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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-8533
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNELL GARDNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
( March 31, 1994 )
Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit
Judges.
POLITZ, Chief Judge:
Convicted of possession with intent to distribute crack
cocaine and sentenced to prison for 262 months, Bernell Gardner
appeals, challenging the validity of U.S.S.G. § 4B1.1, the career
offender guideline. We affirm.
The authorities seized 24.2 grams of crack cocaine from
Gardner. Under U.S.S.G. § 2D1.1 that quantity would result in an
offense level of 28. Under section 4B1.1, however, because Gardner
was over 18 years old and had two prior violent felony convictions

his offense level became 34. Gardner's two prior convictions for
voluntary manslaughter would have resulted in a criminal history
category of IV. Section 4B1.1 boosted that classification to VI.
An offense level of 34 with a criminal history category of VI
results in a sentencing range of 262 to 327 months.
Gardner challenges the validity of section 4B1.1, contending
that Congress authorized increases in career offender criminal
history scores, but did not empower the Sentencing Commission to
increase their offense levels. This objection was not raised in
the trial court; our review is thus limited to a search for plain
error,1 and we may vacate the sentence only if section 4B1.1 goes
beyond the Commission's statutory authority.2
Gardner's ultra vires argument rests on his narrow reading of
the career offender statute, 28 U.S.C. § 994(h), which requires the
Commission to promulgate guidelines that "specify a sentence to a
term of imprisonment at or near the maximum term authorized for
categories of defendants in which the defendant" is over 18 and has
been convicted of three violent or drug-related felonies. He urges
that the term "categories of defendants" can only refer to criminal
history categories; therefore, in implementing section 994(h), the
section 4B1.1 enhancement of both the criminal history scores and
the offense level goes beyond the legislative delegation.
1United States v. Cockerham, 919 F.2d 286 (5th Cir. 1990).
2United States v. Matovsky, 935 F.2d 719 (5th Cir. 1991)
(sentence must be upheld unless imposed: in violation of law;
because of an incorrectly applied guideline; or outside applicable
guidelines). A sentence under a guideline without statutory
authorization would be a sentence imposed in violation of law.
2

Gardner's reading of the term is based on the following flawed
epagoge: statutes must be construed in an internally consistent
fashion, giving terms the same meaning throughout; sections 994(d)
and (h) both use the term "categories of defendants"; the
Commission
created
criminal
history
categories
under
section 994(d); therefore, section 994(h) can only refer to
criminal history categories when it uses that term. Gardner thus
concludes that "the plain meaning of section 994(h) is that the
repeat offenders identified by the statute are to be sentenced at
or near the maximum term for the highest criminal history
category." Based on this analysis, according to Gardner, the
Commission was authorized to enhance criminal history scores but
not offense levels.
We are not persuaded that the language of section 994(h)
permits, much less compels, that interpretation. We conclude that
"categories of defendants" as used in section 994(h) refers to
career offenders.3 The criminal history category is, at most, only
one of the several categories of defendants addressed in various
parts of section 994.4
3"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" in which the defendant has been
convicted of his third violent or drug-related felony. 28 U.S.C.
§ 994(h).
4Indeed, Congress authorized the Commission to take into
account such factors as age, education, vocational skills, mental,
emotional, and physical condition, employment, family and community
ties, role in the offense, and criminal history, as it categorizes
defendants. 28 U.S.C. § 994(d). The challenged statutory
reference to categories is not limited to criminal history scoring.
3

We would further note that the Commission and the courts have
construed the accompanying phrase "maximum term authorized" as
meaning the maximum term authorized by statute for the offense
involved.5 With this in mind, Gardner's interpretation becomes
untenable. Increasing his criminal history category to VI but
keeping his offense level at 28 would result in a guideline
sentencing range of 140 to 175 months, far below the 40-year
statutory maximum provided for the instant offense.
We conclude that section 4B1.1 is authorized by the statute
and, accordingly, is a valid exercise of the power accorded the
Sentencing Commission. The sentence appealed is therefore
AFFIRMED.
5U.S.S.G. § 4B1.1, comment; United States v. Pearson, 910 F.2d
221, 222 (5th Cir. 1990), cert. denied, 498 U.S. 1093 (1991);
United States v. Price, 990 F.2d 1367, 1369 (D.C. Cir. 1993)
(section 994(h) requires Commission to promulgate guidelines which
will produce sentences for career offenders "'at or near the
maximum for the offense charged.'").
4