Appeal from the United States District Court for the District of Idaho. D.C. No. CR-92-021-EJL. Edward J. Lodge, District Judge, Presiding.
Before: Thomas Tang, Jerome Farris and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Farris.
Wayne Rodney Heim, Dwayne Keith Fitzen, Dyan Jones and Steven R. Britenbach appeal their convictions for conspiracy to distribute controlled substances in violation of 18 U.S.C. §§ 841(a)(1) and 846. Britenbach also appeals his convictions on six counts of violating the Travel Act, 18 U.S.C. § 1952. All four defendants appeal their sentences. We have jurisdiction over their appeals pursuant to 28 U.S.C. § 1291. The convictions of all four co-defendants and the sentences of Heim, Fitzen and Jones are affirmed in a separate unpublished Disposition. In this opinion, we affirm Britenbach's sentence.
The evidence at trial established that defendants Heim, Fitzen, Jones and Britenbach conspired to distribute controlled substances in violation of 18 U.S.C. §§ 841(a)(1) and 846. During the course of the conspiracy, Fitzen, Heim and Jones resided in Pocatello, Idaho while Britenbach operated in Southern California. Britenbach and, to a lesser extent, co-defendant Mike Luce (who pleaded guilty) supplied cocaine and marijuana to the Pocatello co-conspirators.
The district court sentenced Britenbach as a career offender under § 4B1.1 of the United States Sentencing Guidelines. Section 4B1.1 provides that a defendant is a career offender if
(1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1. The commentary to § 4B1.2 states that the term "controlled substance offense" includes the offense of conspiring to commit a controlled substance offense. U.S.S.G. § 4B1.2 comment. (n.1).
In finding that Britenbach was a career offender, the district court relied on two prior controlled substance felony convictions (a 1975 conviction for importation of controlled substances and a 1985 conviction for possession of narcotics with the intent to distribute) and the instant conspiracy conviction.
II. Use of Conspiracy Conviction Toward Career Offender Status
Britenbach argues that the United States Sentencing Commission exceeded its statutory authority by including conspiracy within the definition of a "controlled substance offense." He relies on United States v. Price, 301 U.S. App. D.C. 97, 990 F.2d 1367 (D.C.Cir. 1993) for this proposition. We reject his argument. The Sentencing Commission properly included conspiracy within the definition of "controlled substance offense."*fn1
We review the legality of a sentence de novo. United States v. Fine, 975 F.2d 596, 599 (9th Cir. 1992) (en banc). The commentary to § 4B1.1 explains that "28 U.S.C. § 994(h) mandates that the Commission assure that certain 'career' offenders, as defined in the statute, receive a sentence of imprisonment 'at or near the maximum term authorized.' Section 4B1.1 implements this mandate." U.S.S.G. § 4B1.1, comment. (backg'd). The pertinent language in § 994(h) provides that
the Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and . . . has been convicted of a felony that is . . . a crime of violence[,] or an offense described in section 401 of the Controlled Substances Act (21 U.S.C. § 841) . . . and . . . has previously been convicted of two or more prior felonies, each of ...