UNITED STATES of America, Plaintiff-Appellee, v. Enrique PEDRAZA, Defendant-Appellant.
No. 08-2062.
United States Court of Appeals, Tenth Circuit.
Dec. 22, 2008.
550 F.3d 1218
Terri J. Abernathy, Assistant United States Attorney, (Gregory J. Fouratt, United States Attorney, with her on the brief), Las Cruces, NM, for Plaintiff-Appellee.
Before HENRY, McKAY and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
Enrique Pedraza is serving a sentence for conspiracy to possess with the intent to distribute more than five kilograms of co-
I. Background
Mr. Pedraza‘s current incarceration resulted from his involvement in an elaborate scheme to smuggle over 700 kilograms of cocaine from Colombia to the United States, as we previously detailed in United States v. Pedraza, 27 F.3d 1515, 1517-20 (10th Cir.1994). On November 15, 1991, a jury convicted Mr. Pedraza of one count of conspiracy to possess with intent to distribute more than five kilograms of cocaine and one count of possession with intent to distribute more than five kilograms of cocaine. On April 23, 1992, the district court calculated Mr. Pedraza‘s sentence. Under then-current sentencing guidelines, the large quantity of drugs triggered a base offense level of 40, which was increased by two on account of Mr. Pedraza‘s leadership role in the conspiracy. When combined with his criminal history category of I, the guidelines prescribed a sentencing range of 360 months to life. The court sentenced Mr. Pedraza to 384 months’ imprisonment followed by five years’ supervised release. On appeal, we affirmed the conviction but remanded for resentencing due to the district court‘s failure to comply with
On November 1, 1994, the Sentencing Commission adopted Amendment 505, which reduced the upper level for all drug sentences to 38. U.S.S.G.App. C, Amendment 505. A year later the Commission made the new limit retroactive by enacting Amendment 536. U.S.S.G.App. C, Amendment 536. Under the amended guidelines, Mr. Pedraza‘s offense level would have been 38 rather than 40. Combined with the two-level increase and criminal history category of I, this would have resulted in a reduced guideline range of 292 to 365 months.
All of this occurred before United States v. Booker had transformed the
II. Discussion
A. Booker‘s Applicability to Resentencing Proceedings
The outcome of Mr. Pedraza‘s appeal was considerably less certain at the time the parties submitted briefs and held oral arguments. Since that time, however, we have decided United States v. Rhodes, 549 F.3d 833 (10th Cir.2008). Like Mr. Pedraza, Mr. Rhodes disputed the extent of the resentencing judge‘s authority to reduce his sentence. He argued that after Booker, the sentencing judge had the authority not only to reduce his sentence to the amended guidelines range but to reduce it even further if the
B. Statutory Grant of Resentencing Discretion
Booker‘s inapplicability does not end matters. A judge‘s resentencing authority is a creation of statute, and the fact that the Sixth Amendment does not mandate discretion to impose below-guidelines sentences during resentencing does not preclude a statute from doing so. The statute in question is
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to
28 U.S.C. 994(o) , upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
The district court is required to apply the guideline provisions in effect at the time of sentencing, United States v. Cruz-Alcala, 338 F.3d 1194, 1201 (10th Cir.2003), and herein lies the difference between this case and Rhodes. While Mr. Pedraza‘s resentencing hearing took place on September 4, 2007, Mr. Rhodes’ resentencing took place on April 29, 2008. In the interim, the Commission revised § 1B1.10. The new guideline explicitly denies authority to grant a downward variance, stating that “the court shall not reduce the defendant‘s term of imprisonment under
The 2006 version of § 1B1.10 said the following:
In determining whether, and to what extent, a reduction in the term of imprisonment is warranted for a defendant eligible for consideration under
18 U.S.C. § 3582(c)(2) , the court should consider the term of imprisonment that it would have imposed had the amendment(s) to the guidelines listed in subsection (c) been in effect at the time the defendant was sentenced, except that in no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served.
U.S.S.G. § 1B1.10(b) (2006) (emphasis added). The only action the guideline authorizes is a substitution of the former guideline range with the amended guideline range; it says nothing about a full-blown resentencing. The Commission‘s commentary provided further instruction. Application Note 2, for instance, said that when determining the amended guideline range, “the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced. All other guideline application decisions remain unaffected.” U.S.S.G. § 1B1.10, cmt.2 (emphasis added). Application Note 3‘s instructions went even further, stating that the amended guideline range “limit[s] the extent to which an eligible defendant‘s sentence may be reduced under
We are aware that the Ninth Circuit interpreted the guideline otherwise in United States v. Hicks, 472 F.3d 1167, 1172-73 (9th Cir.2007). The Hicks Court believed that the policy statement could be read consistently with broad discretion in resentencing. It noted that U.S.S.G. § 1B1.10(b) states that the court “should consider the term of imprisonment that it
Our interpretation is further bolstered by our prior refusal to interpret § 1B1.10 as affording a judge the discretion to apply the safety-valve provision of
III. Conclusion
Because Booker does not mandate judicial discretion to authorize a variance at a
McKAY, Circuit Judge, dissenting.
I regret that I cannot altogether agree with the majority‘s views in this case. While I disagree with United States v. Rhodes, 549 F.3d 833, for creating a circuit split by rejecting United States v. Hicks, 472 F.3d 1167, 1172-73 (9th Cir.2007), for now, to the extent that Rhodes applies to this case, we are bound by it. However, as the majority concedes, this “does not end matters.” (Majority Op. at 1220.) This defendant was resentenced under a prior version of the Sentencing Guidelines. The court in Rhodes relied in part on the amendment to U.S.S.G. § 1B1.10(b)(2), which added a statement that a district court shall not reduce a defendant‘s term of imprisonment below the amended guideline range unless the defendant received a below-guidelines sentence at the original sentencing proceeding. When this defendant was resentenced, however, neither the statute nor the applicable guideline spoke directly to the issue of the trial court‘s discretion to vary below the amended guidelines range. Given this silence, and in light of the fact that our learned colleagues on the Ninth Circuit read the statutory scheme to allow the exercise of such discretion, it cannot be argued that the statute and implementing guidelines applicable at the time this defendant was sentenced unambiguously barred the district court from varying below the guidelines in the resentencing proceeding. I would thus apply the rule of lenity to this statutory scheme. See United States v. Mojica, 214 F.3d 1169, 1174 (10th Cir.2000). That is particularly true in light of the intervening change, which I would infer was meant to modify and not just recharacterize the scheme as it applied when this defendant was resentenced.
My view is reinforced by what has happened since United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The appellate courts have increasingly been mandated to rely on trial court discretion in sentencing unless clearly prohibited. In that spirit, and applying the rule of lenity to cases arising before the amendment to the guidelines, I would remand and hold that at resentencing the trial court has the discretion to vary downward to the sentence it would have given if it did not feel constrained to treat the bottom of the amended guidelines range as a mandatory floor.