Michael Mao pleaded guilty to conspiracy to distribute controlled substances and conspiracy to commit money laundering for a scheme involving the distribution of MDMA and buprenorphine within a Virginia correctional facility. The Probation Office calculated his sentencing range based on a career offender enhancement under U.S.S.G. § 4B1.1, which applies if a defendant has at least two prior felony convictions for crimes of violence or controlled substance offenses. Mao objected to this classification, arguing that his prior Virginia conviction for using a firearm during a robbery was not a crime of violence because it did not require force against a person, and that his instant drug trafficking conviction should not count as a controlled substance offense because conspiracy is an inchoate crime. The district court rejected both arguments and imposed a 121-month sentence.
The court reviewed the classification of Mao's prior convictions de novo. First, regarding the Virginia firearm-robbery conviction, the court applied the modified categorical approach. It found that the statute, Va. Code Ann. § 18.2-53.1, is divisible and that Mao was convicted of robbery. The court held that generic robbery requires force that creates an immediate danger to the person. Because the Virginia statute requires the use or display of a firearm while committing robbery, and robbery under Virginia law involves violence or intimidation, the conviction necessarily entails the use or threatened use of physical force against another. The court rejected Mao's hypothetical scenarios, noting that the statute requires the firearm to be used or displayed during the robbery, which inherently implicates the threat of immediate violence. Second, regarding the controlled substance offense argument, the court noted that Mao conceded the issue was foreclosed by First Circuit precedent. The court reiterated that Application Note 1 to § 4B1.2 explicitly includes aiding, abetting, conspiring, and attempting to commit controlled substance offenses. The court explained that the law-of-the-circuit doctrine binds panels to prior decisions unless they are contradicted by controlling authority or there are sound reasons to believe the court would change its mind. The court found that recent Supreme Court cases like Loper Bright and Kisor did not provide such a reason, as the Guidelines Commentary is treated differently than agency statutory interpretation. Furthermore, the court agreed with the Fifth Circuit that the structure and history of the Guidelines support the inclusion of inchoate crimes, as the Commission has historically intended to punish repeated similar offenses sternly.
Mao's 121-month sentence stands, and he remains classified as a career offender. The decision reinforces the First Circuit's stance that conspiracy to distribute drugs counts toward career offender status, maintaining a circuit split with the Fourth and Eleventh Circuits. The ruling clarifies that Virginia firearm-robbery convictions satisfy the crime of violence element for sentencing enhancements, limiting arguments based on the specific mechanics of Virginia common-law robbery.
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