US v. Mao
Split Score
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Case Summary
Disposition
Affirmed
The First Circuit affirmed Michael Mao’s 121-month sentence, holding that his prior Virginia conviction for using a firearm during robbery is a crime of violence and that his federal conspiracy to distribute controlled substances counts as a controlled substance offense under the career-offender guideline. The court rejected Mao’s request to abandon First Circuit precedent on the latter point, acknowledging but declining to join the existing circuit split on whether inchoate drug crimes fall within § 4B1.2(b).
Circuit Split Identified
Legal Issue
Whether inchoate drug offenses such as conspiracy qualify as a “controlled substance offense” under U.S.S.G. § 4B1.2(b) for purposes of the career-offender enhancement.
Circuit Positions
Inchoate offenses (attempt, conspiracy, aiding and abetting) ARE controlled substance offenses under § 4B1.2(b); Application Note 1 is consistent and authoritative.
Inchoate offenses are NOT controlled substance offenses under § 4B1.2(b); Application Note 1 improperly expands the guideline.
Conflict Summary
Several circuits (including the First) interpret § 4B1.2(b) together with Application Note 1 to include inchoate crimes like conspiracy and attempt, while other circuits hold that the text of § 4B1.2(b) is limited to completed drug-trafficking offenses and that the commentary cannot expand the guideline.