United States District Court, D. Connecticut
RULING ON INAPPLICABILITY OF CAREER OFFENDER SENTENCE
Bond Arterton, U.S.D.J.
November 20, 2018, Defendant Hector Alfonso was convicted by
guilty plea of conspiracy to possess with intent to
distribute heroin, in violation of 21 U.S.C. §§
841(a) and (b)(1)(C), and brandishing a firearm during and in
relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(ii). On March 22, 2019, he was
sentenced by the Court on those two counts respectively to 57
months and 84 months of imprisonment, to run consecutively.
During the sentencing hearing, the parties disputed whether
the "career offender" sentence enhancement of USSG
§ 4B 1.1(a) applied to Mr. Alfonso. The Court concluded
that the enhancement did not apply to Mr. Alfonso and
indicated that a written ruling setting forth a detailed
analysis of the reasoning underlying that decision would
USSG § 4B1.1(a), a "career offender" must have
"at least two prior felony convictions of either a crime
of violence or a controlled substance offense."
"The government bears the burden of showing that a prior
conviction counts as a predicate offense for the purpose of a
sentencing enhancement." United States v.
Savage, 542 F.3d 949, 964 (2d Cir. 2008).
Government here argues that Defendant is a career offender
based on three prior felony convictions: his 2014 conviction
for possession with intent to distribute, and distribution
of, cocaine base in violation of 21 U.S.C. 841(a) and
(b)(1)(C), and his 2007 convictions of attempted robbery in
the first degree and conspiracy to commit robbery in the
first degree in violation of Conn. Gen. Stats. 53a-48,
53a-49, 53a-133, and 53a-134. (Govt. Sentencing Mem. [Doc. #
145] at 9-16.) Defendant disputes that his convictions
for attempt and conspiracy to commit robbery constitute
crimes of violence for purposes of the career offender
guideline. (Def.'s Sentencing Mem. [Doc. # 137] at 5-15.)
Because Mr. Alfonso's 2014 conviction is undoubtedly a
"felony conviction of ... a controlled substance
offense," the career offender sentence enhancement
applies if either or both of his 2007 convictions were for a
"crime of violence." USSG §4B1.1(a).
§ 4B1.2(a)(2) enumerates "robbery" among the
offenses which constitute a "crime of violence" for
purposes of the career offender guideline. Defendant argues
that even if robbery itself is a "crime of
violence," attempt to and conspiracy to commit robbery
guidelines define "crime of violence" for purposes
of the career offender enhancement in two alternative ways.
First, certain crimes, including robbery, are categorically
crimes of violence. USSG § 4B 1.2(a)(2) ("the
Enumeration Clause") ("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)"). Second, in addition to those enumerated
crimes, any crime which "has as an element the use,
attempted use, or threatened use of physical force against
the person of another" is also a crime of violence.
Id. § 4B 1.2(a)(1) ("the Elements
Note 1 to § 4B 1.2 states that "the offenses of...
conspiring and attempting to commit" the crimes
enumerated in 4B1.2(a)(2), including robbery, are also crimes
of violence for purposes of the career offender enhancement.
Such "[c]ommentary provisions [of the Sentencing
Guidelines] must be given 'controlling weight' unless
they: (1) conflict with a federal statute, (2) violate the
constitution, or (3) are plainly erroneous or inconsistent
with the Guidelines provisions they purport to
interpret." United States v. Jones, 878 F.3d
10, 18 (2d Cir. 2017); see Stinson v. U.S., 508 U.S.
36, 42 (1993) (holding that commentary provisions "which
function to interpret [a] guideline or explain how it is to
be applied" are controlling but those which are plainly
erroneous or inconsistent are not). If, however,
"commentary and the guideline it interprets are
inconsistent in that following one will result in violating
the dictates of the other," the Guideline itself must
govern. Stinson, 508 U.S. at 43.
Alfonso argues that Application Note 1, which categorically
defines attempt to and conspiracy to commit robbery as crimes
of violence, is plainly inconsistent with the Guideline it
purports to interpret, § 4B1.2(a). The government
contends that Application Note 1 is controlling. If
Application Note l's provision that conspiracy and
attempt to commit the enumerated crimes does control, then
Mr. Alfonso's 2007 convictions are clearly crimes of
violence for purposes of the career offender enhancement, and
that enhancement would apply here. The key question,
therefore, is whether that portion of Application Note 1
controls or is "plainly erroneous or inconsistent with
the Guidelines provision [it] purport[s] to
interpret." Jones, 828 F.3d at 18.
following reasons, the Court concludes that Application Note
l's provision that conspiracy to and attempt to commit
robbery are categorically "crimes of violence" for
purposes of the career offender enhancement is plainly
inconsistent with the Guideline and thus is not controlling.
See Jones, 878 F.3d at 18. USSG § 4B1.2
explicitly defines "the term 'crime of violence,
'" but the state law crimes of attempt and
conspiracy do not fit within that definition: they are not
among the enumerated crimes of § 4B 1.2(a) (2) and do
not "ha[ve] as an element the use, attempted use, or
threatened use of physical force against the person of
another" under § 4B1.2(a)(1).
Application Note l's expansion of the Enumeration Clause
to include crimes which the Guideline itself does not list is
plainly inconsistent with that Enumeration Clause.
Enumeration of additional crimes which, though related, are
separate and distinct from the crimes enumerated in §
4B1.2(a)(2) is not the type of "interpretive and
explanatory" commentary which is binding on federal
courts. See Stinson, 508 U.S. at 42. Rather, it is
inconsistent with the Guideline's Enumeration Clause
because it purports to alter and expand, not to explain, the
text of that clause. The "offenses of aiding and
abetting, conspiring, and attempting to commit" the
offenses enumerated in § 4B1.2(a)(2), which Application
Note 1 purports to "include" as crimes of violence,
are statutorily separate offenses which differ substantively
from the underlying offenses that the Guideline itself
Application Note l's purported categorical inclusion of
attempt and conspiracy as crimes of violence is plainly
inconsistent with the Elements Clause because the state-law
crimes of attempt and conspiracy do not have any element
which requires the use of force. Pursuant to the Connecticut
statute under which Mr. Alfonso was convicted, conspiracy
requires only an agreement and an "overt act in
pursuance of the conspiracy, Conn. Gen. Stat. §
53a-48(a), neither of which need include the use, attempted
use, or threatened use of physical force. Indeed, an
"overt act" may be "any step, action, or
conduct that is taken to achieve or further the objective of
the conspiracy." See State v. Smith, 797 A.2d
1190, 1194 n.4 (Conn. App. Ct. 2002) (quoting and approving
the trial court's "thorough instruction" to the
jury regarding the elements of conspiracy); State v.
Pond, 108 A.2d 1083, 1097 (Conn. 2015) ("Although
it is true that § 53a-48(a) requires that one of the
coconspirators have performed an overt act in furtherance of
the conspiracy, such overt act may be de minimus, it may
itself be a legal and innocuous activity . . . .").
Therefore, regardless of robbery's status as a crime of
violence, conspiracy to commit robbery in violation of Conn.
Gen. Stat. § 53a-48(a) is not a crime of violence under
the Elements Clause because it does not have as an element
the use, attempted use, or threatened use of physical force.
See Johnson v. United States, No. 3:16cv00215(MPS),
2016 WL 7362764, at *7 (D. Conn. Dec. 19, 2016) ("The
crime defined by [Conn. Gen. Stat. § 53a-48(a)] does not
'ha[ve] as an element the use, attempted use, or
threatened use of physical force against the person of
another,' 18 U.S.C. § 924(e)(2)(B)(i), regardless of
the offense that is the object of the conspiracy.")
conspiracy, the Connecticut statute under which Mr. Alfonso
was convicted of attempt does not have any element which
requires the use of force. Pursuant to that statute, "an
act or omission constituting a substantial step in a course
of conduct planned to culminate in his commission of the
crime" is sufficient for conviction. Conn. Gen. Stat.
§ 53a-49(a). That "substantial step" need not
include the use, attempted use, or threatened use of physical
force. Indeed, a "substantial step" can include
activities like "lying in wait, .. . reconnoitering the
place contemplated for the commission of the crime [, ] . . .
[or] possession of materials to be employed in the commission
of the crime," among many others. Id. §
53a-49(b). The statute itself makes clear that the elements
of attempt to commit robbery could clearly be met without any
use, attempted use, or threatened use of violence whatsoever.
Therefore, as with conspiracy, the Elements Clause cannot
support the categorical inclusion of attempt as a crime of
violence by Application Note 1.
Government makes several additional arguments in support of
its position that the Note controls here, but none are
convincing. First, the Government argues that the Second
Circuit's recent holding in U.S. v. Barrett, 903
F.3d 166 (2d Cir. 2018), that conspiracy to commit Hobbs Act
robbery is categorically a crime of violence for purposes of
18 U.S.C. § 924(c) should lead this Court to reach a
similar conclusion about conspiracy to commit robbery in
violation of Connecticut statute for purposes of the career
offender enhancement. However, the reasoning of the
Barrett court makes clear that the Second
Circuit's conclusion in that case does not apply here.
Under 18 U.S.C. § 924(c), a "crime of
violence" includes those crimes which have "as an
element the use, attempted use, or threatened use of physical
force," mirroring the language of the Elements Clause of
USSG § 4B1.2(a)(1). However, § 924(c) also provides
that crimes of violence include those which "by [their]
nature, involve a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense." The career offender
guideline includes no similar "substantial risk"
definition of a crime of violence. The Barrett court
made clear that the decision to categorically include
conspiracy to commit Hobbs Act robbery among crimes of
violence for purposes of § 924(c) is predicated upon the
"substantial risk" definition, not upon
the elements-based definition which § 924(c) shares with
§ 4B1.2(a)(1). Barrett, 903 F.3d at 177
(holding that where the substantive offense is
"categorically a crime of violence," as Hobbs Act
robbery is, then "a conspiracy to commit that crime, by
its very nature presents a substantial risk of physical
force, so as also to be a violent crime under §
924(c)(3)(B)" (internal quotation omitted)). Because the
inclusion by the Barrett court of conspiracy to
commit Hobbs Act robbery among categorical crimes of violence
was based on a definition of "crime of violence"
which does not apply to the career offender enhancement, that
decision does not dictate a similar result here.
Government also argued at sentencing that the Court should
give effect to Application Note 1 as it clearly indicates the
intent of the drafters of the Guidelines themselves. However,
that reasoning was rejected by the Supreme Court in
Stinson, holding that it is not "helpful to
treat commentary [to the Sentencing Guidelines] as a
contemporaneous statement of intent by the drafters or
issuers of the guideline, having a status similar to that of,
for example, legislative ...