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United States Court of Appeals for the Fifth Circuit
May 31, 2022, Filed
[*938] Cory T. Wilson, Circuit Judge:
Andres Vargas pled guilty to conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B). The probation officer determined that Vargas was a career offender under § 4B1.1(a) of the United States Sentencing Guidelines because the instant offense, as well as Vargas's prior convictions for possession with intent to distribute amphetamine and conspiracy to possess with intent to manufacture and distribute methamphetamine, qualified as controlled substance offenses. The district court overruled Vargas's objection to the career-offender enhancement [**2] and sentenced him to 188 months of imprisonment, followed by four years of supervised release. Vargas timely appealed.
] A defendant qualifies as a career offender under U.S.S.G. § 4B1.1(a) if, inter alia, the instant offense is a felony controlled substance offense and "the defendant has at least two prior felony convictions of . . . a controlled substance offense." A "controlled substance offense" is defined as "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(b). Application Note 1 of the commentary to § 4B1.2 explains that a "controlled substance offense" also "include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Id. § 4B1.2 cmt. n.1 (emphasis added).
Vargas asserts that the district court erred in treating his instant and prior conspiracy convictions as controlled substance offenses because inchoate offenses do not qualify for the career offender enhancement under the plain text of the Guidelines. He contends that the Guidelines [**3] commentary, which purports to include inchoate offenses, is not entitled to deference. Because Vargas preserved his objection,] "we review the district court's interpretation and application of the Guidelines de novo." United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005).
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
35 F.4th 936 *; 2022 U.S. App. LEXIS 14917 **
UNITED STATES OF AMERICA, Plaintiff—Appellee, versus ANDRES VARGAS, Defendant—Appellant.
Subsequent History: Vacated by, Rehearing granted by, En banc United States v. Vargas, 45 F.4th 1083, 2022 U.S. App. LEXIS 23751 (5th Cir. Tex., Aug. 24, 2022)
Prior History: [**1] Appeal from the United States District Court for the Southern District of Texas. USDC No. 4:20-CR-80-1.
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Criminal Law & Procedure, Accessories, Aiding & Abetting, Adjustments & Enhancements, Criminal History, Prior Felonies, Sentencing Guidelines, Career Offenders, Criminal Offenses, Classification of Offenses, Felonies, Controlled Substances, Appeals, Standards of Review, De Novo Review, Governments, Legislation, Interpretation, Sentencing, Sentencing Guidelines, Inchoate Crimes, Clearly Erroneous Review, Sentences, Administrative Law, Judicial Review, Reviewability, Exhaustion of Remedies