Lead Opinion
Judge KATZMANN concurs in a separate opinion.
Gilbеrto Rivera is a crack cocaine offender who was convicted after trial and sentenced in 1996 to a 292-month term of imprisonment. On January 14, 2008, Rivera filed a motion in the United States District Court for the District of Connecticut pursuant to 18 U.S.C. § 3582(c)(2) seeking a reduction of his sentence. Specifically, Rivera sought to benefit from the 2007 decisions by the United States Sentencing Commission (the “Commission”) to (a) reduce the sentences for offenses involving crack and (b) make the reductions retroactive. The district court denied the motion on the ground that Rivera was not eligible for a sentence reduction. Rivera filed this appeal, and we now reverse. Rivera was indeed eligible for a reduction, and we remand the case to the district court for a determination of whether he should receive one.
BACKGROUND
A. Rivera’s Sentence
1. The Calculation of the Guidelines Range
Rivera’s offense involved approximately 3.3 kilograms of crack cocaine. The highest base offense level prescribed by the drug quantity table — Level 38 — applied at the time of his sentencing to all crack offenses involving 1.5 kilograms or more of crack. U.S. Sentencing Guidelines Manual (“U.S.S.G.” or the “Guidelines”) § 2Dl.l(e)(l) (1996). Thus, Rivera’s base offense level was 38, to which there were no adjustments. As for criminal history, Rivera’s prior convictions earned him sufficient points under U.S.S.G. § 4A1.1 to placе him in Criminal History Category (“CHC”) IV. The applicable range under the offense guideline was therefore 324-405 months.
However, the nature of Rivera’s convictions subjected him to treatment as a career offender under § 4B1.1.
Thus, Rivera’s career offender status affected his Guidelines range by moving him from Level 38, CHC IV, with a corresponding range of 324-405 months, to Level 38, CHC VI, where the range is 360 months to life.
2. The Sentencing Proceeding
At the sentencing on September 10, 1996, the district court (Alan H. Nevas, J.) departed downward from the applicable range of 360 months to life. The basis for the departure was Rivera’s mental health. As the sentencing court noted, the presentence reрort included a history of head injuries. Rivera had undergone several psychological and neuropsychological assessments to determine his competency in connection with one of his prior prosecutions, and there were strong indications that Rivera suffered from a profound cognitive disability. As a result, the court invoked its power to depart based on Rivera’s mental condition, stating as follows: “[T]he court is going to depart downward three levels pursuant to [U.S.S.G. §§ ] 5H1.3 and 5K2.0.
B. The Motion for a Reduction of Sentence
On January 14, 2008, Rivera filed a motion to reduce his sentence pursuant to the retroactive application of the amended crack guideline. The district court denied the motion and Rivera moved for reconsideration.
On March 31, 2010, Rivera filed a notice of appeal.
DISCUSSION
A. The Sentencing Commission’s Retroactive Sentence Reductions and the Sentencing Modifications They Authorize '
The Sentencing Reform Act of 1984 (“SRA”), Pub.L. No. 98-473, tit. II, ch. II, 98 Stat.1987, requires the Commission to periodically review the Guidelines and to revise them as appropriate. See 28 U.S.C. § 994(o) (2006). When the Commission amends the Guidelines to lower the sentencing range for a particular offense, it is authorized by the SRA to decide whether and to what extent previously-sentenced offenders may benefit from the change: “If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” § 994(u). As the Supreme Court recently observed, these provisions allow for correction when a particular guideline becomes “a cause of inequality, not a bulwark against it.” Freeman v. United States, — U.S. -,
The Commission’s exercise of this statutory authority triggers an exception to the general rule that sentencing courts are not authorized to modify sentences after they are imposed. Specifically, 18 U.S.C. § 3582(c)(2) provides that
in 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 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.
One of the critical issues in this case is whether Rivera’s sentence was “based on” a subsequently-lowered sentence range within the meaning of § 3582(c)(2).
A retroactive amendment merely authorizes a reduction in sentence; it does not require one. In determining whether to modify a sentence, a judge must consider not only the traditional sentencing factors set forth in 18 U.S.C. § 3553(a), but also the post-sentencing behavior of the defendant and any public safety concerns a reduction in sentence would raise. U.S.S.G. § 1B1.10 cmt. n.l(B). Though a ruling granting or denying an eligible offender’s request for a reduction is reviewed for abuse of discretion, United States v. Borden,
Section 3582(c)(2) grants courts the authority to reduce sentences only if doing so is consistent with the Commission’s applicable policy statements. The relevant policy statement in this regard is U.S.S.G. § 1B1.10, entitled “Reduction in Term of Imprisonment as a Result of Amended
(1) In General. — In a case in which a defendant is serving a tеrm of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant’s term of imprisonment shall be consistent with this policy statement.
(2) Exclusions. — A reduction in the defendant’s term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if—
(B) an amendment listed in subsection (c) does not have the effect of lowering the defendant’s applicable guideline range.
U.S.S.G. § lB1.10(a) (emphases added). The Commentary to the section reiterates that eligibility for a sentence reduction “under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) [of § 1B1.10] that lowers the applicable guideline range.” § 1B1.10 cmt. n.l(A).
As for the extent of the permissible reduction in sentence, § 1B1.10(b)(2) provides that “the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range 30....” U.S.S.G. § lB1.10(b)(2)(A). If the original sentence was lower than the applicable range, the policy statement provides for a commensurate reduction in the amended sentence. § lB1.10(b)(2)(B) (“If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range ... may be appropriate.”).
Finally, despite United States v. Booker,
B. Our Precedents
The legal context in which we decide Rivera’s case also includes our own precedents, which establish two important principles. First, if a crack offender who was also a career offender under § 4B1.1 received no downward departure at his initial sentence, he is not eligible for a reduction, at least where “the career offender range ... remains unaltered by the crack cocaine amendments.” United States v. Martinez,
Second, if the sentencing judge in this case had said he was departing from the career offender guideline in order to base the sentence on the range provided by the offense guideline, ie., § 2D1.1, Rivera would be eligible for a sentence reduction. See McGee,
C. Analysis
This case is not controlled by Martinez. Though Rivera is a career offender, the sentencing judge departed from the
The government argues that Rivera is ineligible for relief under § 3582(c)(2) because, notwithstanding the downward departure, he was not sentenced “based on” a range that has subsequently been lowered by the Sentencing Commission, as that statute requires. Rather, it contends, he was sentenced “based on” the career offender guideline, which has not been amended. Relatedly, the government contends that Rivera is ineligible under § 1B1.10 because his “applicable” guideline range, which it asserts is the career offender range, has not been lowered by the retroactive amendment at issue, as that guideline requires.
We hold first that these two issues largely overlap. The Sentencing Commission promulgated § 1B1.10 to implement its statutory authority under § 994(u) to determine when and to what extent sentence reductions are retroactive and, once that authority is exercised, to guide sentencing judges who are considering sentence reductions pursuant to § 3582(c)(2). The statute authorizes a reduction when the original sentence was “based on” a sentencing range that has been lowered; the guideline authorizes one when the range “applicable” at the initial sentence has been lowered. Provisions enacted for the same purpose should be read in pari materia. See, e.g., United States v. Battista,
The question before us is this: What range was Rivera’s sentence “based on”— that is, what was his “applicable” sentencing range for purposes of § 3582(c)(2) and § 1B1.10? There are two candidates, as two ranges were implicated at his 1996 sentencing. The first was supplied by the career offender guideline (at least in part), and it was 360 months to life in prison (Offense Level 38/CHC VI). This was the “starting point” of the sentencing proceed
The stakes are high for Rivera. If he was sentenced “based on” the career offender range, he is not eligible for a sentence reduction. This is because the retroactive amendment reduces Rivera’s career offender offense level from 38 to 37,
On the other hand, if Rivera’s sentence was “based on” the range to which his sentencing judge departed, he is eligible for a sentencing reduction of up to 30 months. The same three-level departure from the revised career offender computation yields an Offense Level of 34 in Criminal History Category VI, with a corresponding range of 262-327 months. As mentioned, a reduction to the bottom of that range would shorten Rivera’s prison term by two and one-half years.
We hold that Rivera’s sentence was “based on” the range produced by subtracting three offense levels from the career offender computation. The resulting range was the one the sentencing judge found to be “applicable” to Rivera, and he chose a sentence at the low end of that range. That range is lowered when the retroactive amendment at issue is plugged into its calculation, even if everything else remains the same. Rivera is therefore eligible for a reduction.
The government contends that the range Rivera’s sentence was based on was the career offender range, but the sentencing judge rejected that range in favor of the one on which he actually based Rivera’s sentence. See United States v. Cardosa,
Our reading of the plain wording of § 3582(c)(2) is further supported by McGee. In rejecting the government’s argument that McGee’s sentence was “based on” the pre-departure, career offender range, as we do again here, we observed that the meaning of the language in § 3582(c)(2) and § 1B1.10 is “inherently contextual.” McGee,
The same is true with Rivera. As described above, the starting point for his sentence was a range of 360 months to life (Offense Level 38/CHC VI), but the judge determined that Rivera’s mental condition warranted a three-level departure to Level 35. The judge then imposed a sentence at the bottom of the resulting 292-365 month rangе. If Rivera’s sentencing range is computed in light of the retroactive amendment, the resulting offense level is 37, not 38. The same three-level departure from that level (again in CHC VI) produces a sentencing range of 262-327 months. Thus, there is ample reason to believe that Rivera would have received a sentence as low as 262 months — 30 months lower than the sentence imposed — had the offense guideline been amended before he was sentenced. In short, Rivera appears to have been “disadvantaged by the 100-to — 1 sentencing disparity that the crack amendments sought to correct,” McGee,
Our approach in McGee and in this case accords precisely with our obligation under § 3582(c)(2) and § 1B1.10 to
isolate whatever marginal effect the since-rejected Guideline had on the defendant’s sentence. Working backwards from this purpose, § 3582(c)(2) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence.
Freeman,
We recognized in McGee our obligation, both generally and in this specific setting, to let lenity play a role in the construction of the Guidelines where there is doubt about their scope. McGee,
In addition, as discussed above, all we decide here is the eligibility of Rivera for a sentence reduction under § 3582(c)(2), not his entitlement to one. See Freeman,
A contrary holding could produce anomalous and unfair results. The government concedes, as it must in light of McGee, that a career offender convicted of a crack offense is sometimes eligible under § 3582(c)(2) for a reduction if the sentencing judge departed from the otherwise-applicable range. Yet it seeks a rule limiting that eligibility to cases in which the sentencing judge explicitly stated that he or she was departing to the range established by the offense guideline. This case highlights thе potential unfairness of such a limitation. Rivera’s career offender range was 360 months to life (Level 38/ CHC VI). His range under the offense guideline was 324-405 months (Level 38/ CHC IV). His range after the district court’s departure was 292-365 months (Level 35/CHC VI). Thus, the sentencing judge in this case departed to a sentence below the range computed under the offense guideline. He might indeed have believed, as did the sentencing judge in McGee, that the range produced by the career offender guideline overrepresented the seriousness of Rivera’s criminal history, see U.S.S.G. § 4A1.3, and that therefore a sentence within the range produced by the offense guideline (324-405 months) was fairer. Had the judge imposed such a sentence and used that reasoning, the government agrees Rivera would be eligible for a sentence reduction. But if Rivera’s sentencing judge harbored that belief, he had no reason to express it, as Rivera’s mental condition warranted an even greater departure under § 5H1.3. Put another way, if the judge had had the foresight to depart in stages — first under § 4A1.3 to the range provided by the offense guideline and then a second departure under § 5H1.3 to 292 months based on Rivera’s mental condition — the government would agree that Rivera is eligible for a sentence reduction under McGee. But the judge’s failure to anticipate that fifteen years later we would be parsing his sentencing methodology in this manner, in the government’s view, should categorically deprive Rivera of the minor and long-overdue relief the 2007 amendment was intended to provide. We decline to adopt this crabbed approach. “There is no reason to deny § 3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.” Freeman,
Instead, we hold as follows: Where the sentencing judge departs from a range computed under the career offender guideline to a lower range, the sentence imposed was “based on” the latter range for purposes of § 3582(c)(2), and for the purposes of § 1B1.10 that range is the “guideline range applicable” to the defendant. If a subsequently-lowered guideline “was a relevant part of the analytic framework the judge used to determine the sentence,” Freeman,
McGee (and by extension our decision here) is in conflict with the decisions of several other circuits. For example, in Darton, the Tenth Circuit faced the same situation we faced in McGee — a request for a sentence reduction by a career offender who had received a criminal history departure under § 4A1.3 to a sentence within the range produced by the offense guideline. Darton,
Darton relied in part on the Eighth Circuit’s decision in Tolliver, which reached a similar result in a different (and unusual) setting. In Tolliver, the parties engaged in plea bargaining based on the assumption that the crack guideline would yield a range of 188-235 months. Tolliver,
The Sixth Circuit reached the same result in United States v. Pembrook,
Pembrook, Tolliver and Darton are all based on the same flawed premise — that the applicable range for the purpose of a sentencing proceeding must necessarily be the same as the applicable range for the purpose of a subsequent sentence modification. We see no reason why that must be the case. We acknowledge a “natural presumption that identical words used in different parts of the same act are intended to have the same meaning,” Atlantic Cleaners & Dyers, Inc. v. United States,
One circumstance in which the presumption is readily rebutted is “[w]here the subject matter to which the words refer is not the same in the several places where they are used,” Atlantic Cleaners & Dyers,
The subject matter of the phrase “guideline range applicable to the defendant” in § 1B1.10 is not a sentencing proceeding but a modification proceeding that occurs after (in this case, more than 10 years after) sentence has been imposed. The question in that context is not what sentence is appropriate, but rather whether the sentence actually imposed should be reduced in light of an intervening retroactive amendment. In that setting, common sense suggests that in deciding whether
Our conclusion that the “applicable range” may have one meaning for sentencing purposes and another for purposes of a § 3582(c)(2) proceeding finds support in our rationale in Martinez. The defendant there sought a modification under § 3582(c)(2) and contended that his initial sentence was “based on” the offense guideline because the sentencing judge consulted that guideline in calculating his range as a career offender. We disagreed, holding that his applicable range for purposes of § 3582(c) was the end result of the overall guideline range calculus — ie., the career offender range, not the interim steps along the way. Martinez,
“the term ‘sentencing range’ clearly contemplates the end result of the overall guideline calculus, not the series of tentative results reached at various interim steps in the performance of that calculus.” ... Therefore to determine which Guideline a defendant’s sentence is “based on” we look only to the end result of the overall calculus ... and not to the “interim” steps taken by the District Court.
Id. at 84 n. 3 (quoting United States v. Mateo,
When Rivera was sentenced, the offense guideline and the career offender guideline were both interim steps in the sentencing calculus, the end result of which was the lower range to which the sentencing judge departed. Thus, the applicable range at Rivera’s sentencing was the career offender range, but the applicable range for his 3582(c)(2) proceeding is the range on which the sentencing judge actually based his sentence.
Our approach is also consistent with the Supreme Court’s emphasis in Dillon on the fact that a § 3582(с)(2) proceeding is not a resentencing. It is, rather, a limited revisiting of a previously-imposed sentence, during which the analytic framework of the sentence is replicated with one exception — the provision that has been retroactively amended is substituted for the corresponding provision applied at the time of sentencing. See Dillon,
Finally, we acknowledge the Sentencing Commission’s proposed amendment to § 1B1.10, see U.S. Sentencing Comm’n, 76 Fed.Reg. 41332 (proposed July 13, 2011). Absent congressional disapproval, that amendment will become effective on November 1, 2011, and it will dramatically alter the landscape for sentenced prisoners who seek to benefit from this year’s retroactive reduction of crack sentences. Among other effects, the proposed amendment will preclude sentence modifications in situations like the one in McGee,
CONCLUSION
A remand for the purpose of allowing the district court to exercise the broad discretion afforded by § 3582(c)(2) is consistent with our approach to related sentencing situations. After Booker, we faced the question of how to deal on direct review with sentences imposed before that decision by judges who were under the erroneous impression that the Guidelines were mandatory. Our resolution of the plain error and harmless error issues in such cases was to remand them to the district courts “for determination of whether to resentence,” firm in the belief that “an appellate court will normally be unable to assess the significance of any error that might have been made.” United States v. Crosby,
The order denying Rivera’s motion for a sentence reduction is reversed and the case is remanded for a determination of whether such a reduction is appropriate in his case.
Notes
. Insofar as it is relevant here, U.S.S.G. § 4B1.1 provides as follows:
(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
(b) ... [I]f the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in
this subsection shall apply. A career offender’s criminal history category in every case under this subsection shаll be Category VI.
Offense Statutory Maximum Offense Level
(A) Life 37
(B) 25 years or more 34
(C) 20 years or more, but less 32 than 25 years
(D) 15 years or more, but less 29 than 20 years
(E) 10 years or more, but less 24 than 15 years
(F) 5 years or more, but less 17 than 10 years
(G) More than 1 year, but less 12 than 5 years
. At the time, § 5K2.0 allowed for a departure based on a circumstance of a kind, or to a degree, not adequately considered by the Commission. See U.S.S.G. § 5K2.0 (1996). Section 5H1.3 provided that a defendant's mental condition was "not ordinarily relevant” to the determination of whether to depart, see § 5H1.3 (1996), but the provision left room for a departure on that ground in extraordinary cases, see, e.g., United States v. Barton,
. The district judge who imposed sentence on Rivera in 1996 had retired. A different district judge (Ellen B. Burns, J.) denied Rivera’s motion for a reduction of sentence.
. See United States v. Ayala-Pizano,
. The First, Third and Fourth Circuits have agreed with our holding in McGee that when the sentencing judge departs from a career offender range to the range established by the offense guideline, a modification under § 3582(c)(2) is available if the latter range has been lowered by the retroactive amendment. See United States v. Flemming,
. One could characterize Rivera’s pre-departure sentencing range as based — at least in part — on the crack guideline. As discussed above, under the terms of the career offender guideline, the offense level from the career offender table did not apply to Rivera because the offense level drawn from the pre-amendment crack guideline was higher. See U.S.S.G. § 4Bl.l(b). Although this did not impact the pre-departure sentencing range for Rivera, it would for many other defendants if their convictions involved different quantities or they had received adjustments for acceptance of responsibility. Whether or not such sentences could be deemed to be “based on” the crack guideline, our holding in this case, as explained below, is based on the fact that the district court’s calculation of Rivera’s ultimate sentencing range and sentence would almost certainly have been different had the amended crack guideline been in effect.
. The difference results from the fact that under the amended guideline, the highest base offense level for crack offenses (Offense Level 38) now applies only where 4.5 kilograms or more of crack аre involved in the offense. Rivera's offense involved 3.3 kilograms, so his offense level under the amended guideline would be reduced from 38 to 36. See U.S.S.G. § 2Dl.l(c). The career offender guideline would thus take over the offense level computation and prescribe an offense level of 37. See § 4B 1.1(b).
. As was the case in McGee, our decision today is not in tension with United States v. Williams,
Williams has no bearing here because it involved the special context of a departure from an otherwise applicable mandatory min
. See Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity: Hearing Before the U.S. Sen. Comm, on the Judiciary, Subcomm. on Crime and Dmgs (Apr. 29, 2009) (statement of Lanny A. Breuer, Assistant Att’y Gen., Crim. Div., U.S. Dep't of Justice), available at http://judiciary.senate.gov/ pdp09-04-29BreuerTestimony.pdf, at 10-11.
. A larger step was taken in June of this year, when the Commission voted to give retroactive effect to the amendments passed in response to the Fair Sentencing Act of 2010, Pub.L. No. 111-220, § 2, 124 Stat. 2372, 2372. That statute substantially increased the amounts of crack required to trigger mandatory minimum penalties, and the Commission’s subsequent amendment of § 2D 1.1 substantially reduced the sentences recommended by the Guidelines for crack offenders. Unless Congress affirmatively disapproves the Commission’s action, the retro-activity of this more recent lowering of crack sentences will become effective on November 1, 2011, and the Commission estimates that as many as 12,000 inmates will be eligible for a reduction under § 3582(c)(2). See U.S. Sent’g Comm'n, News Release: U.S. Sentencing Commission Votes Unanimously To Apply Fair Sentencing Act of 2010 Amendment to the Federal Sentencing Guidelines Retroactively (June 30, 2011), available at http://www.ussc.gov/Legislative_and_Public_ Affairs/Newsroom/Press_Releases/20110630-Press_Release.pdf, at 1.
. Tolliver was decided before the recent Freeman decision by the Supreme Court. Since the stipulation resolving Tolliver’s § 2255 motion appears to have been the functional equivalent of a sentence bargain under Fed.R.Crim.P. 11(c)(1)(C), Tolliver appears to have been abrogated by Freeman.
. See also United States v. Caraballo,
. The court in Pembrook found that § lBl.lO’s limitation on the degree of a reduction under § 3582(c) supports the government’s argument that the "guideline range applicable to the defendant” must refer to the pre-departure range. Pembrook,
A simple hypothetical reveals the flaw in this reasoning. Assume the sentencing judge in Pembrook, after first departing to the range produced by § 2D 1.1 on the ground that the career offender guideline overrepresented the seriousness of the defendant’s criminal past, departed an additional six months because an unreasonable delay in prosecution deprived the defendant of an opportunity for a concurrent sentence. See United States v. Los Santos,
. Though we are aligned with the Third and Fourth Circuits in our result, we do not fully agree with thеir reasoning. Specifically, the Fourth Circuit in Munn adopted the following approach: When a sentencing judge departs under § 4A1.3 from the career offender range to the drug offense guideline range, the post-departure range is the "applicable” range under § IB 1.10 for a reason unique to criminal history departures. The reason is the order of operations prescribed by the application instructions in § IB 1.1. Those instructions require the sentencing judge to "[djetermine the defendant’s criminal history category as specified in Part A of Chapter Four,” § IB 1.1 (a)(6), before determining the guidelines range from Chapter Five, § 1B1.1(a)(7). Since the authority to invoke criminal history departures is set forth in Part A of Chapter 4, Munn reasoned, such departures must therefore precede the determination of the applicable range: "[I]t would make little sense for a sentencing court to apply all of Chapter Four, except for an assessment of the applicability of an Overrepresentation Departure [i.e., a criminal history departure under § 4A1.3, as in McGee], only to return to that issue after determining the defendant’s applicable guideline range from Chapter Five.” Munn,
We note first that this reasoning, which implicitly distinguishes between Chapter Four-based criminal history departures and Chapter Five-based departures, such as the one in this case, would support a conclusion that Rivera is not eligible for a sentence reduction despite our decision in McGee. But we are wholly unpersuaded by it for two reasons.
First, the application instructions in § IB 1.1 simply tell judges to count up the criminal history points (Part A of Chapter Four) and then determine whether career offender or one of the other sentence-enhancing statuses is present (Part B). The fact that the authorization for the criminal history departure is located in Part A (§ 4A1.3) hardly requires the odd conclusion that a judge is supposed to decide whether to depart from the applicable criminal history category as part of his or her determination of what that category is.
Second, contrary to the reasoning of Munn, we see no anomaly in a judge “return[ing] to” the criminal history departure after determining the applicable guidelines range from Chapter Five. Chapters Two and Three of the Guidelines Manual provide numerous departure options that require judges to perform the same task. For example, § 2D 1.1 recommends a departure where reverse sting operations distort the drug quantity. § 2D 1.1 cmt. n.14. The fraud guideline recommends one where the loss quantity substantially overstates the seriousness of the offense conduct, § 2B1.1 cmt. n. 19(C), or where frauds with non-monetaiy objectives cause reasonably foreseeable physical or psychological harms, § 2B1.1 cmt. n,19(A)(ii). Among the recommended Chapter Three departures is an upward departure where there is a vulnerable victim enhancement in the current case and the defendant’s criminal history includes a crime that involved a vulnerable victim. § 3A1.1 cmt. n.4. No one could argue that these and the various other departures sprinkled throughout Chapters Two and Three amount to departures to, rather than from, the applicable range, even though the same application instructions guideline require judges to apply Chapters Two and Three before determining the applicable range from Chapter Five. § lBl.l(a)(2)-(3). Rather, just as is the case with criminal history departures under § 4A1.3, sentencing judges "return to” those departure grounds, if appropriate, after calculating the applicable range.
In sum, our conclusion that post-departure ranges are the ones that count in a § 3582(c)(2) proceeding is not grounded in the Guidelines’ application instructions or definitions of the term “departure,” issues that have received extensive attention from our sister circuits on both sides of the circuit split. It based on our conclusion that the sentencing range a defendant's initial sentence was "based on” is, quite simply, the range that was used by his or her sentencing judge in imposing sentence. Nothing in § 3582(c)(2), § 1B1.10 or elsewhere in the Guidelines Manual precludes that result.
. U.S. Sentencing Comm’n, 76 Fed.Reg. at 41332 (amending commentary to § IB 1.10 to define "applicable guideline range” at initial sentencing as the range determined "before consideration of any departure provision in the Guidelines Manual”).
. Id., (amending § 1B1.10 to authorize sentence modification where defendant received substantial assistance motion and permitting comparable departure from subsequently-lowered range). We held in Williams that a defendant who received a downward departure pursuant to substantial assistance motions pursuant to both U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) was ineligible for a modification because the mandatory minimum of 240 months applied as his guidelines range (despite the motions), and thus his sentence was not "based on” a guidelines range that had been subsequently lowered by the Commission.
[T]he Commission has determined that, in a case in which the term of imprisonment was below the guideline range pursuant to a government motion to reflect the defendant's substantial assistance to authorities (e.g., under 5K1.1), a reduction comparably less than the amended guideline range maybe appropriate. Section 5K1.1 implements the directive to the Commission in its organic statute to "assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed ... to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.” See 28 U.S.C. 994(n). For other provisions authorizing such a government motion, see 18 U.S.C. § 3553(e) (authorizing the court, upon government motion, to impose a sentence below a statutory minimum to reflect a defendant's substantial assistance); Fed.R.Crim.P. 35(b) (authorizing the court, upon government motion, to reduce a sentence to reflect a defendant’s substantial assistance). The guidelines and the relevant statutes have long recognized that defendants who provide substantial assistance are differently situated than other defendants and should be considered for a sentence below a guideline or statutory minimum even when defendants who are otherwise similar (but did not provide substantial assistance) are subject to a guideline or statutory minimum. Applying this principle when the guideline range has been reduced and made available for retroactive application under section 3582(c)(2) appropriately maintains this distinction and furthers the purposes of sentencing.
U.S. Sentencing Comm'n, 76 Fed.Reg. at 41334 (emphases added).
Concurrence Opinion
concurring:
I concur in the judgment that the Rivera is eligible for a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2) and the retroactive amendments to the crack cocaine sentencing guidelines. I also agree with much of the majority’s reasoning. To begin with, I share the majority’s view that we must understand the retroactive crack amendments as an effort by the U.S. Sentencing Commission to provide a “partial remedy for the urgent and compelling problem of crack-cocaine sentences.” Freeman v. United States, — U.S. -,
As the majority makes clear, in order for Rivera to be eligible for a sentence reduction under § 3582(c)(2), it is not sufficient that he was sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission”; the statute requires also that the sentence reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” United States v. Martinez,
The majority reads these separate eligibility requirements — that the defendant have been sentenced “based on” a subsequently lowered range, and that the amendment have an effect of lowering the defendant’s “applicable guideline range”— as essentially one and the same. As the majority acknowledges, other circuits do not treat these requirements as equivalent. The Third Circuit, for example, has concluded that the “based on” requirement and the policy statement’s language are “complementary” and that the policy statement is “narrower.” United States v. Doe,
Unlike the majority, which concludes that the meaning of § 3582(c)(2) and § 1B1.10 is straightforward, I find the relationship between the statutory “based on” requirement and Commission’s policy statement to present a close and difficult question. On the one hand, the majority’s reading, by interpreting the policy statement in a way that would “permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence,” Freeman,
On the other hand, Congress has plainly granted the Commission, through its policy statements, the authority to “specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” 28 U.S.C. § 994(u); see also Dillon v. United States, — U.S. -,
The panel in McGee faced a similar interpretive conundrum. There, like here, the government argued that the policy statement “treats the applicable guideline range as the pre-departure range ...[,] which ... courts have held is unaffected by [the crack amendment].”
As I read McGee, we are compelled to hold that the version of the policy statement applicable at times relevant to Rivera’s sentencing was ambiguous. To my mind, the ambiguity described in McGee does not disappear merely because Rivera’s departure falls under Chapter Five of the Guidelines Manual and was based on his diminished mental condition, whereas the departure in McGee arose from a Chapter Four provision and involved the overrepresentation of McGee’s criminal history. In declining to adopt a reading of the policy statement that “would lend itself to excessive formalism,” id. at 228, McGee did not suggest that the particular chapter in which the Guidelines provision authorizing the pertinent departure appears should make any difference.
The rule of lenity, which applies to our interpretation of the Guidelines, requires ambiguities like the one at issue here to be resolved in the defendant’s favor. See United States v. Simpson,
Absent congressional disapproval, the proposed amendment would take effect on November 1, 2011. Because by the terms of the proposed amendment, courts are to use the version of § IB 1.10 that is in effect on the date of the sentence reduction proceeding, the Commission's clarification of the term "applicable guideline range" is of no consequence to Rivera's eligibility.