*1 under these insur- premium payments speculative.
ance contracts is the district no to overturn see reason
We increased
court’s determination insufficiently certain were
premiums damages
justify offsetting here.
IV. reasons, judgment foregoing
For court is
of the district
AFFIRMED. America,
UNITED STATES
Plaintiff-Appellee, MUNN, Nathaniel
Raeford
Defendant-Appellant.
No. 09-7525. Appeals,
United States Court
Fourth Circuit. Dec. 2009.
Argued: Feb.
Decided: *2 Blau, ARGUED: Daniel Micah being Robert pursued here is that Munn is eligi- Hale, Associates, H. Jr. & Attorneys at ble for a sentence reduction under Law, PC, Carolina, Raleigh, North for Ap because pellant. Margaret Hayes, Anne Office of having concluded that career of- court— Attorney, the United Raleigh, States fender overrepresented status Munn’s Carolina, Appellee. North for ON criminal history him according —sentenced Hale, Jr., BRIEF: Robert H. Robert H. Table, to the Drug Quantity which Hale, Associates, Law, Attorneys Jr. & at Amendment 706 altered. explained As PC, Carolina, Raleigh, North Appel below, we conclude that Munn eligible lant. George Holding, E.B. United States for a sentence reduction and therefore va- Attorney, May-Parker, Jennifer P. Assis cate and remand.
tant Attorney, United States Office of the Attorney, Raleigh, North I. Carolina, for Appellee. A. KING, DUNCAN, DAVIS,
Before and Circuit Judges. In January Munn charged was the Eastern District Carolina, of North Vacated and by published remanded way information, single with a count of opinion. Judge KING majority wrote the distribution fifty grams or more of opinion, in which Judge joined. DAVIS crack, in contravention U.S.C. Judge DUNCAN wrote a dissenting 841(a)(1). Munn right waived his to be opinion. pleaded guilty indicted and to the informa- tion, pursuant to a plea OPINION written agreement, January 22, on KING, Judge: Circuit 21, 2001, On March following Raeford Nathaniel Munn Munn’s pursues this guilty plea, probation appeal from prepared the district officer court’s denial of and his motion for a submitted Investigation reduced Presentence sentence under (the “PSR”) Report 18 U.S.C. to the sentencing Munn’s motion predicated court. on On the basis of Munn’s offense of conviction, drug quantity Drug revised the attributable (155.1 Quantity 2D1.1(c) crack), Table of to him grams section re his manage- ducing the offense, base offense rial role in level prior and his crimi- (“crack”) cocaine history, base nal offenses. the PSR adjust- calculated his court denied the motion ground on the ed offense level at 36 and his criminal that, because Munn had designated been category as IV.1 The PSR recom- as a career mended, however, under Guidelines that Munn be deemed a 4B1.1, Amendment 706 did not career offender under Guidelines section lower (the his Provision”) 4B1.1 “Career Offender he was therefore for a sentence and that his offense level and criminal reduction. The sole appellate contention history category be enhanced accordingly.2 Thus, 1. Both the PSR and the ap our references to the Guidelines are to edition, plied the 2000 edition of the Guidelines in unless indicated otherwise. calculating advisory guideline range. Munn’s Provision, 2. Pursuant to the Career Offender a defendant is a career offender if sentencing hearing, At Munn’s conduct- pro- of conviction offense Because 13, 2001, the court first as- ed on June maximum sentence statutory vided rejected Munn’s contention sessed see U.S.C. imprisonment, life *3 a career offend- qualify that he did not as 841(b)(1)(A), cal- the PSR recommended adopted the PSR’s er.- The court thus as 37 and his offense level culating his (34) and crimi- offense level recommended see USSG VI, category as history criminal (VI), by history category prescribed as nal re- a three-level applying § 4B1.1. After Provision. The court the Career Offender responsibility, acceptance of for duction determined, however, Overrepre- that an a total offense level recommended the PSR sought in Munn’s Departure, as sentation to 327 range of 262 34 and a motion, was warranted under Guidelines months. history “his criminal section 4A1.3 because J.A. 23.4 category overstated.” hearing, Prior to Munn’s grant the Govern- court also elected depar- moved for a downward party each request for a substantial assistance ment’s the Government ture. On June departure, pursuant requesting that the sentenc- filed a motion At the conclusion of the 5K1.1. to Guidelines section ing pursuant it explained that would hearing, 5K1.1, depart from virtue “depart [of] down months basis of by the PSR on the prescribed history criminal [Munn’s] fact prose- in the assistance Munn’s substantial the seriousness of his offense” overstates later, Munn days Two cution of others. an additional 51 months “depart and down perti- to the PSR. Most response his filed 5K1 motion honoring the Government’s here, objected to his classifica- nent Munn ..., result in a sentence of 151 which will offender, contending that a career tion as months.” Id at 23-24. Offering no fur- not a crime prior convictions was one of his of either explanation ther for the extent of the purposes Career of violence Munn departure, the court then sentenced alternative, In Provision. Offender with five imprisonment, to 151 months of departure a downward moved for Munn release. Munn did years supervised (an section 4A1.3 “Over- under Guidelines or his sen- appeal either his conviction ca- Departure”) because his representation tence. significantly overre- offender status
reer B. likelihood of recidivism.3 presented his speci- 1, 2007, party’s May neither motion Com- Importantly, On 706 to promulgated mission departure sought. of the fied the extent Overrepresen- years 3. Section 4A1.3 authorizes eighteen old at was at least [he] Departure, providing that tation the instant offense committed [he] the time may conviction, (2) “consider a downward of con- the instant offense “concludes guidelines” if the court from the felony that is either a crime of viction is a category offense, that a defendant's a controlled substance violence or significantly over-represents the seriousness (3)[he] prior felony two has at least history or the likeli- a defendant's criminal or either a crime of violence convictions of commit further that the defendant will hood substance offense. a controlled PSR, crimes.” According Munn 4B1.1. USSG qualified a career offender due to his "J.A__" refer to deadly weapon herein to with a 4. Citations conviction for assault Appendix filed taking of the Joint indecent contents conviction for and his 1994 parties appeal. in this with a minor. liberties agreed That Sentencing Guidelines. Amend The district with the Gov- ment, addressing drug ernment, crack-related of concluding that Munn was ineli- fenses, by two levels the gible reduced base reduced sentence under assigned to each threshold offense level because Amendment did Quan quantity Drug crack listed in the not affect Munn’s status as a career of- (the Guidelines”). tity “Crack Table fender therefore not lower did his 2D1.1(c) (2007); Supp. USSG applicable guideline range. Because Munn (2007).5 Thereafter, C, App. Amend. 706 was deemed for a sentence re- made Amendment the Commission 706 duction, the court that it concluded lacked *4 retroactive, 3, March effective 2008. See authority and, to reduce his sentence (2008). C, Supp. App. USSG Amend. 713 10, 2009, 3582(c)(2) § August on denied his timely motion. Munn thereafter filed a 24, 2009, July Accordingly, on Munn jurisdic- notice of appeal, possess we post-sentencing filed a motion for a re- pursuant § tion to 28 U.S.C. 1291. duced pursuant sentence 18 U.S.C. 3582(c)(2).6 motion, § In his Munn ex-
plained that his 151-month sentence was II. predicated on offense of in- conviction crack, review for volving grams of We abuse discretion a dis 155.1 which corre- trict court’s decision on whether to reduce sponded to base offense level of 34 under 3582(c)(2). § a sentence then-applicable under 18 U.S.C. Crack Guidelines. See 201.1(c)(3). Goines, 469, See v. § United States 357 F.3d Under Amendment (4th Cir.2004). however, 706, novo, We review de corresponding Munn’s base however, a court’s on scope offense level was reduced to conclusion 32. See id. 2D1.1(c)(4) 3582(c)(2). (2007). Munn, legal authority § § of its According to 3582(c)(2) § See v. Dunphy, authorized the district court — 247, Cir.), denied, to reduce his cert. sentence because he was U.S. —, “sentenced to a 129 S.Ct. 173 L.Ed.2d imprisonment term of (2009). on a sentencing range based that has sub-
sequently been lowered.” See 18 U.S.C. 3582(c)(2). § opposed Government III. 3582(c)(2)motion, § however,
Munn’s
con-
tending that
predicated
his sentence was
appeal
The sole issue before us on
is
on the Career Offender Provision
properly
rather whether the district court
con-
Guidelines,
than the Crack
thereby render-
authority
cluded
it lacked
under 18
ing
3582(c)(2)
him ineligible
§
for a sentence reduction. U.S.C.
to reduce Munn’s sen-
5. Prior to Amendment
there was a 100-
a defendant who has been sentenced to a
disparity
powder
to—1
between crack and
co
imprisonment
term of
based on a
offenses,
("cocaine”)
resulting
caine
in sen
subsequently
that has
been lowered
tences for crack offenses three to six times
...,
Sentencing
upon
Commission
motion
longer
involving
than for cocaine offenses
...,
may
of the defendant
the court
reduce
equal
drugs.
Kimbrough
amounts of
imprisonment,
considering
the term of
after
States,
558, 566,
United
552 U.S.
128 S.Ct.
3553(a)]
the factors set forth in [18 U.S.C.
(2007).
reduction in such with United Munn’s total offense level—without the ca (2d McGee, States v. 553 F.3d designation reer offender have —-would Cir.2009) curiam) (per (determining that level, been 33. That offense coupled with designation career offender does not bar (Munn’s history category criminal of IV sentence reduction if defendant’s ultimate history category before he was Guidelines), sentence is based on Crack offender), designated a career would have Moore, and United States v. resulted in a range of 188 to 235 (11th Cir.2008) 1323, 1329-30 (same). months. See Pt. A (Sentencing id. Ch. Table). Munn, According to the sentenc *6 court, ing being aware of Notwithstanding the established rule range, depart chose to 60 months from the that a defendant whose sentence was (262 bottom of the career offender entirely based on the Career Offender months) to 327 finding after that the ca Provision is for an Amendment reer designation overrepresented offender reduction, 706 sentence Munn contends history. seriousness of Munn’s criminal that the district court in denying erred his (202 months) The resulting sentence fit 3582(c)(2) Although motion. Munn ac- squarely within what otherwise would have knowledges that the sentencing court ini- been applicable guideline range Munn’s tially designated him a career offender and (188 months). to 235 The court then enhanced his base offense level and crimi- granted the Government’s substantial as nal history category accordingly, he main- motion, departure sistance imposing a sen tains that the Career Offender Provision tence of 151 months. did not determine his ultimate sentence. Munn, According words, ap- the court instead In other Munn that contends plied the granting Crack Guidelines after departed court to both the low- an Overrepresentation Departure pursu- er offense level and the lower criminal — ant to Guidelines section category 4A1.3—because applied would have the career offender classification overre- had the court him designated not as a presented history. his criminal Munn in- career offender.8 That offense level was level, Sentencing 8. The 2000 depart edition of the Guide to a lower offense a lower crimi type lines limited neither history category, nor the extent of nal or both. See United Adkins, available under section 4A1.3. aAs States v. 937 F.2d 952 Cir. result, 1991); a finding after Greger, see also United States v. (8th Cir.2003). overrepresent the Career Offender Provision F.3d At least one that, ed a history, defendant’s criminal was free to court has held due to Guidelines, referenced —and se- explicitly court had by the Crack prescribed a sentence within—the Crack by revised lected subsequently were that his result, contends that would have As a Munn guideline range designation. based on career offender sentence was absent his Commis- amended that the sentenc- Accordingly, later at 227. Id. for a sion, eligible him thereby rendering step took the intermediate ing reduced sentence. as a career offender did classifying McGee 3582(c)(2), not bar a reduction under support deci- contention finds pos- preclude “do[ ] the Guidelines and Eleventh Cir- from the Second sions was, sibility that a defendant who even McGee, the v. cuits. In United States departure, virtue of a sentenced ‘based the is- recently addressed Circuit Second eligible guidelines on’ the crack would be resolve, is, “the must now sue we result, a reduction.” Id. at 228. As a defendant of whether question narrow authorized the district court designated a ..., at who departure so McGee’ssentence. Id. granted a to reduce career offender but on ultimately sentenced based that he was Moore, Moreover, in eligible for a guidelines, the crack that, Eleventh Circuit observed when pursuant to [Amendment reduced sentence grants Overrepresenta- district Cir.2009) (2d 225, 225-26 553 F.3d 706].” Departure, “a reduction sentence is curiam). There, sentencing court (per discretionary au- within the district court’s offender, a career designated had McGee 3582(c)(2).” thority under on the ultimately his sentence but based (11th Cir.2008). The court rec- Guidelines, that the career finding Crack that, long so ognized explained overrepresented classification that the [sentenc- there is some “indication later, history. Years McGee’s ing] defendant’s] court based [the motion for a filed a McGee have that would on sentence, on Amend- premised reduced desig- the career offender applied absent *7 denied his The district court ment 706. nation,” concluding for that or some “basis however, ineligible him motion, deeming of- applicable] of base [the the reduction his status as a career on the basis of sentencing range level lowered the fense offender. [sentencing] court in upon by the relied with the disagreed The Second Circuit sentence,” determining his the defendant concluding that McGee district under for a reduced sentence eligible is a reduced sentence eligible for § Id. 3582(c)(2). McGee, F.3d at 230. § reasoned The Second Circuit 3582(c)(2) Policy accompanying § and the and Elev- Notwithstanding the Second only that a defendant’s require
Statement
issue, the
resolution of this
enth Circuits’
subsequently
on” a
sentence be “based
contends that
the district
Government
Id. at 228.
guideline range.
amended
3582(c)(2)
§
denied Munn’s
McGee,
properly
court
sentencing
the
respect
With
amendment,
prior
Overrep-
to the 2003
limiting
was sentenced
however,
the extent of an
amendment
plainly
sentencing
career offenders
for
court was
resentation
the
sentencing
history category, a
one criminal
vertically to a lower of-
to move
authorized
vertically by
longer
of-
may no
move
court
granting the
fense level in
Grier, 585
United States v.
fense level. See
Departure.
Cir.2009).
(3d
Because Munn
F.3d
motion, maintaining
ineligible
“applicable guideline range”
that Munn is
for purposes
§
his career
Policy
for a reduced sentence due to
and the
Statement.
According
emphasizes
to the The Government
designation.
several
Government,
“applicable guideline provisions
Chapter
Five refer to the
range”
purposes
“applicable
is the
defendant’s
guideline range.”
(here,
See,
5B1.1(a)(1)
pre-departure range
e.g.,
the
id.
(authorizing pro
range prescribed by the
applicable guideline range
Career Offender bation
“the
Provision),
Table”);
post-departure
rather than the
Zone A of the
id.
5G1.1(a) (“Where
range,
granted
statutorily
reached after the court
the
the
author
Overrepresentation Departure. Because
ized maximum sentence
than
is less
the
no impact
Amendment 706 had
on the minimum of the applicable guideline range,
guideline range,
statutorily
career offender
the Gov-
authorized maximum sen
sentence.”).
ernment maintains that Munn is
tence shall be the
for a sentence reduction.
The Government thus
maintains
actually
ap
calculates the
contention,
support
appellate
To
its
plicable guideline range
it applies
when
primarily
reading
on its
Government relies
Part A Chapter
during
Five
penul
of the instructions in Guidelines section
timate step.
1B1.1,
specify how a sentencing
apply
court is to
the Guidelines in calculat
In
step
the ultimate
of applying the
(the
ing
sentencing range
“Application Guidelines,
Application
Instructions di-
Instructions”). According
Applica
assess,
alia,
rect a
court to
inter
Instructions,
Chapter
whether Part K of
Five warrants
begin
must
calculation
any departure
its
guideline range.
from the
the base offense level under Guidelines See USSG
The
1B1.1®.
adjust
2 and then
that offense
currently
“departure”
*8
(emphasis
The Government pos-
“[d]etermine[s] the
in Part
Application
its that
the
Instructions and
Chapter
A of
corresponds
Five that
to the
accompanying
the
“departure”
definition of
offense level and criminal
catego
bolster its contention that a sentencing
ry” and
from
B
“[d]etermine[s]
Parts
court
a
“applicable
determines
defendant’s
through
G of
Five the sentencing
guideline range”
granting
before
an Over-
requirements
options”
that partic
for
representation Departure.
ular guideline range.
§ 1B1.1(g)
(h). It is at
subpart
step
the first
of this
The Government thus contends that the
Instructions,
when the sentencing
according
Application
together,
taken
Government,
the
arrives at a defendant’s
ineligible
demonstrate that Munn is
for a
(2003).
In
the
re-
Commission
Amend. 651
When Munn was sen-
vised the Guidelines to include its definition
tenced in
the Guidelines did not define
C,
"departure.”
of
Supp.
App.
"departure.”
See USSG
a
3582(c)(2).
request,
denied Tolliver’s
Ac- district court
under
reduced
however,
ineligible for a
Government,
ruling that he was
the
cording to the
the amended
sentence reduction because
“applicable
determined
court
did not alter his status as
Crack Guidelines
the Career
range”
applying
guideline
after
offender.
granting
a career
Provision—and
Offender
before
The
Departure.
Overrepresentation
the
affirmed,
Eighth
the
Circuit
appeal,
On
departures
that all
asserts
Government
court lacked
concluding that
the district
range,
guideline
the
are outside
Tolliver’s sen-
any authority to reduce
Depar-
Overrepresentation
rendering the
Tolliver,
duced sentence
Government,
course,
parently
critical absence—also
aware of this
relies exten-
10.
*9
Eighth
in Tol-
sively
the
Circuit’s decision
that the defendant was
on
concluded
however,
Notably,
that court—in con-
explicitly
liver.
based on
his sentence "was
because
departures
departures are
cluding that all
stipulation
parties, and not on
between the
range
guideline
applicable
from the
subsequently
range
—at-
that had
presented by
tempted to resolve an issue not
Tolliver,
C. inal it that follows the court yet applicable has to arrive at the carefully mat Having assessed this guideline range when it step reaches this ter, agree we are constrained with the calculating history the criminal catego is, That Second and Eleventh Circuits. ry, point that the Government concedes. designation defendant’s career (“[The Appellee See Br. of Application 3582(c)(2) not bar a sentence reduc does provide[] guideline Instructions] that a (1) tion on Amendment 706 if the based range is determined in A Chapter Part granted Overrepresen an sentencing court Five ... determining after the criminal Departure tation from career offender history category and accounting for other guideline range, and the court relied on Four.”). adjustments Chapter in Accord in calculating Crack Guidelines ingly, only applying after Parts A and B of departure. extent of the Because those Chapter Four can a sentencing court cal instance, conditions are satisfied culate applicable guideline the defendant’s district court was authorized under range Chapter under Five. See USSG to reduce Munn’s sentence. § 1B1.1(g) (requiring sentencing court to “[determine the Part A of Chapter corresponds Five that contrary As an initial matter —and history offense level and criminal category the Government’s contention—the Sen- above”). determined tencing compel Guidelines do not the con- note, 4A1.3, Of Guidelines section clusion that a court must deter- authorizes the Overrepresentation Depar- applicable mine a defendant’s ture, is contained in A Chapter Part granting Overrepresenta- an before Four. Notwithstanding placement Rather, Departure. tion the Application Guidelines, within the the Government that, Instructions indicate when the sen- would have us conclude the Sentenc- tencing granted request ing Commission intended for a Overrepresentation Departure, it de- apply section 4A1.3 after parted to the applicable guideline range determining the defendant’s purposes Policy and the Chapter Five. Be- Statement. placement, cause of section 4A1.3’s howev- importantly, Most In er, the likely Commission most intended structions direct a sentencing court grant for the court to an Overrepresenta- any Overrepresentation make Departure Departure tion determining ap- before before calculating applicable guideline plicable guideline range, part of its cal- Thus, range. after the sentencing court culation of the history category. has Chapters Two and Three of Indeed, it would make little sense for a Guidelines, it must “[determine the sentencing court to apply Chapter all of defendant’s criminal category as Four, except for an ap- assessment of the specified Chapter Part A of Four” and plicability of an Depar- from B Chapter “[determine Part Four ture, only to return to that issue after any other applicable adjustments.” USSG determining the defendant’s 1B1.1(f). Because the court cannot cal guideline range from Five. At culate the range with point, if it an Overrepresenta- found out first warranted, the defendant’s crim- *10 in McGee ruling appears Circuit’s to be little more than dicta. (2003). Hence, the Govern- “the Amend. have to recalculate
would
Five that
Chapter
explain
in Part A of
ment seeks to
Munn’s 2001 sen-
crimi
to the offense level and
corresponds
tencing by relying on a definition inserted
1B1.1(g).
category.” USSG
nal
years
than
into the Guidelines more
two
Rather,
plain
Instructions’
Application
the
manual
later. As the Guidelines
under
sentencing court
the
terms indicate
did not
which Munn was sentenced
define
Four, including
Chapter
all of
apply
should
651’s definition
“departure,”
Amendment
Overrepresentation Departure
any
no assistance to a de-
of that
term offers
4A1.3, to calculate the defendant’s
original
of Munn’s
sentenc-
construction
result,
As a
the
history category.
ing.12
Departure, under the
Overrepresentation
Moreover,
apply
because we must
the
to,
Instructions,
departure
is a
Application
edition in effect when Munn
from,
appli
the
to a
opposed
as
sentenced,
1B1.11(a),
was
see USSG
the
guideline range.11
cable
rely,
is not entitled to
to
Government
detriment,
on the after-the-fact
“departure,”
definition of
unless one of two
understandably
em-
The Government
(1)
Sentencing
conditions is satisfied:
the
current definition
the Guidelines’
phasizes
designated
Commission
Amendment 651
suggests that an
“departure,”
of a
which
application;
for retroactive
or
Amend-
depar-
is a
Overrepresentation
a “clarifying”
opposed
ment 651 was
applicable guideline range.
the
ture
—as
from
1(E) (2008).
to
“substantive” —amendment.
See
§ 1B1.1 cmt. n.
USSG
See
United,
Capers,
States v.
61 F.3d
definition, however,
only
added to
This
(4th Cir.1995).13
Because the Com-
part
of Amend-
the Guidelines
as
C,
Supp.
App.
designate
mission did not
ment 651. See USSG
er,
place
explain
did not
failed to
how it found a 2003
11. The
Commission
Chapter
Overrepresentation Departure
determining
the
how
definition useful
Tolliver
Chap-
Part K of that
Five of the Guidelines.
years
had been sentenced
earlier.
ter,
"Departures,”
entitled
authorizes a sen-
tencing
impose
a sentence outside
court
clarifying
"merely
13.A
amendment
clarifies
in certain cir-
guidelines
what the Commission deems
See,
(autho-
e.g.,
cumstances.
USSG 5K1.1
meant,” changing "nothing
already
have
con-
rizing departure
provides
when defendant
guidelines.”
cerning
legal
effect of
K, however,
assistance).
substantial
Part
(internal
Capers,
quotation
for retroactive
on whether it is a
at 1110.
depends
in
matter
ture. See 61 F.3d
“substantive,”
to a
“clarifying,”
opposed
as
to deem Amendment
Finally, we were
And,
Judge
as our
Wilkins
amendment.
relevant,
would be ren
651
the Guidelines
amendment
that conflicts
explained, an
ambiguous
point,
Ap
on this
as the
dered
a substantive
precedent
circuit
is
with
plication Instructions
indicate that an
amendment,
designed merely
if it “is
even
to be
Overrepresentation Departure
original intent of the Com-
to elucidate the
calculating
made before
Goines,
v.
357
mission.” United States
range,
commentary
while the
to
Cir.2004).
(4th
469,
F.3d
474
through
usage
its loose
those instructions —
Sentencing
Commission
When
phrase
“applicable
in
2003 and
adopted Amendment
suggests
otherwise.
range” arguably
—
thereby
Overrepresentation
De-
defined
in that situation
The better course
would
did more than
parture,
the Commission
specific,
be to adhere to
well-defined
clarify the
It effected a
simply
Guidelines:
of the
chronology
Application Instructions
change in the law of this and
significant
sentencing
in
when
every
circuit.
Prior
to
nearly
other
applicable guideline range.
calculates the
651,
(including
several circuits
States,
36,
See Stinson v. United
508 U.S.
ours)
had concluded that a
(1993)
38,
1913,
113 S.Ct.
Commission” and strates, we circuit, are left with thereby rendering law in this text, specifies plain Instructions’ portion of the amendment substantive. Goines, applies all of Chap- at 474. that a We are there- fore, including precedent Capers, under our ter Four — 4A1.3—before give appeal calculating applicable guide- entitled to effect in this a defendant’s *12 Therefore, The district court therefore erred when it when a court range. line Departure, authority that it grants Overrepresentation concluded lacked to con the defendant’s sider the merits of Munn’s motion for a on his career predicated circumstances, is not In reduced sentence. such Accordingly, an Amendment designation. judgment we vacate the and remand so where 706 sentence reduction is not barred the court can determine whether to following an Over- Goines, award such relief. See 357 F.3d at the de- representation Departure, based (“[Section 3582(c)(2)] subject ultimate sentence on the Crack fendant’s court.”). of the discretion district only rule not flows from Guidelines. This Instructions, it the text of the IV. objective promotes specific also foregoing, Pursuant to the we vacate the provide 706: To relief to an judgment of the district court and remand disadvantaged by the offender who was proceedings for such other and further sentencing dis- Crack Guidelines’ 100-to-l may appropriate. be parity. AND VACATED REMANDED
Here, strong there is a indication court relied on Crack DUNCAN, Judge, dissenting: Circuit final calculating Guidelines in Munn’s sen- I tence, respectfully must dissent from the ma Overrepresenta- for the 60-month that, jority’s holding Contrary in a sentence this case. Departure resulted conclusions, § prior to the section 5K1.1 substantial assis- its 18 U.S.C. does squarely fell within departure, tance not authorize sentence reduction here otherwise-applicable Crack Guide- because Amendment 706 to the United range. explic- line That the court made no Sentencing States Guidelines “does not it reference to the Crack Guidelines does lowering have the effect of the defendant’s compel us to conclude that it did not applicable guideline range.” U.S. Sentenc rely on those 1B1.10(a)(2)(B) Manual ing Guidelines Munn. Such a connection need not be ex- Appellant [hereinafter “USSG”].* articulated, plicitly particularly situa- applicable guideline range Raeford Munn’s this, only logical tions such as where the months would not have of 262-327 been explanation for the extent of the court’s by Amendment 706 his lowered because indeed, — total offense level of 34 was calculated only explanation, as the Government 2D1.1(c), from independently offers no alternative —is that the by Amendment only changed was correlated to Crack Guidelines. C, Supp. App. amend. 706 See USSG (2007). though Even the district court Munn Because was thus burdened downwardly departed from that un ratio that Amendment 706 the severe 5K1.1, correct, §§ 4A1.3 and and even eligible pursue a der USSG sought to he is 3582(c)(2). assuming that the court considered section reduction under * 3582(c)(2), imprisonment fendant’s term of is not consis- Under 18 U.S.C. the district may reduce a sentence based on policy statement and therefore tent with this Amendment 706 "if such a reduction is is not authorized under 18 U.S.C. applicable policy consistent with statements does not have the [Amendment 706] issued Commission.” lowering the defendant's effect of applicable policy U.S.C. 1B1.10(a)(2). guideline range.” USSG provides: in the de- statement "A reduction 2D1.1(c) probation, calculating departure, options ments and related when conditions, imprisonment, supervision still Munn’s fines, from which the court de 262-327 months and restitution. *13 been parted not have lowered would (i)Refer H and K of Chapter to Parts I must 706. therefore re Five, Specific Offender Characteristics spectfully dissent. Departures, any policy and and to other a different conclu- majority
The reaches commentary guide- in the statements or the reasoning sion district court in might lines warrant consideration ap- from Munn’s departed could have not imposing sentence. range of months plicable guideline 262-327 (2000). § 1B1.1 Because in- USSG these precedes Chapter § 4A1.3 because USSG Chapter A structions mention Part of guideline where Munn’s Chapter majority before Part A the of so, In doing the finally determined. concludes that “the Instruc- majority misinterprets both USSG tions direct court to make any a §§ Captioned “Applica- and 1B1.1. 4A1.3 [under Instructions,” provides section 1B1.1 calculating § ap- USSG before the 4A1.3] apply provisions the courts are at plicable guideline range.” Maj. Op. following the Manual in the order: I be interpretation believe this incorrect (a) Determine, pursuant to IB 1.2 (Ap- for two reasons. Guidelines), plicable the guide- offense First, § 4A1.3 itself belies the USSG (Offense Chapter from
line section Two majority’s Captioned conclusion. “Ade- Conduct) applicable to the offense of (Poli- quacy History Category of Criminal § 1B1.2. conviction. See Statement),” cy in the that section (b) Determine the base offense level and provides: edition “If reliable information any appropriate specific apply offense history category indicates that the criminal characteristics, references, cross does not adequately reflect the seriousness special par- instructions contained in the past of the defendant’s criminal conduct or Chapter ticular Two in the the likelihood that the defendant will com- order listed. crimes, may mit other consider (c) adjustments Apply appropri- as imposing departing from victim, role, ate related to and obstruc- otherwise range.” A, B, justice tion of from Parts and C added). (emphasis USSG 4A1.3 Chapter Three. language clearly This assumes that section determining 4A1.3 be while should (f) Determine the defendant’s criminal having impose what sentence to cal- after specified history category as in Part A range, culated the applicable guideline Four. Determine Chapter from Part history not while the criminal B Chapter any Four other applicable category having ap- calculated before adjustments. plicable range. contrary in- (g) guideline range Determine the terpretation, illogically, gives sentenc- Five that Chapter corresponds Part A of ing court applicable guideline range no history level and the offense criminal from which depart. category determined above. (h) Second, particular guideline not range, support For USSG 1B1.1 does (f) B through majority’s determine from Parts G of conclusion. Subsection state, Chapter require- “Apply Five the of that Part section does 2D1.1(c). (“In rather, 4,” 4A1.3 Chapter but “Determine See USSG consid A of ering provision, under this history category the defendant’s use, Commission intends that the court A of Four.” as specified Part as reference, lBl.l(f). for a language de Given the USSG higher fendant with a or lower criminal above, in 4A1.3 does not quoted USSG history category, applicable.”). For ex calculating history catego a criminal volve ample, the district court could have de imposing particu ry but instead involves (f) parted history category from criminal VI Thus, subsection does not lar sentence. III category to criminal and still § 4A1.3 require applying in fact *14 reached the same of 188- Instead, proceeding before 5. so, If 235 months. it had done instruction does not come un the relevant sentence would not be based on USSG (i), provides: til subsection which “Refer 2D1.1(c). Wilson, United States v. any policy other statements or com Cf (11th 559, Cir.2009). Fed.Appx. mentary guidelines might in the war us, ambiguous Given the record before we in imposing rant consideration sentence.” simply should decline to assume that 1B1.1(i). Thus, given the lan Munn’s sentence was based on USSG 4A1.3, §§ I guage of USSG 1B1.1 and 2D1.1(c) instead, remand the matter that the did not would find Commission to afford the district court the opportunity grant intend for Over- clarify the bases of its deci representation Departure before determin sions. applicable guideline range. ing I guide- Because do not believe that the I affirm for these reasons alone. would lines, textually holistically, read either or However, assuming majority even that the support majority’s interpretation, correctly interpreted guidelines, because even that were not the case the case still be remanded for the dis should support assumptions record does not it to clarify
trict court whether Munn’s sen makes about the district court’s conclu- 2D1.1(c), tence was based on USSG sions, I respectfully must dissent. changed by Amendment 706. section Sidella, See, e.g., United States v. (4th Cir.1972)
1079, (remanding clarification);
sentence for Mintz, Fed.Appx.
v. Cir. 2008) (same). majority assumes that America, UNITED STATES of Munn’s sentence was based on USSG Plaintiff-Appellee, 2D1.1(c) (1) because the district court depart chose to 60 months from the bot Anthony STEWART, Maurice a/k/a (262-327 tom of the career offender Stewart, Marlon Jamaican a/k/a months), resulting and because sen Al, Defendant-Appellant. (202 months) squarely fit within tence No. 08-6575. would have been Munn’s what otherwise (188-235 of Appeals, United States Court months). Yet, ex when Fourth Circuit. 4A1.3, tent of under USSG Argued: Dec. 2009. easily the district court could have consid Decided: Feb. criminal history category ered different than the offense level rather base and/or provided
offense level Notes define a specified level for various factors in Chap “imposition of a sentence outside the ” 1B1.1(a)-(e). ter 3. Ap or, See USSG pur- plication require Instructions then poses of an Overrepresentation Departure, court to calculate the defendant’s criminal “assignment history of a criminal cate- history category from Chapter gory Four. See other than the otherwise 1B1.1(f). §id. category, in order to effect a sentence outside the Next, penultimate in the step apply 1(E) (2008) range.” Id. 1B1.1 cmt. n. Guidelines, ing the a sentencing court added).9