United States v. Glenn Flemming
2013 U.S. App. LEXIS 14771
| 3rd Cir. | 2013Background
- Flemming was convicted in 2004 of crack cocaine and firearm offenses; his Guidelines range initially 262–327 months due to career offender designation under §4B1.1.
- A §4A1.3 downward departure was granted in 2001, lowering the range to 92–115 months based on crack-cocaine offense levels, with Flemming ultimately sentenced to 175 months plus a firearm term.
- Amendments 706, 750 lowered crack-cocaine base levels (retroactive), and Flemming sought retroactive reductions under 18 U.S.C. § 3582(c)(2).
- This motion was denied; the parties dispute whether Amendment 759’s new definition of “applicable guideline range” allows resentencing for career offenders who received §4A1.3 departures.
- The Third Circuit reviews de novo whether the new definition governs eligibility for resentencing under § 3582(c)(2).
- Court adopts that the applicable guideline range is the range tied to the offense level and history category before any departure, and that §4A1.3 departures are ignored for determining that range.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Flemming is eligible for a § 3582(c)(2) reduction) | Flemming argues Amendment 759 lowers his range after a §4A1.3 departure, rendering him eligible. | Flemming contends the applicable range remains the pre-departure career-offender range, not lowered by amendments. | Not eligible; new definition of applicable guideline range excludes post-departure reductions. |
| Definition of applicable guideline range after Amendment 759 | Application of amended definition could include lowered crack levels post-departure. | Range is determined before any departure or variance; departure does not affect the applicable range. | Applicable guideline range is determined before departures; Flemming not eligible. |
| Whether §4A1.3 departures can affect eligibility for resentencing | Read Flemming II to allow post-departure consideration for resentencing. | Amendment 759 supersedes and bars such resentencing for career offenders with §4A1.3 departures. | §4A1.3 departures are ignored in determining the applicable range; no resentencing. |
| Impact of other circuits' interpretations under Amendment 759 | Lower courts/readings align with lenity; the new definition should permit relief. | Circuits have adopted definitions aligning with ineligibility for Flemming-type defendants. | Affirms that Flemming is ineligible; aligns with Savani/Steele line of reasoning. |
Key Cases Cited
- United States v. Flemming, 617 F.3d 252 (3d Cir. 2010) (earlier reversal on eligibility for § 3582(c)(2) reduction; context for Amendment 759)
- United States v. Savani, No official reporter cited in text (3d Cir. 2013) (discussed in context of 'applicable guideline range' timing)
- United States v. Doe, 564 F.3d 305 (3d Cir. 2009) (pre-Amendment 759 interpretation of applicable guideline range)
- United States v. Ware, 694 F.3d 527 (3d Cir. 2012) (assumed impact of Amendment 759 on eligibility)
- United States v. Steele, 714 F.3d 751 (2d Cir. 2013) (per curiam; addressing Amendment 759 and eligibility)
- United States v. Barney, 672 F.3d 228 (3d Cir. 2012) (addressed eligibility under amendment discussions)