James K. Bredar, United States District Judge.
On July 10, 2017, the Defendant appeared for sentencing. The parties sharply disagreed on whether "career offender" status should be accorded to the Defendant when the sentencing guidelines were computed in his case. All similarly situated co-defendants in this case (and in a companion matter, Crim. No. JKB-16-0484) joined the Defendant's contention that the
The rule of lenity has been a cornerstone of American jurisprudence since the early days of the republic, demanding that in the criminal context, statutory ambiguity should be resolved in favor of the defendant. United States v. Santos, 553 U.S. 507, 515, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008); see also United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 105, 5 S.Ct. 37 (1820) ("[P]robability is not a guide which a court, in construing a penal statute, can safely take."). Ambiguities in the sentencing guidelines demand that in this case the Court decline to apply the career offender enhancement, U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 4B1.2(b) (U.S. Sentencing Comm'n 2016), in determining Defendant Lisbon's sentence.
The career offender enhancement refers to the sentencing guidelines' application of an increased offense level and increased criminal history category when (1) a defendant is at least eighteen years of age at the time of the offense, (2) the offense of conviction is a felony that is either a crime of violence
U.S.S.G. § 4B1.2(b). The commentary to that provision indicates that "[f]or purposes of this guideline — `crime of violence' and `controlled substance offense' include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Id. cmt. n.1. However, the guideline text itself neither mentions conspiracy or other inchoate offenses, nor does it provide any textual clues to indicate that its definition should be read expansively.
The Court need not rule on the close and difficult question of whether the commentary's inclusion of conspiracy and other inchoate offenses is inconsistent with the text of the sentencing guidelines or whether it simply interprets the text. Indeed, it is in the very subtlety of that inquiry that the answer is found to the core question, which is, of course, whether the career offender provision applies here at all.
The Court is confronted with an abstract question: is commentary language that expands the scope of the coverage of an otherwise clearly stated and limited guideline, such that offenses not otherwise covered are now swept in, inconsistent with that guideline? Or, is such commentary merely interpretive and explanatory? At some point, expansion creates inconsistency. But at what point? Put differently, here we have commentary that clearly and materially expands the scope of a guideline. But does the commentary encourage so much expansion that it creates an inconsistency with the guideline? The Court could attempt to define the point at which expansion becomes inconsistency and then sentence based on that subtle conclusion, but should it do so? Should years of a man's liberty turn on such fine line drawing? Wherever the Court ultimately drew the line would be subject to reasonable debate. And, it is that circumstance that implicates the rule of lenity.
Penal provisions should not be so ambiguous or subtle that their plain meaning is subject to reasonable debate. Because such a circumstance prevails here, the rule of lenity dictates that rather than attempt the drawing of the finest of lines, defining when expansion becomes inconsistency, instead the Court should abandon the subtle "line drawing" exercise and simply resolve the ambiguity in the Defendant's favor. Accordingly, applying the rule of lenity, the Court finds that Defendant Lisbon's conviction for RICO conspiracy does not constitute a "controlled substance offense" subject to enhancement under the career offender provision.
Alternatively, even if § 4B1.2(b) "controlled substance offenses" can include conspiracies generally, the "formal categorical approach" to consideration of predicate offenses counsels in favor of considering the crime of RICO conspiracy to be beyond the scope of the career offender enhancement provision.
In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court established a principle termed the "formal categorical
Taylor also acknowledged a "narrow range of cases" in which a sentencing court may go beyond the statutory elements to determine whether a sentencing guideline applies. Id. at 2284. Called the "modified categorical approach," this rule applies in cases where (1) the statutory offense is divisible into two or more distinct versions, each defined by alternative elements, and (2) at least one of those alternatives matches or is subsumed by the generic definition of the crime in the sentencing guidelines. Id. If both of these conditions are met, a sentencing court may look beyond the statutory elements to examine a limited class of documents (e.g., jury instructions) and determine whether the sentencing guideline at issue applies to the version of the crime of which the defendant was convicted. Id.
In the instant case, the Court need not decide whether the offense of RICO conspiracy may be defined by alternative elements
Regardless of the type of racketeering activity at issue, a conviction for RICO conspiracy requires no proof of any overt act in furtherance of the conspiracy. See Salinas v. United States, 522 U.S. 52, 63, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997).
Thus, as the Court faces the prospect of defining "generic conspiracy" by looking to contemporary usage, it again finds itself in a position where any determination it might make would be subject to reasonable debate. This time, even if "generic conspiracy" is a predicate offense subject to the career offender enhancement provision, it is ambiguous whether "generic conspiracy" requires the demonstration of an overt act in furtherance of the conspiracy (the strongest argument is that it does). It is thus at least ambiguous whether any type of RICO conspiracy would fit within the generic definition, given the looser elements of RICO conspiracy (i.e., no requirement for an overt act). As stated above, penal provisions should not be so ambiguous as to occasion reasonable debate as to their meaning. Because there could be reasonable debate as to whether RICO conspiracy qualifies as a generic conspiracy, and because the applicability of the career offender enhancement in this case could depend on such a determination, the rule of lenity demands not that the ambiguity be reduced to a precise answer but instead that it simply be resolved in favor of the defendant. Accordingly, applying the rule of lenity to RICO conspiracies, such conspiracies do not count as generic conspiracies, and therefore such conspiracies cannot serve as career offender predicates.
In summary, if some conspiracy offenses are subject to enhancement under the career offender provision (this Court says none is, supra, Part I), then the specific offense of RICO conspiracy nonetheless fails to constitute a predicate offense under the career offender provision because its elements may not fit within the limit set by the generic definition of conspiracy. The Court never reaches further questions related to divisibility as they need not be answered to decide this issue.
That Defendant Lisbon's sentencing guideline range would effectively triple based on minute linguistic details risks the imposition of a punishment that is unfairly arbitrary. Sentencing according to such a "can't see the forest for the trees" rubric would be flatly dangerous to the quest for justice, and the Court simply will not do it.