FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
Jóse Luis Novas-Debien for appellant.
Jonathan L. Gottfried, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, and Julia M.
Meconiates, Assistant United States Attorney, were on brief,
Lynch, Thompson, and Barron, Circuit Judges.
THOMPSON, CIRCUIT JUDGE
stake today is whether federal prosecutors proved José
Martínez Benítez's prior Puerto Rico-law
conviction (described below) is a "controlled substance
offense" for federal-sentencing purposes. Concluding
they did not, we vacate his sentence and remand for
resentencing consistent with this opinion.
Martínez's Case Got Here
pled guilty in federal court to possessing a firearm despite
his status as a felon. See 18 U.S.C. §
922(g)(1). His was a "straight plea," meaning he
and the government did not enter into any plea agreement. As
for how things shook out at sentencing, this is what you need
sentencing guidelines apply an enhanced base offense level of
20 for firearm offenses preceded by one felony conviction for
a "controlled substance offense," see
U.S.S.G. § 2K2.1(a)(4)(A) - a phrase that pertinently
covers a state-law crime, "punishable by imprisonment
for a term exceeding one year, that prohibits . . . the
possession of a controlled substance . . . with intent to . .
. distribute," id. § 4B1.2(b); see
also id. § 2K2.1 cmt. n.1 (referring the reader to
§ 4B1.2(b) and its accompanying application note 1 for a
definition of a "[c]ontrolled substance
offense"). And the phrase covers as well "the
offenses of aiding and abetting, conspiring, and attempting
to commit such offenses." Id. § 4B1.2 cmt.
n.1. Also of prime importance to the present controversy, the
government has "the burden of establishing" by a
preponderance of the evidence "that a prior conviction
qualifies as a predicate offense for sentencing enhancement
purposes." United States v.
Dávila-Félix, 667 F.3d 47, 55 (1st Cir.
2011); United States v. Bryant, 571 F.3d 147, 153
(1st Cir. 2009).
the documents presented by prosecutors at sentencing, the
district judge learned that years before his run-in with the
feds, Puerto Rico authorities had charged Martínez
with knowingly or intentionally possessing heroin with intent
to distribute, in violation of Puerto Rico's Controlled
Substances Act ("CSA"), see P.R. Laws Ann.
tit. 24, § 2401 - a law commonly called "Article
401." As relevant here, Article 401 criminalizes the
possession of certain controlled substances (including
heroin) with intent to "manufacture, distribute,
dispense, transport or conceal," see id. §
2401(a)(1), and calls for a "fixed" prison
"term" of 20 years, which may be increased to a
30-year "maximum" term or decreased to a 10-year
"minimum" term, if "aggravating" or
"extenuating" circumstances exist, see id.
§ 2401(b)(1)(A). We have dealt with Article 401 before,
for instance in an opinion holding that "intent to
conceal" is "a non-predicate offense" under
§ 4B1.2(b). See Dávila-Félix, 667
F.3d at 56 (concluding that "concealment of a controlled
substance" is "not commonly considered [a] drug
Martínez pled guilty to a "reclassified"
charge of "attempt[ing] or conspir[ing] to commit"
an "offense" under Puerto Rico's CSA,
see P.R. Laws Ann. tit. 24, § 2406 - a
provision colloquially called "Article 406," the
penalty for which "shall not exceed" the penalty
for the substantive "offense" that "was the
object of the attempt or conspiracy." By doing so, he
avoided a fixed mandatory 20-year prison term and made
himself eligible for a suspended sentence. See P.R.
Laws Ann. tit. 34, § 1027; see also P.R. Laws
Ann. tit. 24, § 2414. And ultimately, the Puerto Rico court
gave him a 3-year suspended sentence -- a sentence that has
special significance as to the nature of the offense.
should know too (because it affects the case's outcome,
for reasons explained presently) that Puerto Rico's CSA
bans not only possession-with-intent-to-distribute offenses
covered by Article 401, but also (among other things)
simple-possession offenses (i.e., offenses involving
possession of drugs not prescribed, with no intent to
distribute), see P.R. Laws Ann. tit. 24, § 2404
- a law widely referred to as "Article 404," which
outlaws the knowing or intentional possession of "any
controlled substance, unless such substance was obtained
directly, or pursuant to a valid prescription or order from a
practitioner, while acting in the course of his professional
practice, or except as authorized by this chapter."
Article 404 calls for a "fixed" 3-year prison
"term," which may be increased to a 5-year
"maximum" term or decreased to a 2-year
"minimum" term, if "aggravating" or
"extenuating" circumstances exist. We are also no
strangers to Article 404 - just consider United States v.
Román-Huertas, 848 F.3d 72 (1st Cir. 2017), which
holds that an Article 404 "mere possession
offense" does not count as a qualifying predicate
under § 4B1.2(b). Id. at 77; see also
United States v. Ramos-González, 775 F.3d 483,
507 n.27 (1st Cir. 2015).
off the sentencing in the federal case, the district judge
noted that while the charging document in the Puerto Rico
case listed Martínez's crime as an Article 401
possession-with-intent-to-distribute offense, the judgment
showed that he had pled to an Article 406
attempt-or-conspiracy offense. Then relying on a footnote in
Puerto Rico v. Ramos Rivas, 2007 TSPR 138, 171
D.P.R. 826, 2007 WL 2079844, at *1 n.1 (P.R. 2007) - which
says that if an Article 401 charge is reclassified as an
Article 406 offense, a court "must refer" back to
Article 401 to determine the proper "penalty" - the
judge ruled that Martínez's Article 406 conviction
was for an "attempted conspiracy to distribute
controlled substances." So the judge concluded that the
Article 406 conviction amounted to a "controlled
substance offense" under the guidelines and increased
Martínez's base offense level accordingly - from
14 to 20, which helped set his recommended guidelines range
at 30 to 37 months. And when all was said and done, the judge
sentenced him to 34 months in prison.
with this outcome, Martínez now appeals.