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First Circuit: Failure to Prove a Prior Conviction Was a ‘Controlled Substance Offense’ Under the Guidelines Requires Resentencing

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit held that when the Government fails to prove a prior conviction was for a controlled substance as defined by U.S. Sentencing Guideline (“U.S.S.G.”) 4B1.2(b), the defendant is entitled to resentencing.

Jose Martinez-Benitez pleaded guilty to possessing a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1). The trial court determined Martinez had previously been convicted of possessing a controlled substance with intent to distribute, which qualified as a predicate “controlled substance offense,” i.e., a state-law crime “punishable by imprisonment for a term exceeding one year, that prohibits ... the possession of a controlled substance ... with the intent to ... distribute.” U.S.S.G. § 4B1.2b. The Guideline also covers “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” Id. This resulted in the trial court increasing Martinez’s base offense level from 14 to 20. U.S.S.G. § 2K2.1(a)(4)(A). Martinez was sentenced to 34 months, and he appealed.

The Court stated that at sentencing the burden is on the Government to prove by a preponderance of the evidence that a defendant has been previously convicted of the predicate offense. United States v. Davila-Felix, 667 F.3d 47 (1st Cir. 2011). The Court observed that Martinez had previously been charged with “knowingly or intentionally possessing heroin with intent to distribute, in violation of Puerto Rico’s Controlled Substances Act (“CSA”) P.R. Laws Ann. tit. 24, § 2401 (“Article 401”). However, Martinez ultimately pleaded guilty to “attempting or conspiring to commit an offense” under P.R. Laws Ann. tit. 24 section 2406 (“Article 406”) and received a three-year suspended sentence. The Court also noted that Puerto Rico’s CSA prohibits simple possession of a controlled substance with no intent to distribute. P.R. Laws Ann. tit. 24, § 2404 (“Article 404”). A conviction under Article 404 calls for a three-year prison term.

At oral argument, the Government conceded that Martinez’s Article 406 conviction for “attempt/conspiracy” could have stemmed from the original Article 401 “possession with intent to distribute” charge being lowered to an Article 404 “simple possession” offense. In other words, Martinez could have been found guilty of attempting or conspiring to possess a controlled substance without any attempt to distribute. Such a conviction would not qualify as a predicate offense under U.S.S.G. § 4B1.2(b). United States v. Roman-Huertas, 848 F.3d 72 (1st Cir. 2017).

The Court faulted the Government for not producing at Martinez’s sentencing the guilty plea colloquy of his previous conviction that would’ve revealed the offense to which he had pleaded guilty. Instead, at sentencing, the trial court relied on a footnote from Puerto Rico v. Ramos Rivas, 171 D.P.R. 826 (2007) that said, “[I]f an Article 401 charge is reclassified as an Article 406 offense, a court must refer back to Article 401 to determine the proper penalty.” Since the footnote dealt with facts specific to Ramos Rivas, the Court determined the trial court erred in relying on it.

The Court concluded that the Government failed to prove by a preponderance of evidence that Martinez had a qualifying predicate offense. It further concluded that the Government was precluded from offering any additional evidence at a resentencing hearing. Roman-Huertas. Accordingly, the Court vacated and remanded for resentencing with instructions. See: United States v. Martinez-Benitez, 914 F.3d 1 (1st Cir. 2019). 

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Related legal case

United States v. Martinez-Benitez



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