identical definition of

"crime of violence" in 18 U.S.C. § 16 — a definition used

throughout the U.S. Code to cover not only convictions, but also

threatened, alleged, and freshly committed crimes — "requires us

to look to the elements" of the offense and not "to the particular

facts relating to the petitioner's crime"); Taylor, 495 U.S. at

600–01.7

The same goes for § 4B1.2(b), which (covering "an

offense under federal or state law . . . that prohibits" drug

trafficking) also refers to a "generic" crime as defined in the

law, and not the defendants' conduct that happens to violate it.

7 The Sentencing Commission's notes on the 2016 Amendments to

§ 4B1.2 reinforce that the categorical approach applies to defining

"crimes of violence" and "controlled substance offenses" no matter

what guideline incorporates § 4B1.2. Acknowledging that "[t]he

'crime of violence' definition at § 4B1.2 is used to trigger

increased sentences under several provisions in the Guidelines

Manual," including "7B1.1," the Commission wrote that to apply the

"enumerated offense" clause in subsection (a)(2), "courts compare

the elements of the predicate offense of conviction with the

elements of the enumerated offense in its 'generic, contemporary

definition.'" Id.

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After all, criminal laws — not criminal defendants — are what

"prohibit" drug dealing (unless we were to say that legislators

commit "controlled substance offenses" by enacting them). Thus,

we've held that this "definition of 'controlled substance

offense'" in § 4B1.2(b) is what "requires that the statute under

which the defendant was charged involves an intent to distribute

or other indicia of trafficking." Bryant, 571 F.3d at 157

(emphasis added); see also United States v. Martínez-Hernandez,

422 F.3d 1084, 1087 (10th Cir. 2005) (using the categorical

approach to determine whether a crime is "[a]n offense under

federal, state, or local law that prohibits the possession of

[certain] firearm[s]," U.S.S.G. § 2L1.2(b)(1), figuring that just

as the phrase "'[t]hat has as an element' asks us to look at the

elements of the statute of conviction; 'that prohibits' asks us to

look at what the statute prohibits").

On the other hand, if the Sentencing Commission wanted

to trigger a Grade A violation whenever the defendant "used

physical force against the person of another" or "possessed a

controlled substance with the intent to distribute," it could have

said just that.8 See Sessions v. Dimaya, 138 S. Ct. 1204, 1218

8 Just flip open the Guidelines Manual; chances are you'll

see an example. See, e.g., U.S.S.G. § 2D1.1(b) ("(1) If a

dangerous weapon (including a firearm) was possessed, increase by

two levels. (2) If the defendant used violence, made a credible

threat to use violence, or directed the use of violence, increase

by 2 levels."); id. § 2H1.1(a)(3) (setting a base offense level of

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(2018) ("If Congress had wanted judges to look into a felon's

actual conduct, 'it presumably would have said so; other statutes,

in other contexts, speak in just that way'" (quoting Descamps, 570

U.S. at 267–68)) (interpreting 18 U.S.C. § 16). Instead, the

Commission incorporated § 4B1.2, its focus on "elements" and

"prohibit[ions]," and all the baggage those words carry. See

U.S.S.G. § 7B1.1 cmt. nn. 2, 3. And there's no reason to think

(as the government must) that § 7B1.1(a)(1) borrows some parts of

§ 4B1.2 (the language the government quotes), but not others (the

references to "elements" and "prohibitions"). See Cyan, Inc. v.

Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061, 1078 (2018) (refusing

to read a cross-reference to a whole subsection to refer only to

cherry-picked phrases within it; reasoning that if Congress meant

to be more specific, it would have been).

Section 4B1.2's plain language therefore kiboshes the

government's quest to turn "crime of violence" and "controlled

substance offense" and their respective definitions into

chameleons that vary their colors (to mean "specific acts" in



"10, if the offense involved (A) the use or threat of force against

a person; or (B) property damage or the threat of property

damage."); see also id. § 2G1.1 (Nov. 1, 2004) ("If the offense

involved (A) a commercial sex act; and (B) the use of physical

force, fraud, or coercion, increase by 4 levels."); id.

§ 4B1.4(b)(3)(A) (setting a base offense level of "34, if the

defendant used or possessed the firearm or ammunition in connection

with either a crime of violence . . . or a controlled substance

offense") (all emphases added).

- 22 -

§ 7B1.1(a) but a "generic" crime in other contexts) depending on

what guideline puts them to work. That would have taken some highlevel hocus-pocus to begin with, anyway, since "[i]n all but the

most unusual situations, a single use of a statutory phrase" (like

"offense," "element," and "prohibits" in § 4B1.2) "must have a

fixed meaning," United States v. Davis, 139 S. Ct. 2319, 2328

(2019), and since the "[Supreme] Court has held (it could hardly

have done otherwise) that 'we must interpret'" § 16's materially

identical "crime of violence" definition "consistently," no matter

what provision in the U.S. Code (be it a civil or criminal one)

incorporates it, Dimaya, 138 S. Ct. at 1217 (quoting Leocal, 543

U.S. at 12, n.8).

In concluding that the categorical approach applies

here, we part ways with three other circuits. See United States v.

Golden, 843 F.3d 1162, 1166–67 (7th Cir. 2016) (citing United

States v. Trotter, 270 F.3d 1150, 1155 (7th Cir. 2001)); United

States v. Mendoza, 782 F.3d 1046, 1048 (8th Cir. 2015) (citing

United States v. Schwab, 85 F.3d 326, 327 (8th Cir. 1996)); United

States v. Cawley, 48 F.3d 90, 93 (2d Cir. 1995). Respectfully,

these decisions don't change our minds. None of them engaged with

the text of § 4B1.2 (only Crawley even quoted it) or explained

what work "as an element" (not to mention "prohibits") is doing

there, if not to invite the same categorical approach the Court

has held it commands in the U.S. Code. See Nijhawan, 557 U.S. at

- 23 -

34; Leocal, 543 U.S. at 7; Taylor, 495 U.S. at 600–01. Instead,

they (like the government) rely on a statement in the commentary

that the "[t]he grade of violation does not depend upon the conduct

that is the subject of criminal charges or of which the defendant

is convicted in a criminal proceeding. Rather, the grade of the

violation is to be based on the defendant's actual conduct."

U.S.S.G. § 7B1.1, cmt. n.1; see Golden, 843 F.3d at 1166; Schwab,

85 F.3d at 327. But if the Application Note really required courts

to grade violations based only on actual conduct, and ignored the

"offense under federal or state law" that the defendant violated,

the Note would clash with the text, and the text would prevail.

See United States v. Soto-Rivera, 811 F.3d 53, 60 (1st Cir. 2016).

Step Two: Actual Conduct

Anyway, in our view, the text steers clear of that

collision, since it jibes with Application Note 1. Because once

the government identifies a "crime of violence" or "controlled

substance offense" — whether in the form of an "indivisible"

statute, or a discrete "offense" defined in a "divisible" statute

— the court must look at the defendant's actual conduct to

determine (by a preponderance of the evidence) whether that

"conduct constituted" (that is, whether he committed) the covered

offense. See Carter, 730 F.3d at 192 (holding that "[t]he courts

may consider a defendant's actual conduct in determining whether

they have broken the law"); accord Willis, 795 F.3d at 992–94. In

- 24 -

doing so, the court may consider live testimony and other evidence

admissible in revocation proceedings, including "affidavits,

depositions," "documentary evidence," and reliable hearsay.

United States v. Marino, 833 F.3d 1, 5 (1st Cir. 2016) (quoting

Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973); see also United

States v. Rondón-García, 886 F.3d 14, 21 (1st Cir. 2018)

(explaining that evidence supporting a sentence must have

"sufficient indicia of trustworthiness" to prove it's probably

accurate (quoting United States v. Rodríguez, 336 F.3d 67, 71 (1st

Cir. 2003)); U.S.S.G. § 6A1.3.9

García was with us in his thinking until that last point.

In his telling, at least in cases like this one, where the

government relies on documentary evidence from the state

prosecution (instead of live testimony) to show the defendant

committed a Grade A violation, the revoking court may only consult

Shepard documents (to review: papers from the defendant's record

of conviction, like the plea colloquy and charging documents) to

decide what crime was committed. Throughout his briefs, he cites

various decisions where we required Shepard records to determine

the defendant's crime of conviction. See, e.g., Ramos-González,

9 We do not here decide whether Rule 32.1(b)(2)(C) (entitling

the supervisee to "question any adverse witness" at a revocation

hearing "unless the court determines that the interest of justice

does not require the witness to appear") applies to evidence used

only to determine the post-revocation sentence.

- 25 -

775 F.3d at 507 (vacating defendant's sentence under the Career

Offender guideline because the government did not provide Shepard

records showing that the defendant's prior conviction under a

divisible statute was for a "violent" offense; "[a]lthough the

police complaint described a physically violent interaction,

Ramos's admission of guilt may not have incorporated those

details"); Rivera, No. 14-2039 (judgment), at *1 (vacating

sentence enhanced based on prior conviction for "crime of violence"

under U.S.S.G. § 2L1.2(b)(1)(A) for the same reason).

But that's just it; the enhancements applied in those

cases required "convictions" for covered offenses. So to apply

them, the courts needed Shepard documents to determine what the

defendant "necessarily admitted" when he pled guilty, i.e., "what

crime, with what elements, the defendant was convicted of."

Mathis, 136 S. Ct. at 2249 (citing Shepard, 544 U.S. at 26)

(emphasis ours); see also United States v. Serrano-Mercado, 784

F.3d 838, 842 (1st Cir. 2015) (explaining that "we look to . . .

Shepard documents . . . not to determine the conduct the defendant

engaged in while committing an offense, as such conduct is of no

relevance," but instead "to identify . . . the actual offense of

conviction" (citing Descamps, 133 S. Ct. at 2281)). Yet, as García

acknowledges, § 7B1.1(a)(1) asks a different question: whether

the defendant actually committed (whether his "conduct

constitutes") the qualifying crime. That question demands a

- 26 -

different answer, and the records of conviction are not the only

ones reliable enough to provide it. See United States v. BuenoBeltrán, 857 F.3d 65, 67–68 (1st Cir. 2017) (holding that the

district court properly considered detailed and corroborated

witness statements and drug field tests to determine that defendant

committed new crimes in violation of his conditions of supervised

release).10

With the legal framework in place, on to García's alleged

crimes.

García's Drug Offenses

As we read the judge's decision, she made two independent

findings about García's alleged drug offenses: first, that he

pled guilty to attempting or conspiring to possess a controlled

10 By the way, Eirby did not hold otherwise. There, the

defendant admitted (by pleading guilty in state court) that he

committed the Maine crime in question: sexual abuse of a minor

under 17-A M.R.S.A. § 254(1)(A-2). 515 F.3d at 34. He urged that

the district court misclassified this admitted crime as a "crime

of violence"; we disagreed — and categorically so. See id. at 37–

39 (explaining that "the conduct criminalized by section 254(1)(A2) categorically poses a serious risk of physical injury," making

it a crime of violence under the residual clause and a Grade A

violation). As a result, we did not need to decide whether the

district court could look beyond Shepard documents to find that

the defendant's conduct constituted an offense different from the

one he pled guilty to. As we hold today, the answer is yes, it

can — any dicta in Eirby, 515 F.3d at 37 (stating that if the

statute is divisible, the court "must . . . determine whether the

record of conviction reveals all the elements of a violent crime")

notwithstanding. See United States v. Starks, 861 F.3d 306, 323

(1st Cir. 2017) (explaining that dicta, i.e., statements that are

"not necessary to the court's conclusion," are not binding).

- 27 -

substance with intent to distribute it, in violation of Article

406, and second, that he actually possessed cocaine and marijuana

with intent to distribute them, which infracted Article 401.

Article 401 (as relevant here) prohibits the possession of

marijuana and cocaine (among other drugs) with intent to

"distribute, dispense, transport or conceal" it, P.R. Laws Ann.

tit. 24, § 2401, while Article 406 criminalizes the lesser offense

of "attemp[ing] or conspir[ing]" to commit any offense under Puerto

Rico's CSA, including simple possession under Article 404, P.R.

Laws Ann. tit. 24, § 2406.

Article 406

As García correctly points out, after his revocation, we

undercut the trial court's first line of reasoning. In MartínezBenítez, the defendant (like García) was charged with possession

with intent to distribute a drug (heroin) under Article 401,

reclassified to an unspecified Article 406 conspiracy/attempt

charge before he pled guilty. 914 F.3d at 3. And as here, the

district judge assumed that "if a defendant pleads guilty to an

Article 406 attempt/conspiracy violation following an Article 401

possession-with-intent-to-distribute charge, then it always means

he stands convicted of attempt/conspiracy to possess drugs with

distributive intent." Id. at 7. So the judge found MartínezBenítez had a past conviction for a controlled substance offense

and jacked up his offense level under § 2K2.1(a)(4)(A). See

- 28 -

Martínez-Benítez, 914 F.3d at 3–4. On appeal, we rejected that

approach, holding that the government couldn't bank on the

"reclassified" intent-to-distribute charge to prove the defendant

pled guilty to conspiring/attempting to commit a specific crime:

to possess the drug with intent to distribute it. Id. at 5–8

(noting that the defendant's three-year suspended sentence was

"certainly consistent with his having pled to

attempting/conspiring to possess heroin without distributive

intent" under Article 404, since it was below Article 404's fiveyear maximum). The government had to rely on Shepard documents,

and those it produced weren't helpful. Id. So we vacated and

remanded for resentencing without the conviction-based

enhancement. Id.

Given Martínez-Benítez, the government does not defend

the judge's conclusion that García pled guilty to

attempting/conspiring to distribute drugs under Article 406. So

if the judge had hinged her decision on it, García's case for

reversal would be stronger. See Pullman-Standard v. Swint, 456

U.S. 273, 287 (1982) ("[I]f a district court's findings rest on an

erroneous view of the law, they may be set aside on that basis.").

As we've explained, however, unlike in Martínez-Benítez (where

§ 2K2.1(a)(4)(A) demanded a prior "conviction" for a controlled

substance offense) the judge did not need to rely on García's

guilty plea to find a Grade A violation under § 7B1.1(a)(1)(A)(ii)

- 29 -

(which asks only whether the defendant committed the covered

offense). And as we've described, she did not. Rather, she laid

a separate ground for the A Grade; she also looked to García's

actual conduct, gleaned from other evidence (we'll review it in a

minute), to find he possessed marijuana and cocaine with intent to

distribute — which broke Article 401.

Article 401

Article 401 is not an out-and-out ("categorical," in the

now familiar lingo) controlled substance offense. In arguing

otherwise, the government runs up against Dávila-Félix, in which

we held that Article 401 "cannot categorically qualify as a

'controlled substance offense' within the meaning of § 4B1.2(b)."

667 F.3d at 56. We reasoned that "in addition to criminalizing

the more obvious drug trafficking offenses, such as distribution,

dispersal and possession with intent to distribute controlled

substances, [it] also criminalizes actions that are not commonly

considered drug trafficking offenses, such as concealment of a

controlled substance." Id. And since the statute proscribes

"conduct that falls outside the guidelines definition" (i.e., mere

concealment), it's ineligible for full membership in the

"controlled substance offense" club. Id.

Conceding that Dávila-Félix is on point, the government

urges that the decision's "interpretation of Article 401 is

contradicted by the Puerto [Rico] Supreme Court," citing Pueblo v.

- 30 -

Rosario Cintrón, 102 D.P.R. 82, 86, 2 P.R. Offic. Trans. 107, 112

(P.R. 1974).11 Per the government, Rosario Cintrón "expressed that

concealment or transportation of drugs under Article 401 always

involved drug trafficking, not mere possession," which means

Article 401 is "categorically . . . a controlled substance offense

under the guidelines." Under "the law of the circuit" rule, "newly

constituted panels" (like us) "are, for the most part, bound by

prior panel decisions closely on point" (like Dávila-Félix).

United States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018) (quoting

Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995)).

Yet, we (as a panel) may use Rosario Cintrón to overturn DávilaFélix because, says the government, "one of the narrow exceptions

[to the rule] includes when the holding of a previous panel 'is

contradicted by controlling authority.'" Gov.'s Br. at 50 (quoting

United States v. Troy, 618 F.3d 27, 35–36 (1st Cir. 2010)).

Which is a nice place to stop — if you don't like the

rest of that sentence. The full version reads, after all:

A departure from the rule is warranted only when the

earlier holding is "contradicted by controlling

authority, subsequently announced" (say, a decision of

the authoring court en banc, a Supreme Court opinion

directly on point, or a legislative overruling), or in

the "rare instances in which authority that postdates the

original decision, although not directly controlling,

nevertheless offers a sound reason for believing that the

11 "[A] federal court is bound by the construction of state

law rendered by the highest court of the state," or in this case,

the Commonwealth. United States v. Holloway, 630 F.3d 252, 259

(1st Cir. 2011).

- 31 -

former panel, in light of fresh developments, would change

its collective mind."

Troy, 618 F.3d at 35–36 (citations omitted) (emphases added) (going

on to find the appellant's cases "lack[ed] force" because they

"predate[d]" the decision she sought to overrule and "thus [were]

impuissant against the law of the circuit rule"); see also United

States v. Mouscardy, 722 F.3d 68, 77 (1st Cir. 2013) ("[W]e are

'bound by a prior panel decision, absent any intervening

authority.'" (quoting United States v. Grupee, 682 F.3d 143, 149

(1st Cir. 2012)); United States v. Holloway, 499 F.3d 114, 118

(1st Cir. 2007) ("[O]nly the Supreme Court or an en banc court can

overturn prior panel precedent in ordinary circumstances[.]"). In

other words, the government can't dislodge Dávila-Félix with a

case decided thirty-seven years earlier — at least not at this

juncture.

That said, García does not dispute that Article 401 does

criminalize § 4B1.2(b)-covered conduct: the possession of cocaine

with intent to distribute. So as described earlier, that it also

covers non-qualifying drug offenses (i.e., possession with intent

to conceal) doesn't end our journey. Instead, we ask whether

Article 401 is "divisible": i.e., whether Article 401 possession

with intent to distribute is a discrete crime, distinct from

"intent to conceal," with its own elements. See Faust, 853 F.3d

at 51. The Puerto Rico Supreme Court has indicated that it is;

- 32 -

according to that tribunal (which has the final word on Article

401's scope), the statute characterizes "possession . . . with

intent to distribute" and "transportation and concealment . . . as

separate offenses" to be charged as separate counts. Fuentes

Morales v. Superior Court, 102 D.P.R. 705, 708, 2 P.R. Offic.

Trans. 910, 914 (P.R. 1974). "When a ruling of that kind exists,

a sentencing judge need only follow what it says." Mathis, 136 S.

Ct. at 2256; see also Martínez-Benítez, 914 F.3d at 5 (stating

that "attempt/conspiracy to possess [cocaine] with distributive

intent" under Article 406 (referencing Article 401) qualifies as

a discrete "controlled substance offense"). García does not argue

otherwise; in fact, he conceded below that his charged offense

under "Article 401 . . . possession with intent to distribute" is

"a controlled substance offense." So if there was enough evidence

to find that García possessed the drugs with distributive intent,

the district judge could reasonably call that crime a Grade A

violation.

Sufficient Evidence

In the district judge's view, there was ample evidence

that García possessed "cocaine, marijuana, and pills in

distribution amounts." García disagrees.

Normally, we'd review the judge's factfinding for clear

error, reversing if a review of the whole record gives us a

"strong, unyielding belief" that she messed up. United States v.

- 33 -

Nuñez, 852 F.3d 141, 144 (1st Cir. 2017); see also United States

v. Oquendo-Rivera, 586 F.3d 63, 67 (1st Cir. 2009). But that

standard applies only when the appellant preserved his challenge

with an objection "specific" enough "to call the district court's

attention to the asserted error." United States v. Soto-Soto, 855

F.3d 445, 448 n.1 (1st Cir. 2017). And García's only pitch to the

district judge was the one we've just debunked: that the judge

had to zero-in on the Shepard-approved records of his Puerto Rico

convictions to see if García pled guilty to a controlled substance

offense and ignore the other evidence suggesting he actually

committed one. The probation officer submitted that other evidence

to the parties and the judge before the final hearing. First,

there were the sworn complaints charging that García possessed

marijuana and cocaine with the intent to distribute them. Second,

García admitted to the allegations in the probation officer's

motions, which charged that he possessed those same drugs at a

drug point. And third, drug field tests (run by the Puerto Rico

police and submitted by probation) showed that García had fifteen

vials of cocaine and thirty-nine vials of marijuana, along with

ten baggies of pills. Below, García did not contend that this

evidence (if it could be considered) failed to show that he more-

- 34 -

likely-than-not possessed marijuana and cocaine with intent to

distribute them.12

Since he raises this challenge for the first time on

appeal, the judge's decision will stand unless García shows that

she made a plain ("clear or obvious") error that "affected [his]

substantial rights" and "seriously impaired the fairness,

integrity, or public reputation of judicial proceedings" — a high

bar. Soto-Soto, 855 F.3d at 448. García doesn't clear this

hurdle. He points out (correctly, as we explain in another opinion

issued today, see United States v. Colón-Maldonado, No. 18-1388,

___ F. 3d ___ [Slip Op. at 16–25]) that the bare accusations in

the Puerto Rico complaints and probation officer's motions,

standing alone, would not support the Grade A finding. But he

doesn't tell us why it's obvious that his admission to probation's

allegations plus the field test results (together saying that he

had sixty-four separate containers of marijuana, cocaine, and

pills at a drug point) don't cut it — even though we've previously

found no "error, plain or otherwise, in [a] district court's

12 By the way, García has not — neither below nor before us —

argued that he should have been given an opportunity to question

the arresting officers, the agent who tested the drugs, or any

other witness under Rule 32.1(b)(2)(C). Cf. Bueno-Beltrán, 857

F.3d at 68; Marino, 833 F.3d at 4–7. Nor does he contend he lacked

a fair opportunity to request an evidentiary hearing or to argue

that his own admissions and the drug field tests (taken together)

were insufficient to prove he actually possessed the drugs with

distributive intent. See United States v. Rodriguez, 919 F.3d

629, 635 (1st Cir. 2019).

- 35 -

consideration of [such] field test results to support [a] finding

that [a defendant] violated the terms of his supervised release,"

Bueno-Beltrán, 857 F.3d at 68, and even though "[w]e have held

that a large amount and individual packaging of drugs is sufficient

to demonstrate an intent to distribute," United States v. AyalaGarcía, 574 F.3d 5, 13 (1st Cir. 2009); accord Mohamed, 920 F.3d

at 106. Indeed, he does not address the field test results at

all. So he gives us no reason to conclude that the judge committed

plain error when she found García infracted Article 401 of the

Puerto Rico CSA — a "controlled substance offense" under the

Guidelines, U.S.S.G. §§ 4B1.2(b), 7B1.1(a)(1)(A)(ii).

CODA

Because we find the district judge did not commit

reversible error when she tagged García's drug offense with an A

Grade, we need not decide whether either of his domestic abuse

offenses (under Article 3.1 or 3.4 of Puerto Rico Domestic Violence

Law 54) deserved that label. See U.S.S.G. § 7B1.1(b) ("Where there

is more than one violation of the conditions of supervision, or

the violation includes conduct that constitutes more than one

offense, the grade of the violation is determined by the violation

having the most serious grade."); United States v. Hinkley, 803

F.3d 85, 93 (1st Cir. 2015) (noting that a guideline error is

harmless if it doesn't change the range). And so, all that is

left to say is

Affirmed