United States v. Smith, 54 F.3d 690 (11th Cir. 1995). · Go Syfert
United States v. Smith, 54 F.3d 690 (11th Cir. 1995). Cases Citing This Book View Copy Cite
45 citation events (41 in the last 25 years) across 10 distinct courts.
Strongest positive: Santiago v. United States (flsd, 2023-11-08)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 25 distinct citers. How cited ↗
discussed Cited as authority (rule) Santiago v. United States
S.D. Fla. · 2023 · confidence medium
At the time Movant was sentenced on October 22, 2021 [CR ECF No. 174], binding Eleventh Circuit law dictated that Movant’s instant offense, in this case, conspiracy to possess with intent to distribute 400 grams or more of fentanyl in violation of 21 U.S.C. § 846 (Count 1), qualified as a “controlled substance offense.” United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995).
discussed Cited as authority (rule) United States v. Roberto Castillo
9th Cir. · 2023 · confidence medium
Id. at 387.4 However, before Kisor was decided, the majority of the remaining circuits agreed with our decisions in Vea- Gonzales and Crum that because Application Note 1 was consistent with the “controlled substance offense” guideline, courts would defer to it, making inchoate offenses “controlled substance offenses.” See United States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994); United States v. Jackson, 60 F.3d 128, 131 (2d Cir. 1995); United States v. Hightower, 25 F.3d 182, 187 (3d Cir. 1994), overruled by Nasir, 17 F.4th 459 ; United States v. Mendoza-Figueroa, 65 F.3d 691 , 692�…
discussed Cited as authority (rule) Summers v. United States
M.D. Fla. · 2023 · confidence medium
The Eleventh Circuit originally affirmed the defendant’s sentence based on prior panel precedent, in which the court concluded “that application note 1 to U.S.S.G. § 4B1.2 ‘constitutes a binding interpretation of the term ‘controlled substance offense.’” United States v. Dupree, 849 F. App’x 911 , 912 (11th Cir. 2021) (quoting United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995)), reh’g en banc granted, opinion vacated, 25 F.4th 1341 (11th Cir. 2022), and on reh’g en banc, 57 F.4th 1269 (11th Cir. 2023).
cited Cited as authority (rule) United States v. Brandon Romel Dupree
11th Cir. · 2023 · confidence medium
United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995) (applying Stinson to the commentary in guideline section 4B1.2).
discussed Cited as authority (rule) Barker v. United States
N.D.W. Va. · 2022 · confidence medium
See United States v. Richardson, 958 F.3d 151, 154-55 (2d Cir. 2020); United States v. Adams, 934 F.3d 720, 729 (7th Cir. 2019); United States 42 BARKER v. UNITED STATES 1:19CV134/1:16CR31-1 MEMORANDUM OPINION AND ORDER DENYING PETITIONER’S § 2255 PETITION, DISPOSING OF MOTIONS RELATED TO PETITIONER’S § 2255 PETITION, DENYING DEFENDANT’S MOTION FOR COMPASSIONATE RELEASE, AND DISPOSING OF DEFENDANT’S PRO SE CRIMINAL MOTIONS v. Smith, 54 F.3d 690, 693 (11th Cir. 1995); United States v. Mendoz-Figueroa, 65 F.3d 691, 693 (8th Cir. 1995); United States v. Piper, 35 F.3d 611, 617 (1st Cir.…
discussed Cited as authority (rule) United States v. Babcock
10th Cir. · 2022 · confidence medium
Nevertheless, the Commission will endeavor to provide, to the extent practicable, comparable opportunities for public input on proposed policy statements and commentary considered in conjunction with guideline amendments.” USSC, Rule of Practice and Procedure 4.3. 22 Appellate Case: 20-4003 Document: 010110714502 Date Filed: 07/21/2022 Page: 23 consistent); United States v. Richardson, 958 F.3d 151 , 154–55 (2d Cir. 2020), cert. denied, 141 S. Ct. 423 (2020) (same); United States v. Smith, 989 F.3d 575, 585 (7th Cir.), cert. denied, 142 S. Ct. 488 (2021) (same); United States v. Vea-Gonzal…
discussed Cited as authority (rule) United States v. Alton Jackson
11th Cir. · 2021 · confidence medium
“The authority granted by § 994(a) is implicit in all the provisions of the guidelines.” United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995) (quotation marks and alteration omitted, emphasis in original). 4 USCA11 Case: 20-13277 Date Filed: 09/08/2021 Page: 5 of 15 The Violent Crime Control and Law Enforcement Act of 1994 (“the Act”) prohibited the ownership or possession of “large capacity ammunition feeding device[s],” defining such devices as those capable of being “readily restored or converted to accept, more than 10 rounds of ammunition” but excepting “attached t…
discussed Cited as authority (rule) United States v. Brandon Romel Dupree (2×) also: Cited "see"
11th Cir. · 2021 · confidence medium
We also held in Smith that application note 1 to U.S.S.G. § 4B1.2 “constitutes a binding interpretation of the term ‘controlled substance offense.’” United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995). 3 USCA11 Case: 19-13776 Date Filed: 06/14/2021 Page: 4 of 4 Here, the district court did not err in finding that Dupree’s conviction for 21 U.S.C. § 846 conspiracy was a controlled substance offense within the meaning of the Sentencing Guidelines.
discussed Cited as authority (rule) United States v. Richardson
2d Cir. · 2020 · confidence medium
Accordingly, the district court (en banc) (concluding that Application Note 1 “is a reasonable interpretation of the career offender guidelines”); United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995); United States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994) (concluding that Application Note 1 “comports sufficiently with the letter, spirit, and aim of the guideline to bring it within the broad sphere of the Sentencing Commission’s interpretive discretion”); United States v. Hightower, 25 F.3d 182, 187 (3d Cir. 1994).
cited Cited as authority (rule) United States v. Marcus Crum
9th Cir. · 2019 · confidence medium
United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995); United States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994); United States v. Hightower, 25 F.3d 182, 187 (3d Cir. 1994).
discussed Cited as authority (rule) United States v. Bryan Shamar Little (2×)
11th Cir. · 2019 · confidence medium
United States v. Smith, 54 F.3d 690, 691 (11th Cir. 1995).
cited Cited as authority (rule) United States v. Scotty Hagans
11th Cir. · 2018 · confidence medium
United States v. Smith, 54 F.3d 690, 691 (11th Cir. 1995).
discussed Cited as authority (rule) United States v. Arthur Kyle Lange
11th Cir. · 2017 · confidence medium
The commentary in Application Note 1 further states that this definition includes inchoate crimes: ‘“Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” Id. § 4B1.2(a) cmt. n.l (emphasis omitted). “[T]h[is] commentary constitutes ‘a binding interpretation’ of the term ‘controlled substance offense.’ ” United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995) (citation omitted). “[0]ur interpretation of the Sentencing Guidelines is governed by traditional rules of statu…
discussed Cited as authority (rule) United States v. Paul Kenneth Pridgeon (2×) also: Cited "see, e.g."
11th Cir. · 2017 · confidence medium
United States v. Smith, 54 F.3d 690, 691 (11th Cir. 1995). 3 .
examined Cited as authority (rule) United States v. John Albert Pearson (3×) also: Cited "see"
11th Cir. · 2016 · confidence medium
The “authority granted by § 994(a) is implicit in all the provisions of the guidelines.” United States v. Fernando Smith (“Fernando Smith"), 54 F.3d 690, 693 (11th Cir. 1995) (holding the Commission' was within its authority under § 994(a) to construe attempts to commit narcotics crimes as “controlled substance offenses” for purposes of § 4B1.1) (citation and internal quotation marks omitted).
discussed Cited as authority (rule) United States v. Walter Eric Holmes (2×)
11th Cir. · 2016 · confidence medium
The “authority granted by § 994(a) is implicit in all the provisions of the guidelines.” United States v. Smith, 54 F.3d 690, 693 (11th Cir.1995) (holding that classifying attempts to commit narcotics crimes as “controlled substance offenses” was within the Commission’s authority pursuant to § 994(a)) (emphasis omitted); see also Weir, 51 F.3d at 1032 (holding that the Commission did not overstep its statutory mandate in classifying drug conspiracies as “controlled substance offenses” despite not being enumerated offenses under § 994(h)).
cited Cited as authority (rule) United States v. Steven Gibson
11th Cir. · 2006 · confidence medium
United States v. Smith, 54 F.3d 690, 691 (11th Cir.1995); United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005) (quoting United States v. Bush, 126 F.3d 1298, 1299 (11th Cir.1997)).
discussed Cited as authority (rule) United States v. Hernan Marcelo Vega
11th Cir. · 2004 · confidence medium
Reviewing this question of law de novo, see, e.g., United States v. Smith, 54 F.3d 690, 691 (11th Cir.1995), we find that it did. 4 In 1984, Congress created the Commission, charging it with "establish[ing] sentencing policies and practices for the Federal criminal justice system." 28 U.S.C. § 991 (b) (1985).
cited Cited as authority (rule) United States v. Vega
11th Cir. · 2004 · confidence medium
Reviewing this question of law de novo, see, e.g., United States v. Smith, 54 F.3d 690, 691 (11th Cir.1995), we find that it did.
discussed Cited as authority (rule) United States v. Johnson
D. Kan. · 1999 · confidence medium
United States v. Smith, 54 F.3d 690, 692-93 (11th Cir.), cert. denied, 516 U.S. 926 , 116 S.Ct. 329 , 133 L.Ed.2d 229 (1995); United States v. Costello, 68 F.3d 475 , 1995 WL 611153 (6th Cir.1995); United States v. Carpenter, 11 F.3d 788, 791 (8th Cir.1993), cert. denied, 511 U.S. 1043 , 114 S.Ct. 1570 , 128 L.Ed.2d 214 (1994).
discussed Cited as authority (rule) United States v. Frazier
unknown court · 1996 · confidence medium
“This court applies the de novo standard of review when interpreting questions of law arising under the Sentencing Guidelines.” United States v. Smith, 54 F.3d 690, 691 (11th Cir.), cert. denied, — U.S. -, 116 S.Ct. 329 , 133 L.Ed.2d 229 (1995).
discussed Cited as authority (rule) United States v. Larry Frazier, United States of America v. Darence Eugene Hutchinson, Kenya Brown, Albert Lintez Brown, A/K/A \Pee Pee\" A/K/A \"James\"
unknown court · 1996 · confidence medium
"This court applies the de novo standard of review when interpreting questions of law arising under the Sentencing Guidelines." United States v. Smith, 54 F.3d 690, 691 (11th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 329 , 133 L.Ed.2d 229 (1995). 11 Section 4B1.1 of the guidelines classifies a defendant as a career offender if 12 (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 convic…
cited Cited as authority (rule) United States v. Antoine Chappell
6th Cir. · 1996 · confidence medium
This exact argument was rejected by the Eleventh Circuit in United States v. Smith, 54 F.3d 690, 692-93 (11th Cir.), cert. denied, 116 S.Ct. 329 (1995).
discussed Cited "see, e.g." Rivero v. Ciolli
N.D. Ill. · 2022 · signal: see also · confidence medium
Ed. 2d 295 , 142 S. Ct. 488 (2021) (collecting cases); see also Untied States v. Lange, 862 F.3d 1290, 1294 (11th Cir. 2017) (“[Application Note 1] constitutes ‘a binding interpretation’ of the term ‘controlled substance offense.’”) (quoting United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995)).
discussed Cited "see, e.g." United States v. Chavez
10th Cir. · 2011 · signal: see, e.g. · confidence medium
See, e.g., United States v. Smith, 54 F.3d 690, 693 (11th Cir.1995) ("[W]e hold that the Commission, in construing attempts to commit narcotics crimes as controlled substance offenses for purposes of determining career offender status, acted within its authority pursuant to section 994(a).”); United States v. Mendoza-Figueroa, 65 F.3d 691, 694 (8th Cir.1995) (same); United States v. Jackson, 60 F.3d 128, 133 (2d Cir.1995) (”[W]e conclude that both 28 U.S.C. §§ 994 (a) and 994(h) vested the Commission with authority to expand the definition of ‘controlled substance offense’ to include…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Fernando SMITH, Defendant-Appellant
93-9225.
Court of Appeals for the Eleventh Circuit.
Jun 9, 1995.
54 F.3d 690
Sheila Tyler, Jimmy Hardy, Federal Defender Program, Inc., Atlanta, GA, for appellant., Joe D. Whitley, U.S. Atty., F. Gentry Shel-nutt, Jr., Amy Levin Weil, Asst. U.S. Attys., Atlanta, GA, for appellee.
Hatchett, Henderson, Young.
Cited by 28 opinions  |  Published
HATCHETT, Circuit Judge:

Appellant, Fernando Smith, appeals his bank robbery conviction and sentence, asserting that (1) the district court improperly gave the jury an instruction pursuant to Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); (2) the government presented insufficient evidence to sustain his conviction; (3) the district court erred in enhancing his sentence for possessing a firearm during the commission of the crime; and (4) the district court erroneously sentenced him as a career offender. Smith’s first three grounds for appeal lack merit and do not warrant further consideration. We reject Smith’s fourth contention that the Sentencing Commission lacks statutory authority to include attempts to commit narcotics crimes as controlled substances offenses for purposes of determining career offender status.

BACKGROUND

On July 22, 1993, a jury in the Northern District of Georgia found Smith guilty of robbing a bank in violation of 18 U.S.C. § 2113(a). Due to Smith’s prior state court convictions in Michigan for armed robbery and attempted possession with intent to deliver cocaine, the district court sentenced him as a career offender, pursuant to United States Sentencing Guidelines (U.S.S.G.) section 4B1.1. On September 28, 1993, the district court imposed a sentence of 210 months of imprisonment and 3 years of supervised release.

CONTENTIONS

Smith contends that he does not have a criminal history sufficient to warrant sentencing as a career offender because his pri- or state conviction for attempted possession with intent to deliver cocaine does not, under Congress’s mandate to the Sentencing Commission, constitute a “controlled substance offense” under U.S.S.G. § 4B1.1. Therefore, he argues that the Commission exceeded its authority in counting attempts to commit narcotics crimes as qualifying offenses for purposes of calculating career offender status. Accordingly, he asserts that the district court erred in sentencing him as a career offender.

The government responds that the Commission possesses .statutory authority to count attempts to commit drug crimes as predicate offenses for determining career offender status; thus, the district court did not err in its sentencing.

DISCUSSION

This court applies the de novo standard of review when interpreting questions of law arising under the Sentencing Guidelines. United States v. Rojas, 47 F.3d 1078, 1080 (11th Cir.1995).

Section 4B1.1 of the Sentencing Guidelines classifies a defendant as 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.

[*692] U.S.S.G. § 4B1.1. Smith concedes that the first and second criteria apply to him. The question before us, therefore, focuses on the third requirement: specifically, whether Smith’s prior conviction for attempted possession with intent to distribute cocaine properly constitutes a “controlled substance offense” under section 4B1.1.

Section 4B1.2(2) of the guidelines defines the term “controlled substance offense” to mean “an offense under a federal or state law prohibiting 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(2). Application Note 1 to the commentary to section 4B1.2 states that a “controlled substance offense” includes “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” U.S.S.G. § 4B1.2, comment, (n. 1). We have held previously that, when assessing whether to count a prior state conviction for career offender sentencing purposes, “a court should look at the elements of the convicted offense.... ” United States v. Lipsey, 40 F.3d 1200, 1201 (11th Cir.1994). Looking at the elements of attempted possession with intent to deliver cocaine, we conclude that the conviction at issue is a “controlled substance offense” under sections 4B1.1 and 4B1.2(2). In short, the district court had ample authority to sentence Smith as a career offender.

Smith contends, nonetheless, that the Sentencing Commission exceeded its statutory authority in including attempts to commit narcotics offenses within the purview of section 4B1.1. Smith first points to the Background Commentary to section 4B1.1, which states, in pertinent part: “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, (baekg’d). Based on this commentary, Smith argues that only those offenses enumerated in section 994(h) can serve as predicate controlled substance offenses for section 4B1.1 sentencing purposes.

Section 994(h) provides:

(h) 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—
(1) has been convicted of a felony that is—
(A) a crime of violence; or
(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959) and section 1 of the Act of September 15, 1980 (21 U.S.C. 955a); and
(2) has previously been convicted of two or more prior felonies, each of which is—
(A) a crime of violence; or
(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959) and section 1 of the Act of September 15, 1980 (21 U.S.C. 955a).

28 U.S.C. § 994(h). Smith argues that because the offense of attempting to commit a narcotics crime is not “described in” any of the statutes enumerated in section 994(h)(2)(B), the Commission cannot lawfully include attempts as predicate offenses for purposes of determining career offender status. [1]

Smith’s position has some support. The Fifth and District of Columbia Circuits have held that the Commission exceeded its authority in including conspiracy to commit a[*693] drug offense within the ambit of section 4B1.1. See United States v. Bellazerius, 24 F.3d 698, 700-02 (5th Cir.), cert. denied, — U.S. —, 115 S.Ct. 375, 130 L.Ed.2d 326 (1994); United States v. Price, 990 F.2d 1367, 1368-70 (D.C.Cir.1993). In so doing, those courts held that section 994(h) serves as the sole statutory basis for the career offender provision. See Bellazerius, 24 F.3d at 702 (“By identifying section 994(h) as its source of authority, the Sentencing Commission impliedly disclaimed reliance on other sources of authority.”); Price, 990 F.2d at 1369 (“We must conclude that the Commission fashioned Ch. 4, part B solely as an implementation of § 994(h).”).

Recently, however, this court, in holding that a conviction for conspiracy to commit a narcotics crime is a “controlled substance offense” under section 4B1.1, has declined to follow the reasoning of Bellazerius and Price. United States v. Weir, 51 F.3d 1031, 1032 (11th Cir.1995). The court in Weir held that “although the commentary to section 4B1.1 states that the career offender provision is implementing the mandate of 28 U.S.C. § 994(h), it does not suggest that section 994(h) is the only mandate for that provision. 28 U.S.C. § 994(a), the Guidelines’ enabling statute, provides independent grounds for the career offender provision. ...” Weir, 51 F.3d at 1031-32 (emphasis added). Indeed, the Commission states that “[t]he guidelines and policy statements” it promulgates “are issued pursuant to Section 994(a) of Title 28, United States Code.” U.S.S.G., Ch. 1, Part A, section 1. Section 994(a)(2) provides that the Commission shall promulgate “general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes set forth in section 3553(a)(2) of title 18, United States Code....” [2] 28 U.S.C. § 994(a)(2). In sum, “[t]he authority granted by § 994(a) is implicit in all the provisions of the guidelines.” United States v. Damerville, 27 F.3d 254, 257 (7th Cir.), cert. denied, — U.S. —, 115 S.Ct. 445, 130 L.Ed.2d 355 (1994) (emphasis in original). Therefore, we hold that the Commission, in construing attempts to commit narcotics crimes as controlled substance offenses for purposes of determining career offender status, acted within its authority pursuant to section 994(a).

Finally, we apply United States v. Stinson, — U.S. —, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), where the Supreme Court decided “that commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson, — U.S. at —, 113 S.Ct. at 1915. Application Note 1 to the commentary to section 4B1.2 explains that the term “controlled substance offense” located in guideline section 4B1.1 includes the offense of “attempting to commit” a narcotics crime. U.S.S.G. § 4B1.2, comment, (n. 1). This commentary does not run afoul of the Constitution, or, as discussed above, a federal statute; nor is it inconsistent with, or a plainly erroneous reading of, sections 4B1.1 or 4B1.2. As a result, the commentary constitutes “a binding interpretation” of the term “controlled substance offense.” Stinson, — U.S. at —, 113 S.Ct. at 1920. Accordingly, the district court properly followed the commentary in sentencing Smith as a career offender.

CONCLUSION

We reject Smith’s challenges to his conviction and sentence, and thus affirm the judgment of the district court.

AFFIRMED.

1

. Title 21 U.S.C. § 846 governs attempt and conspiracy to commit a drug offense. The statute reads: "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or the conspiracy.” 21 U.S.C. § 846.

2

. Section 3553(a)(2) states that sentences should reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence to criminal conduct, protect the public from further crimes of the defendant, and provide the defendant with needed correctional treatment. 18 U.S.C. § 3553(a)(2).