*1 Before: MARTIN, COLE, and GILMAN, Circuit Judges.
_________________
COUNSEL ARGUED: Robert D. Philyaw, PHILYAW & SMITH PLLC, Signal Mountain, Tennessee, for Appellant. Gregg L. Sullivan, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee. ON BRIEF: Robert D. Philyaw, PHILYAW & SMITH PLLC, Signal Mountain, Tennessee, for Appellant. Perry H. Piper, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.
GILMAN, J., delivered the opinion of the court. MARTIN, J. (pp. 15-17), also delivered a separate concurring opinion.
_________________
OPINION _________________ RONALD LEE GILMAN, Circuit Judge. In this case of first impression, we consider whether the United States Sentencing Commission failed to comply with Congress’s directive when it established ratios to estimate the amount of methamphetamine that can reasonably be manufactured from certain precursor chemicals. The issue arises in the context of Kevin Martin’s challenge to the sentence imposed on him after he pled guilty to five counts relating to the manufacture of methamphetamine and the possession of pseudoephedrine as a precursor chemical.
Relying on a Presentence Report (PSR) to which Martin had objected on Sixth Amendment grounds, the district court sentenced Martin to 189 months of imprisonment on each count, with the sentences to run concurrently. This sentence was calculated using a 50% ratio for converting the
1
amount of pseudoephedrine attributed to Martin into the сorresponding quantity of methamphetamine. The Sentencing Commission promulgated the conversion ratio in response to a statute enacted in 2000 that required it to establish a table of such ratios “based on scientific, law enforcement, and other data the Sentencing Commission considers appropriate.” Pub. L. No. 106- 310, § 3651(b)(2), 114 Stat. 1238-39 (2000).
On appeal, Martin argues that (1) the ratio set forth in the Sentencing Guidelines commentary
for converting the precursor chemical pseudoephedrine to methamphetamine is invalid both because
it does not comply with the statutory mandate and because it is arbitrary and capricious, (2) the
district court erred in calculating his criminal history category, and (3) the district court violated his
Sixth Amendment rights as interpreted by
United States v. Booker
,
I. BACKGROUND
A. Statutory and Guidelines framework
Congress responded to growing concerns about a “methamphetamine epidemic in America,”
United States v. Layne
,
(1) . . . review and amend its guidelines to provide for increased penalties such that those penalties corresponded to the quantity of controlled substance that could reasonably have been manufactured using phenylpropanolamine, or pseudoephedrine possessed or distributed. the quantity of ephedrine, (2) CONVERSION RATIOS. For the purposes of the amendments made by this subsection, the quantity of controlled substance that could reasonably have been manufactured shall be determined by using a table of manufacturing conversion ratios for ephedrine, phenylpropanolamine, and pseudoephedrine, which table shall be established by the Sentencing Commission based on scientific, law enforcement, and other data the Sentencing Commission considers appropriate . Pub. L. No. 106-310, § 3651(b), 114 Stat. 1238-39 (2000) (emphasis added).
The Commission responded to the congressional directive by promulgating Amendment 611. In relevant part, Amendment 611 provides a new chemical-quantity table for precursor chemicals like pseudoephedrine and a conversion table for those chemicals. See U.S. Sentencing Guidelines, App. C, Amendment 611 (Nov. 1, 2003). These tables adopt a 50% conversion ratio for pseudoephedrine, such that 2 grams of the chemical is equivalent to 1 gram of methamphetamine. That ratio was inserted into the tables in § 2D1.1, cmt. n.10, which already established that 1 gram of methamphetamine is to be treated as the equivalent of 20 kilograms of marijuana for sentencing purposes. Since the enactment of Amendment 611, therefore, 1 gram of pseudoephedrine is treated as the equivalent of 10 kilograms of marijuana.
In adopting the 50% conversion ratio for pseudoephedrine, the Commission relied on a report promulgated by the DEA’s Office of Diversion Control that was published on the website of the Office of National Drug Control Policy (ONDCP). That report “indicate[d] that the actual yield of methamphetamine from ephedrine and pseudoephedrine is typically in the range of 50 to 75 percent.” Proposed Amendments to the Sentencing Guidelines, 66 Fed. Reg. 7962, 7965 (Jan. 26, 2001) (citation omitted); see also U.S. Sentencing Guidelines, App. C, Amendment 611 (“This yield is based on information provided by the Drug Enforcement Agency (DEA) that the typical yield of these substances for clandestine laboratories is 50 to 75 percent.”). The DEA report on which the Commission based its conversion ratio is no longer available on the DEA website and is not part of the record in the present case. A document that appears to be the report, however, remains available through another publically accessible website. See Gene Haislip, Methamphetamine Precursor Chemical Control chemistry/dojmeth3.txt (stating that “[a]ctual yield in clandestine labs is typically in the range of 50 to 75 percent”) (last visited Feb. 14, 2006).
in
the 1990’s (1996), http://www.erowid.org/archive/rhodium/
When a defendant was convicted of an offense relating to the manufacture of
methamphetamine from precursor chemicals like pseudoephedrine prior to the passage of the Act
in 2000, the district court would rely on expert testimony to approximate the amount of
methamphetamine that could be produced from various precursor chemicals under differing
laboratory conditions. Experts would testify as to how much methamphetamine the precursor
chemicals would yield in a given situation, and the court would base its sentence on that yield
calculation.
See
U.S. Sentencing Guidelines § 2D1.1, cmt. 12 (2003) (“Where there is no drug
seizure or the amount seized does not reflect the scale of offense, the court shall approximate the
quantity of the controlled substance.”);
see also, e.g.
,
United States v. Brannon
,
The government charged Martin with five offenses relating to the production of methamphetamine, all of which stem from two incidents in late 2003. On November 24th of that year, Martin, who was on supervised release for previous methamphetamine offenses, rented a hotel room outside of Chattanooga, Tennessee. Law enforcement officers learned of a possible methamphetamine laboratory at the hotel and arrested five people found in a room rented by Christi Kinsey. Among those people was Genea Davis, Martin’s girlfriend, who consented to a search of the room that she was sharing with Martin. In that room, the officers discovered a hot plate, Coleman fuel, jars with multi-layered liquids, antifreeze, and a 1,000 milliliter flask—all materials commonly found in methamphetamine labs. Subsequent tests confirmed that at least some of the materials had been used to produce methamphetamine.
The government learned from Davis that several of the articles recovered at the hotel belonged to Rory Shankles, another known formulator of methamphetamine. Davis then led police to Shankles’s residence, a location where Davis reported having seen Shankles and Martin “cooking” methamphetamine two days earlier. Police obtained a warrant and searched the premises, recovering 24 empty bottles of pseudoephedrine, an over-the-counter decongestant that is also a raw material used to manufacture methamphetamine. Those bottles, when full, contained approximately 51 grams of pseudoephedrine. *4 The second incident occurred on December 2, 2003, when police searched an abandoned pickup truck that Martin had borrowed from his friends. Officers found items in the truck similar to those previously discovered during the search of the hotel room in November, as well as 1.1 grams of methamphetamine residue attached to coffee filters.
After Martin’s codefendants pled guilty to various methamphetamine-related charges, a grand jury returned a superseding indictment charging Martin with five counts stemming from the production of methamphetamine and the use of a hotel room as a methamphetamine lab. Martin entered a guilty plea to all five counts on the day before his trial was scheduled to begin. C. Sentencing proceedings
The final PSR attributed to Martin 51 grams of pseudoephedrine and 1.1 grams of seized
methamphetamine. Martin objected to the calculation of the drug quantity, arguing that the Supreme
Court’s intervening decision in
Blakely v. Washington
,
In calculating Martin’s criminal history category, the PSR assessed one point for each of four car thefts occurring between November 11 and December 4, 2000. Martin objected to these assessments both in writing and at the sentencing hearing, arguing that he had engaged in “a string of thefts or a common scheme to steal autos,” all of which were “related” offenses for which he should have been assessed only one point under U.S. Sentencing Guidelines Manual § 4A1.2(a)(2). The district court rejected Martin’s argument, observing that the offenses had taken place at different times and at different locations, and that the state courts had not entered an order consolidating the convictions. With Martin’s offense level and criminal history category yielding a Guidelines range of 168 to 210 months, he was sentenced to 189 months in prison and 6 years of supervised release. This timely appeal followed.
II. ANALYSIS
A. This court has the discretion to address Martin’s challenge to the validity of the
Guidelines drug-conversion ratios even though he did not raise the issue before the district court
The government’s initial argument is that Martin has waived any challenge to the validity
of the Guidelines provisions by failing to raise the issue before the district court. Citing
United
States v. Chesney
,
The general principle “that courts of appeals do not consider claims or arguments that were
not raised before the district court,” however, “is a prudential rule, not a jurisdictional one.”
United
States v. Hayes
,
In the present case, Martin’s challenges to the validity of the Guidelines provisions governing methamphetamine-related offenses are purely legal in nature, and both parties have fully briefed the issue. The specific challenges that Martin raises are also certain to recur, as the government acknowledges in its brief by citing to three consolidated cases raising analogous challenges that are currently pending before another panel of this court. Because the government has fully briefed the relevant issue and will therefore suffer no prejudice from our decision to address it at this time, we will exercise our discretion and take up Martin’s challenge despite his failure to raise it before the district court. B. Martin has not demonstrated that the Commission failed to follow the
Congressional command in formulating the 50% ratio
Martin presents two challenges to the validity of the pseudoephedrine-conversion ratio adopted by the Commission. First, he argues that “the Commission engaged in an unauthorized delegation” by failing to follow Congress’s stаtutory command. His second contention is that the use of the DEA report as the exclusive basis for the conversion ratio was “arbitrary and capricious” and therefore unlawful.
Even though the Supreme Court has declared that the Sentencing Guidelines are no longer
mandatory,
United States v. Booker
,
Because Martin did not present his statutory argument to the district court, we will apply the
“plain error” standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure.
See Johnson v. United States
,
First, we are to consider whether an error occurred in the district court. Absent any
error, our inquiry is at an end. However, if an error occurred, we then consider if the
error was plain. If it is, then we proceed to inquire whether the plain error affects
substantial rights. Finally, even if all three factors exist, . . . we must decide whether
the plain error affecting substantial rights seriously affected the fairness, integrity or
public reputation of judicial proceedings.
*6
United States v. Thomas
,
1. The plain language of the statute requires the Commission to base the conversion ratios, at a minimum, on both scientific and law enforcement data
Martin first argues that the Commission failed to heed Congress’s command to base the
determination of the quantity of methamphetamine that “could reasonably [be manufactured]” from
precursor chemicals “on scientific, law enforcement, and other data the Sentencing Commission
considers appropriate.” Pub. L. No. 106-310, § 3651(b)(2), 114 Stat. 1239 (2000). This failure to
adhere to the language of the statute renders the challenged provisions invalid, Martin contends,
because the Commission’s “significant discretion . . . must bow to the specific directives of
Congress.”
United States v. LaBonte
,
At issue in
LaBonte
was the Commission’s interpretation of statutory language that directed
the Commission to “assure that the guidelines specify a sentence to a term of imprisonment at or
near the maximum term authorized for categories of defendants.”
This court’s decision in
United States v. Butler
,
Invoking LaBonte and Butler , Martin focuses on the plain text of the Act. Martin’s argument centers on the word “and,” which joins the types of data on which the Commission was to base the conversion ratios it added to § 2D1.1 of the Sentencing Guidelines. According to Martin, the use of “and”—which is normally conjunctive—required the Commission, at a minimum, to utilize both scientific data and law enforcement data. The government, for its part, maintains that “Congress stated [that the conversion] ratio could be based upon law enforcement data or other data the Commission found to be appropriate.” (Emphasis added.) If the government’s disjunctive reading is correct, then Martin cannot prevail because reliance on a single DEA report would be in keeping with the Commission’s discretion to consider whatever sources it found “appropriate.”
We think that the interpretation advanced by Martin is the correct one. His reading of the statute can perhaps be illuminated by the following example: Assume that a state legislature directs a commission that oversees the sale and distribution of certain food and beverage products to promulgate regulations governing the sale of “alcoholic, caffeinated, and other beverages that the commission considers to be addictive.” The most natural reading of such a statute is that the commission must regulate the sale of both alcoholic and caffeinated beverages. The concluding phrase “and other beverages that the commission considers to be addictive” allows the commission to regulate the sale of additional beverages, but does not eliminate the commission’s obligation to regulate at least the two types of products specifically listed by the legislature. That is, the statute establishes two categories of beverages that the commission must regulate and a third that it may, in its discretion, also regulate.
This reading is the most natural one because, as this court recently explained at length,
“dictionary definitions, legal usage guides and case law compel us to start from the premise that
‘and’ usually does not mean ‘or.’”
OfficeMax, Inc. v. United States
,
In light of these interpretive principles, we find the government’s disjunctive reading of the
statute unpеrsuasive. The government inaccurately summarizes the meaning of the statute by
omitting the key word “scientific” and by replacing “and” with “or.” Its interpretation also violates
the grammatical rule known as the “rule of the last antecedent,” a principle that is consistent with
the interpretation of the Act that Martin advocates. Under that rule, “a limiting clause or
phrase”—here, the phrase “[that] the Commission considers appropriate”—“should ordinarily be
read as modifying only the noun or phrase that it immediately follows.”
Barnhart v. Thomas
, 540
U.S. 20, 26 (2003); 2A Singer, Statutes and Statutory Construction § 47.33 at 369 (“Referential and
qualifying words and phrases, where no contrary intention appears, refer solely to the last
antecedent.”);
see also United States v. Kerley
,
The phrase that the limiting clause follows in the Act is “other data.” If we apply the last antecedent rule, we find a statute syntactically analogous to the beverages-commission example set forth above. That is, the Commission has been conferred the discretion to base its conversion ratios not just on scientific and law enforcement data, but also on additional sources that it “considers appropriate.”
The Fourth Circuit in
Commonwealth of Virginia v. Browner
,
The Fourth Circuit, however, refused to adopt that interpretation. Instead, it applied the last- antecedent rule, reasoning that if the rule did not apply and Virginia’s reading was the correct one, “then there would have been no need for Congress to have included the first two categories.” Id. . Similarly, if the last-antecedent rule does not apply in the present case, Congress need not “have included the first two categories” listed in the Act—namely, scientific and law enforcement data.
Finally, the government points to the fact that “Congress has not acted to modify or vacate
the Commission’s action,” something that it was permitted to do within 180 days after the
Commission issued its proposed amendment.
See
28 U.S.C. § 994(p). Congressional silence, the
government urges, demonstrates legislative acquiescence in and implicit approval of the
Commission’s work. This court, however, has expressly refused to rely on legislative silence that
is “contrary to all other textual and contextual evidence of congressional intent.”
Butler
, 207 F.3d
at 851 (quoting
Burns v. United States
,
2. The record does not support Martin’s contention that the Commission failed to rely on both scientific and law enforcement data in formulating the challenged conversion ratio Our conclusion that the statute unambiguously requires the Commission to base the conversion ratios on both scientific and law enforcement data, however, does not end our inquiry. Rather, we must still determine whether Martin has shown that the Commission did not actually rely on the requisite sources in promulgating the 50% conversion ratio.
We begin by addressing the scope of our review of the Commission’s actions. Unlike in
LaBonte
and
Butler
, the primary cases upon which Martin relies, we are not confronting a direct
facial conflict between the substance of the Commission’s promulgated Guidelines commentary and
the sentencing parameters set forth by federal statute.
See LaBonte
,
We have found no case that authorizes a searching judicial inquiry into the internal
procedures by which the Commission implements Guidelines. To the contrary, the few courts to
discuss the matter have suggested that investigation into the Commission’s internal processes and
procedures may well be beyond the scope of judicial review.
See United States v. Leroy
, 984 F.2d
1095, 1098 & n.3 (10th Cir. 1993) (concluding that “[d]iscovery into the Guideline formulation
process would be an intrusion into a quasi-legislative rulemaking function delegated by Congress
solely to the Commission,” and observing that the Guidelines promulgation process “is not
susceptible to discovery”);
United States v. Lopez
,
This court, following the D.C. Circuit’s decision in
Lopez
, issued an unpublished opinion
agreeing with the view that courts of appeals “lack[] authority to review the Sentencing
Commission’s rulemaking process” under the Administrative Procedures Act (APA).
United States
v. Tapert
, No. 92-1628,
We have not previously articulated, at least in our published opinions, limitations on judicial
review as broad as the ones announced in the cited cases.
See Butler
,
In essence, Martin would have us conclude that the Commission’s recognition in the public record that the chosen ratio mirrors the one found in a DEA report necessarily means that the ratio was based exclusively on law enforcement data. But our analysis must focus not on the report, which is not in the record, but rather on the information that the Commission provided when it implemented the congressional directive. The Commission published notice of its proposed revised Guidelines and conversion table in the Federal Register on January 26, 2001, stating that
[t]his table, which provides for a 50 percent conversion ratio for ephedrine, PPA, and pseudoephedrine, was developed using data from the Drug Enforcement Agency, Office of Diversion Control, as published on the web site of the Office of National Drug Control Policy (ONDCP). These data indicate that the actual yield of *10 methamphetamine from ephedrine and pseudoephedrine is “typically in the range of 50 to 75 percent[.]” 66 Fed. Reg. 7962, 7965 (Jan. 26, 2001). Martin also calls our attention to the June 6, 2001, Federal Register, which further describes the promulgation of the new Guidelines amendments as follows:
The Commission held a public hearing on the proposed amendments in Washington, DC on March 19, 2001. After a review of hearing testimony and additional public comment, the Commission promulgated the amendments set forth herein . . . . On May 1, 2001, the Commission submitted these amendments to Congress and specified an effective date of November 1, 2001. 66 Fed. Reg. 30512, 30513. These statements, along with the almost identical language published in the explanatory notes to Amendment 611, make up the sum total of the information that we have about the Commission’s creation of the conversion table. The record before us includes no testimony and no further documentation regarding the Commission’s method of selecting the new 50% conversion ratio. No such evidence is contained in the district court record either, bеcause Martin did not present his argument to that court.
These scant indications, in our view, do not suffice to demonstrate that the Commission failed to base its ratio on both scientific and law enforcement data. Citing nothing more the Commission’s statement that the ratio was “developed using data from the Drug Enforcement Agency,” Martin asks us to infer that the DEA report consists solely of data gathered from law enforcement sources, to the exclusion of all scientific sources. We do not believe that such an inference is justified. A particular document, regardless of its institutional author, might contain scientific data, law enforcement data, neither, or both. DEA reports could contain, for example, both scientific data regarding the controlled laboratory yield ratios for different conversion methods, as well as law enforcement statistics on which conversion methods were most popular among methamphetamine manufacturers. A single report could synthesize the data from various primary sources into a general conclusion more comprehensible to a layperson. Nothing in the language of the enabling statute—which limits the Commission’s otherwise wide discretion, see LaBonte , 520 U.S. at 757—prohibits the Commission from оbtaining both its scientific and law enforcement data from the same source.
Language in another federal statute, 28 U.S.C. § 995(c), suggests that Congress expected the Commission to rely on source material provided by other federal entities. Congress instructed each federal agency, “[u]pon the request of the Commission, . . . to make its services, equipment, personnel, facilities, and information available to the greatest practicable extent to the Commission in the execution of its functions.” Id. (emphasis added). The 2000 Act did not purport to negate this congressional authorization, nor did it impose any requirement that the information utilized by the Commission be raw data, as opposed to data previously collected and analyzed by other governmental bodies.
Furthermore, the presumption of regularity that attaches to the acts of government officials
requires us to resolve in favor of the Commission any doubt as to the Commission’s compliance with
the congressional mandate. As Judge Posner has observed, “[a] presumption of regularity attends
the Commission’s doings, as it does that of other official bodies.”
United States v. Tomasino
, 206
F.3d 739, 742 (7th Cir. 2000);
see also U.S. Postal Serv. v. Gregory
,
Notwithstanding our rejection of Martin’s challenge, we do not read the relevant authorities as holding that, to be successful, all challenges to Guidelines provisions or commentary must be of precisely the same ilk as the ones addressed in LaBonte and Butler— namely, that the substance of the provision directly conflicts with the authorizing statute. We do believe, however, that there is an important difference between the contention that a Guidelines provision is substantively inconsistent with a clear statutory command and the assertion that the Commission has failed to follow the procedural path prescribed by Congress. The decisions in LaBonte and Butler signal that challenges of the former kind will likely succeed when the Commission acts contrary to the unambiguously expressed intent of Congress. On the other hand, challenges of the latter variety are likely to succeed only where (1) Congress has set forth clear procedural requirements for the Commission to follow, and (2) the party advancing the challenge supplies evidence demonstrating that Commission did not comply with those procedures.
In the present case, the first of these two conditions is satisfied because Congress required
the Commission to base the 50% conversion ratio on at least two kinds of data—scientific and law
enforcement. The second condition, as we have explained, has not been met. Taking into account
both the possibility that the DEA report in question contains the required types of data and the
“presumption of regularity [that] attends the Commission’s doings,”
Tomasino
,
otherwise unconstitutional
Martin also argues that the conversion ratio, beyond failing to conform to the statutory
directive, is “arbitrary and capricious” because “DEA testimony before Congress and before federal
courts was significantly different” from the ratio eventually adopted. The familiar “arbitrary and
capricious” standard from § 706 of the Administrative Procedure Act (APA) is used to assess “the
reasonableness of an agency’s actions pursuant to its governing statute.”
Ohio Pub. Interest
Research Group, Inc. v. Whitman
,
This court has not consistently applied the “arbitrary and capricious” standard to challenges
to Guidelines provisions, instead asking “whether the guideline is sufficiently reasonable in light
of congressional directions to the Sentencing Guideline Commission.”
See United States v. Kincaid
,
The thrust of Martin’s argument is that expert testimony in reported federal court opinions
and by DEA personnel before Congress conflicts with the Commission’s choice of 50% as the
*12
appropriate conversion ratio for pseudoephedrine. But the sources that Martin cites reveal that,
although yield rates are at times as low as 15%, they can also be as high as 85%. These
sources—among them the so-called “Iowa Study” and expert testimony by a DEA chemist in
United
States v. Eschman
,
A yield rate of 50%, moreover, is not just a reasonable middle ground between two еxtremes,
but is also borne out by cases predating the Act—cases in which this court endorsed the 50% rate
as a valid approximation.
See, e.g.
,
United States v. Thompson
,
To the extent that we construe Martin’s “arbitrary and capricious” argument as a
constitutional challenge, like the government does, Martin faces an uphill battle. As an initial
matter, neither this circuit nor any other has decided whether amendments to the Sentencing
Guidelines are even subject to challenge as violating the substantive component of the Due Process
Clause.
See United States v. Fortney
,
As discussed above, if we apply to Martin’s contention the same standard used to evaluate
substantive-due-process challenges to congressional action, then Martin has failed to show that the
Commission “was acting arbitrarily or irrationally” in choosing the 50% ratio.
Pickett
, 941 F.2d at
418. Likewise, if Martin is challenging Congress’s directive to the Commission for formulating the
conversion ratios, we believe that such a directive “was sufficiently rational to meet the demands
of substantive due process.”
United States v. Pruitt
,
Because he cannot demonstrate that the Commission acted “arbitrarily or irrationally” in
adopting the 50% yield rate, Martin cannot satisfy the more stringent standard of review that would
apply if the Commission is treated as if it were an executive official accused of a substantive-due-
process violation.
See Fortney
,
D. The district court did not commit clear error in determining Martin’s criminal
history category
Martin also challenges the district court’s calculation of his criminal history category,
arguing that the four car thefts he committed in November and December of 2000 are “related”
offenses for which only one criminal history point should have been assessed.
See
U.S. Sentencing
Guidelines Manual § 4A1.2(a)(2) (establishing that prior sentences imposed in related cases are to
be treated as one sentence for purposes of calculating a defendant’s criminal history category). As
explained above, the district court on remand is required to “consult [the] Guidelines and take them
into account when sentencing” even after
Booker
,
The Application Notes to § 4A1.2(a)(2) define related offenses as ones “that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.” U.S. Sentencing Guidelines Manual § 4A1.2, Application Note 3. Martin concedes that the thefts occurred on different occasions and that the state trial court did not consolidate the convictions. He insists, however, that the thefts “were part of a single common scheme or plan” because they “were accomplished with the same modus operandi , specifically, that a fake drivers license was used to secure permission for a test drive.”
Martin has the burden of proving that the four thefts at issue were part of a “single common
scheme or plan,” a burden that he could satisfy by establishing that “his crimes were jointly planned
or that the commission of one entailed the other.”
United States v. Irons
,
Similarly, Martin introduced no evidence that he planned the final three car thefts at the time
of the first theft, pointing only to the fact that all four crimes occurred within 23 days of one another.
This court has observed, however, that “offenses are not necessarily related merely because they
were committed within a short period of time.”
Horn
,
Martin’s argument that the common modus operandi rendered the crimes part of a single
scheme or plan is likewise unavailing. This court has held that “the simple sharing of a modus
operandi cannot alone convert [separate offenses] into one offense by virtue of their being a single
common scheme or plan.”
Horn
,
The government persuasively argues that
Irons
,
Carter
, and
Horn
foreclose Martin’s
argument. Those cases, the government contends, stand for the proposition that “the commission
of a series of individual, similar crimes does not mean that the resulting multiple convictions are
combined for criminal history purposes.” We agree. As stated above, a defendant seeking to show
that offenses are related must prove that the crimes were jointly planned or that commission of one
crime entailed committing the other crime or crimes.
See Irons
,
E. Under Booker and its progeny, Martin’s sentence must be vacated and his case
remanded for resentencing
Martin argues, and the government concedes, that this court’s post-
Booker
cases require us
to vacate his sentence and remand the case to the district court for resentencing.
See United States
v. Barnett
, 398 F.3d 516, 529 (6th Cir. 2005) (holding that sentencing under the mandatory
Guidelines regime creates a presumption of prejudice that the government must rebut with “clear
and specific evidence that the district court would not have . . . sentenced the defendant to a lower
sentence” if it had treated the Guidelines as advisory );
United States v. Oliver
,
III. CONCLUSION
For all of the reasons set forth above, we hold that (1) Martin has not demonstrated that the Sentencing Commission failed to comply with the unambiguous statutory language when it promulgated the 50% conversion ratio for pseudoephedrine now found at U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.10, and (2) the ratio is not “arbitrary and capricious” or otherwise unconstitutional. We also reject Martin’s challenge to the сalculation of his criminal history category, but agree that the district court committed a Booker error in sentencing Martin under a mandatory Guidelines regime. Accordingly, we VACATE Martin’s sentence and REMAND the case to the district court for resentencing consistent with Booker .
____________________
CONCURRENCE
____________________
BOYCE F. MARTIN, JR., Circuit Judge, concurring. I join Judge Gilman’s persuasively
reasoned opinion. I write separately with regard to Martin’s sentencing claim as to whether his car
theft offenses were related for the purposes of the Guidelines. On this issue, I concur in the Court’s
opinion, because our precedent compels this conclusion. I still, however, continue to disagree with
that precedent. On this point, both pursuant to the Guidelines and for purposes of the Armed Career
Criminal Act, I have already beaten the dead horse. See
United States v. Powers
, 129 Fed. Appx.
942, 945 n.1 (6th Cir. 2005) (unpublished) (“Writing only for myself, I continue to adhere to my
belief that the ‘on occasions different from one another’ language [in the Armed Career Criminal
Act] was not meant to encompass the conduct in this case,” and that if a defendant’s convictions
were a part of one continuous crime spree they should be treated as one predicate offense.);
United
States v. Brady
,
First, though, with regard to my continued disagreement with this Court’s precedent, I
believe that we have reached the point where there are few, if any, circumstances in which we would
find that a defendant’s previous crimes are related for purposes of the Guidelines or the Armed
Career Criminal Act. Under the Armed Career Criminal Act, our case law concludes that two
offenses are separate predicate offenses if “it is possible to identify an endpoint between the two
offenses.”
United States v. Carnes
,
I do agree that “offenses are not necessarily related merely because they were committed
within a short period of time,”
United States v. Horn
,
In fact, at oral argument counsel for the United States was asked if he could explain to the Court what types of offenses or common planning the government would concede to be related for the purposes of sentencing. Counsel had no idea. Instead, counsel spoke of such sophisticated planning that it believes is required under our case law that, in my opinion, only two types of criminals would be able to benefit from it: (1) perhaps a white collar criminal who keeps detailed records of the entire plan or (2) the James Bond movie villain, who prior to carrying out some grand scheme of world domination/annihilation, feels compelled to explain to anyone who will listen and in great detail (with intermittent villainous guffaws), each of the steps necessary to achieve his plan. [1]
It seems to me that we apply the antithesis of common sense in these cases. The defendant
was addicted to drugs. In order to feed his habit, he stole four cars in the exact same way over a
short three week period. Any reasonable observer would consider, under any dictionary definition,
these crimes to be related. Instead of applying logic and common sense, our Court’s precedent
seems to require us to look for reasons why these crimes are not related. We end up coming up with
reasons like these: Martin drove the cars to different buyers and the thefts took place in two different
states. Holmes did write that “[t]he life of the law has not been logic: it has been experience.” The
Common Law 1 (1881);
see also United States v. O’Neill
, — F.3d —,
My point, now, however, does have renewed relevance. In
United States v. Booker
, 543 U.S.
220 (2005), of course, the Supreme Court invalidated the mandatory use of the Federal Sentencing
Guidelines and the remedial opinion declared them “effectively advisory.” We have stated that
“[o]nce the appropriate advisory Guideline range is calculated, the district court throws this
ingredient into the section 3553(a) mix.”
United States v. McBride
,
Now that section 3553(a) is the focal point, and the Guidelines sentence is merely advisory, the fact that the district court calculated Martin’s criminal history score to be seven based on its separate counting of his four car thefts, is “not the end of the sentencing inquiry; rather, it is just the 1 See also Austin Powers: International Man of Mystery (New Line Cinema 1997). DR. EVIL: SCOTT EVIL: Why are you feeding him? Why don’t you just kill him? DR. EVIL: SCOTT EVIL: But what if he escapes? Why don’t you just shoot him? What are you waiting for? DR. EVIL: Scott, I want you to meet Daddy’s nemesis, Austin Powers.
In due time.
I have a better idea. I’m going to put him in an easily-escapable situation involving an
overly-elaborate and exotic death.
SCOTT EVIL: Why don’t you just shoot him now? Here, I’ll get a gun. We’ll just shoot him. Bang! Dead. Done.
DR. EVIL:
One more peep out of you and you’re grounded. Let’s begin.
Prior to this exchange and then again following it, Dr. Evil describes in great detail the separate crimes
necessary to achieve his plan for world domination. Thus, if our Government ever does find Dr. Evil (or chooses to
prosecute him despite his recent decision to be “less evil,”
see
Austin Powers in Goldmember (New Line Cinema 2002)),
he will be one of the few, if any, criminal defendants, able to argue, consistent with this Circuit’s precedent, that all of
his various crimes were “related” for purposes of the Guidelines.
*17
beginning.”
Id.
;
see also United States v. Mickelson
,
Appellate courts then review sentences for reasonableness — reasonableness in light of the factors set forth in section 3553(a), but also in light of whether the district court complied with its own textual responsibility to impose “a sentence sufficient, but not greater than necessary to comply” with these purposes. Id. In appropriate cases, and I refrain from opining as to whether Martin’s is one, a district court may conclude that the criminal history category overstates the severity of the defendant’s criminal history or that a lower sentence would still comply with and serve the mandates of section 3553(a). That is, a district court may look beneath the specific criminal history score and determine whether Martin’s four car thefts merit the increased sentence that the Guidelines suggest. In such circumstances, there is nothing that would preclude a Guidelines sentence from being declared unreasonable. If the district court determines that section 3553(a) does not permit it to impose the Guideline-recommended sentence based on an over-inflated significance attributed to Martin’s criminal history, this Court will later review that decision for reasonableness.
With these observations, I concur in the Court’s opinion.