*1 Lanham Act Syngenta’s remand sary to rea- summary judgment, Bunge granted court to determine for the district standing claim (1) have did not Syngenta soning Syngenta whether it not the first instance was claim because bring the to (2) the claim under the Bunge’s signs standing bring to and competitor; has Bunge’s speech. proximate and caus- commercial test constituted zone-of-interests had not ality requirement. under advise- matter this While its deci- issued Court ment, Supreme the IV Lexmark, the Su- Lexmark.
sion in split, circuit resolved Court preme reasons, affirm the we foregoing For test zone-of-interests establishing the dismissing judgment of the as the causality requirement proximate third-party benefi- Syngenta’s USWA standing to analyzing analysis proper grant pleadings. claims on the ciary Act. Lanham claim under allege a Bunge Syn- on summary judgment of The Su- Lexmark, at 1391. vacated and Act claim is Lanham genta’s rejected the expressly Court also preme proceed- for further claim is remanded commercial challenged requirement opinion. with this ings consistent See id. competitor. aby made speech be infer (“It thus a mistake at 1392 false Act treats Lanham
that because competi- unfair a form of
advertising as only the false-adver-
tion, protect can it competitors.”). direct
tiser’s Syngenta’s stand analyzed
As it now-abrogated circuit’s this ing under America, STATES of UNITED yet standard, has court district Plaintiff-Appellee standing has Syngenta ruled on whether prox test and the zone-of-interests Bunge con causality requirement. imate PARKER, Omar Santonio affirm may nevertheless we tends Defendant-Appellant. summary judgment grant ruling America, alternate court’s States United did not challenged statements Bunge’s Plaintiff-Appellant ruling speech, commercial qualify Looking past Syngenta disputes. Parker, Defendant- Omar Santonio af standing determination threshold Appellee. a con merits firm on the basis however, law, would be point tested 13-1592, 13-1714. Nos. jurisdiction.” We assuming “hypothetical Appeals, Court approach. rejected have previously Eighth Circuit. Cent., GreatLodge.com, Inc. v. Outdoor (8th Cir.2011) Inc., 18, 2014. April Submitted: (“[A] hypothetical may not assume Aug. Filed: questions contested to decide jurisdiction in doubt.” jurisdiction is its of law when citation
(internal marks quotation
omitted)). it neces- find Accordingly, we
demned, see Williams, Cir.2014). 638-39 Despite our respect for the Sixth Cir- cuit, dowe not consider our it court’s role in interpreting criminal statutes or the Guidelines to err on the side the govern- ment, much less make policy decisions Congress entrusted to and the Sentencing Commission. in King, As the ambiguity in this case must benefit the defendant. See King, 595 F.3d at 852. time, At same *4 we reaffirm a district court may fully Skrien, Michael A. Asst. Fed. Public De- account for a defendant’s criminal history fender, Girardeau, MO, Cape argued, for under 3553(a) U.S.C. even if the appellant. Guidelines provision’s ambiguity masks Ferrell, Larry H. defendant’s Asst. status as a Atty., U.S. career Cape offender. That Girardeau, MO, (Richard is exactly argued what the district G. court1 Calla- did han, case, Atty., Louis, U.S. MO, correctly St. calculating on brief), 46-month for appellee. range Guidelines vary- then ing upward to 84 months in prison. We RILEY, Before Judge, Chief BENTON reject therefore the arguments in both the KELLY, Circuit Judges. government’s appeal (asserting the sen- short) tence was too and Parker’s appeal RILEY, Judge. Chief (asserting the sentence was too long), and years More four than passed have since affirm the district court’s carefully consid- King United 849- ered sentencing decision. (8th Cir.2010), a problematic noted am- biguity in the career provision offender I. BACKGROUND the United States Sentencing Guidelines (U.S.S.G. Guidelines) 4B1.2(c). The Shortly after Congress passed the Fair Sentencing Commission has taken no ac- Sentencing 2010(Act), Act of Pub.L. No. tion to resolve the ambiguity, so 111-220, once (codified 124 Stat. 2372 in scat again we face an unsavory choice between tered U.S.C.), sections 21of Santonio Par imperfect two interpretations this ker received a prison 100-month sentence Guidelines provision. On hand, the one for distributing cocaine base possess the government’s interpretation ing at least five grams of cocaine —which base with makes the policy most sense—would re- intent distribute, 841(a). see 21 U.S.C. quire ignore us to the rule of lenity and a At this initial sentencing, the district court fair reading of provision’s text. On the determined over the government’s objec other, the defendant Santonio Parker’s in- tion that Parker was not a career offender terpretation accords with the rule 4B1.1(a). —which The career of of lenity and the plain text —leads to provision fender requires “at least pri- two result the Sixth Circuit recently con- or felony convictions of either a crime of 1. The Rodney Honorable Sippel, W. of Missouri. Judge District for the Eastern District request for an granted government’s offense.” a controlled substance violence Considering variance. the 18 concededly upward had one Id. 3553(a) factors, violence,” the district court government and the U.S.C. “crime conviction for Missouri found Parker’s “violent” criminal to his 2005 pointed as resisting arrest forcefully underrepresented. If not for Parker’s violently or was four-year prison sen- 2005 conviction and the am- non-qualifying the second. imposed 4B1.2(c), on for this conviction the district biguity tence in U.S.S.G. 2005) as a (January day ... explained, the same Parker “would be seven-year prison sentence prison consecutive months” in under the looking Relying 3553(a) on offense. non-qualifying weighing After Guidelines. the re- court concluded King, the district factors, “a the district court determined qualify did sisting arrest conviction of months the statuto- sentence satisfies because it had predicate offender a career sentencing.” ry purposes of non-qualifying aggregated with to be government ap- and the Both Parker initially filed sentence. appellate jurisdiction un- peal.2 We have then abandoned its appeal, but notice der 28 U.S.C. career of- to the district court’s challenge govern- granted We fender decision. II. DISCUSSION appeal. motion to dismiss its ment’s *5 review the sentence We initial after Parker’s Nearly years two familiar abuse of discretion stan Gall’s extended sentencing, Supreme the Court States, dard, v. 552 U.S. see Gall United for cocaine penalties the Act’s lowered 586, 38, 51, 128 S.Ct. defendant, Par every like offenses to base (2007). by ‘ensuring] that the begin “We ker, the Act’s effective sentenced after significant pro court committed no district ” v. Dorsey See date. Scott, error.’ United States cedural U.S. -, -, 132 S.Ct. Cir.2013) (alteration (8th 910, 917-18 moved to va Parker L.Ed.2d Gall, (quoting original) pursuant to 28 U.S.C. cate his sentence 586). Miscalculating the Guide 128 S.Ct. 2255(a), government agreed the and “significant procedural er range is a lines resentencing. him Dorsey entitled ror,” Gall, the motion and va granted court inter the district court’s and review “[w]e original sentence. cated application guidelines of the pretation and Bates, novo,” United States revived de resentencing, At the Cir.2009). “Once assured the qualified Parker theory its sound,’ we ‘procedurally the sentence is again enhancement. Once career offender reasonableness by its ‘consider the substantive the district court stood citing King, an imposed under abuse-of- sentencing.” the sentence original ... at the “ruling standard[,].... tak[ing] into ac discretion calculating advisory After Guidelines of the circumstances.’ totality prison, months in count of 37 to 46 range (alterations Scott, F.3d at 918 request for a denied Parker’s district court Gall, (quoting original) omission in positive on his variance based downward 586). 51, 128 S.Ct. partially U.S. at conduct post-sentencing juris- implicate our govern- does not Parker’s motion diction, moves to dismiss the 2. Parker also govern- reject the we choose to theory govern- so appeal that "the ment’s on the and dismiss right appeal on the merits clearly their ment's [sic] waived ment has litigated.” motion as moot. issue offender] have th[e Appeal 3553(a).” A. Government’s (internal quotations Id. omitted). alterations According government, to the the dis Law of the case thus has no role to play trict procedurally erred in its Guide here. § 2255 requested motion by lines calculation disqualifying Parker “that his sentence be vacated and he be for the career enhancement, offender see in light resentenced of Dorsey.” (Empha- 4B1.1(a). Parker, According to added). sis court, The district by granting correctly applied our motion, “effectively wiped the slate precedent, construing career offender clean.” Although Id. the district court provision’s against ambiguity govern vacated Parker’s sentence grounds “on un- ment required by lenity. rule of related to the” issue, career offender “that agree We with Parker.
fact does not affect our conclusion.” Id.
a plenary
received
resentencing, so
1. Law of the Case
the district court “was not
bound
Before toning to the merits of the
law of the case doctrine
apply
the”
government’s
appeal,
current
we must first
career criminal offender decisión “that had
explain why
government’s
failure to
applied
“prior
been
at” Parker’s
sentenc-
prosecute its
appeal
earlier
does not make
Id.
ing.”
the district court’s initial career offender
determination “law of the case.”3
Lenity
Rule of
Although the “law of the case” doc
The “law of the case” doctrine
trine does not stand in
government’s
provides that “when a court
upon
decides
way, the rule
lenity presents
an insur
law,
rule of
that decision should continue
mountable hurdle.
to govern the same issues in subsequent
stages in the same case.” Arizona v. Cali
The “venerable rule” of lenity
*6
fornia,
605, 618,
1382,
103 S.Ct.
in large
flows
part from “the fundamental
(1983).
75
318
L.Ed.2d
When a defen
principle that no citizen should be ...
dant’s “entire sentence” is “set aside” and
subjected to punishment
not clearly
the defendant receives “a de novo resen- prescribed.”
Santos,
United States v.
553
tencing,” the doctrine does not apply
507,
to the
514,
U.S.
rights
single sen
only
aggregated
With
construction itself.”
old than
less
much
provisions
“under the
counting
tence
(5
Wiltberger,
(c),”
[]4A1.1(a), (b),
is unclear
or
it
§
(1820) (Mar
Wheat.) 76, 95,
arrest” sentences receive criminal' did not tence be cannot day,” the sentences on the same points under all because the must be counted but “separately” counted 4Al.l(a) solely ag- to an assigned were Id. sentence.” “as a adding Without single sentence. gregated qualifying from four-year sentence con- resisting arrest qualifying offense, from seven-year sentence “single sen- must be counted viction already long offense was non-qualifying non-qualifying together tence” with number the maximum enough to receive “imposed on conviction companion *7 4Al.l(a). quali- the Noting § under points day,” as same follows: add even separately not did fying offense []4Al.l(a), § applying purposes For (b), (c), 4Al.l(a), as § under single point (b), (c), are count- if sentences and 4B1.2(c) apply, § necessary for sentence, longest use the as a ed not a career offender. maintains he is if concurrent imprisonment sentence If consecutive imposed. were sentences considera- “[a]fter we decided King, In aggre- use the imposed, were sentences reading “is consis- study” that ble imprisonment. 4B1.2(c) gate sentence §§ language of with the tent in the 4A1.2(a)(2) support and also finds were sentences Id. Because “consecutive King, 595 § 4A1.1.” non- structure qualifying and for Parker’s imposed” “that ‘where recognized again offenses, We the 850. companion qualifying as treated ... are to be prior convictions sentence aggregate “use the court must of section purposes for one sentence This means Parker’s Id. imprisonment.” the whether 4Al.l(a)-(c), clear it is not sentence qualifying prison four-year criminal convictions receive his does not count. King, individual See 595 F.3d tory points.’ (quoting Id. United States v. at 852. Ruhaak, Fed.Appx. Cir. B longer Defendant receives a con- curiam)). 2002) per (unpublished Our de qualifying current sentence on the Peters, States v. 215 F.3d cision United 4A1.2(a)(2), felony. § only Under (8th Cir.2000), supports also longer felony the qualifying sentence There, if reading. recognized we 4Al.l(a)- § would be counted under non-qualifying offense receives the maxi (c). Thus, qualifying felony the history points mum “three criminal under would “separately” be counted be- 4A1.1(a),” companion qualify section then cause non-qualifying felony the is “not ing offenses will receive criminal his ignored purposes the 4A1.1(a), (b), tory points under section 4Al.l(a)-(c). § (c)” [qualify and thus will “not ‘prior as] 3. Defendant C receives consecutive meaning guide felonies’ within the of the sentence on the qualifying felony but lines.” Id. at 863. non-qualifying sentence alone is long enough government many points offers a different read to earn as ing. Theorizing that as the two sentences qualifying sen combined—the 4A1.2(a)(2), part tence “constituted of the situation here. Under calculation determined the number of sentences for both convictions history points assigned 4A1.1,” aggregated, under are meaning quali- fying felony insists “Parker’s 2005 sentence Re “counted sisting felony separately” Arrest was counted from the non-qualifying under 4A1.1(a) and, therefore, 4Al.l(a)-(c). qualifies sentence under as predicate felony under 4B1.1.” In examples These show that if the sentences Williams, the Sixth Circuit embraced the concurrent, are possible it is quali for the government’s theory and declared there fying felony separately to count from the Williams, ambiguity.” was “no 753 F.3d non-qualifying felony: longer sentence course, previously rejected 639. Of we 4A1.1(a)-(c). alone receives government’s theory in King, so we But if qualifying nonqualifying agree could not with the Sixth Circuit even sentences are consecutive and the non- if See, Williams our persuaded panel. qualifying long enough sentence is to earn e.g., Bear, United States v. Sun 4Al.l(a)-(c) many points as the (8th Cir.2002). sentence,” “aggregate entire it is unclear whether underlying qualifying offense
Attempting to distinguish King, the gov-
any points
receives
of its own under those
emphasizes
ernment
that case involved
4A1.2(a)(2);
subsections. See U.S.S.G.
concurrent sentences. But King’s logic is
King,
current sentences —the situation in sarily points ‘receive[s]’the ascribed to the King. (a)-(c).” Because it impossible say group is under King, subsections which (third conviction separate receives at F.3d in origi alteration nal). points 4Al.l(a)-(c), (e) § under lenity Subsection instructs the district applies and the qualifying conviction court to 1 point for each “[a]dd sen- Ben- beauty goodness.” of or of a own ideal of a conviction resulting from tence Cardozo, the Judi- The Nature jamin N. any not receive that did violence crime appellate As Process (c) cial (a), (b), ... because or under points law, make follow the judges, we must as was counted sentence such re- sentencing decisions categorical policy 4A1.1(e); see, e.g., § U.S.S.G. sentence.” Sentencing Congress for and the served Tolbert, Fed.Appx. v. United States Commission. Cir.2014) (7th per (unpublished 701, 704 4Al.l(e) (“The curiam) § is to purpose lenity requires us to The rule of crimes of history points add criminal comparatively pow of the err on the side under counted are not that violence defendant, government— not the erless (e) “ (c)”). 4A1.1(a), (b), Subsection or richest, rep and best powerful, ‘the most aggregated recognizes that expressly before us.’ litigant appear resented any “receive may not crime of violence v. United Greenlaw (c).” (a), (b), U.S.S.G. under points (2008) 244, 128 S.Ct. Parker, 4A1.1(e). that is According Samuels, (quoting United States his in this case: exactly happened what Cir.1987) (R.S. (8th Ar of a part arrest sentence resisting nold, J., reh’g in denial of en concurring id., sentence,” enough to earn long “single banc)). 4Al.l(a) points under maximum in join the Sixth Circuit We cannot sen adding qualifying his without even in the ambiguity a real brushing aside Therefore, sentence underlying tence. Seeking to provision. offender career the non- from separately not count did result,” a “ridiculous what it termed avoid “receiving] any by offense qualifying analy- with little the Sixth Circuit decided (a), (b), (c),” id. See “ says nothing regarding that 4B1.2 sis 4A1.1(a); at King, 595 F.3d multiple crimes within scoring 850. Williams, 753 single predicate episode.” guidelines “reading of may plausi- reading That be F.3d at 639. 595 F.3d 850. plausible.” King, consider- explained “[a]fter But as we ble. give compels us to lenity therefore only plausible rule of study,” it is not the able text, reading. of his See the benefit 4B1.2’s him consistent with reading Oetken, 241 F.3d structure, 595 F.3d purpose. .2001). Cir 850. criticisms of other The Sixth Circuit’s Policy similarly unpersuasive. are King attention to lenity, govern- the rule of directs reader’s
Despite
Williams
“Each of
point:
accepting
undisputed
protests
an obvious
ment
convictions,
his
including
offender
reading
defendant’s]
of the career
plausible
[the
...,
independently
[qualifying]
result
conviction
leads to the perverse
guidelines
criminal histo
supports
career
the assessment
may evade the
defendants
some
(c),”
4A1.1(a), (b), or
committing
ry points
more
enhancement
offender
Williams,
add
(emphasis
at 639
does not
crime
long extra
crime—so
ed).
sentence,
changes di
Williams
sen-
Next
in a consecutive
results
qualify
no
rection,
requires
4B1.2
saying, “Section
gov-
recognize and share
tence. We
change misses is
Id. What
words of more.”
concern. But
ernment’s
4B1.2,
which does
unambiguous text
Cardozo,
knight-
not a
“is
judge
Justice
that a
enough
more.
It
is not
require
errant,
pursuit
of his
roaming at will
*9
(i.e., in
independently
today’s
could
Neither
conviction
decision nor our decision
convictions)
King
in
endorses the idea that a
companion
count
defendant
absence
should,
matter,
4A1.1(a)-(c).
policy
as a
“evade career
§
The conviction
must
offender status because he committed
4B1.2(c)
actually count. See U.S.S.G.
offense,”
more crimes than the qualifying
(allowing
only
the enhancement
if “the
Williams,
F.3d at analytic 639. Given the disparity 4. Harmless Error Williams, between King and it suffices to note that the King defendant’s “relatively case, however, In this our sophisticated argument” made sense to our strict adherence to the rule of law does not experienced King panel. King, 595 F.3d public just cost the sentence. Unlike a at 847. statute, the Guidelines are not 1.2(c) amending It seems that 4B delet- authorized for” offenders with "two or more ing "separately” including felonies count- [violent or controlled felo substance] 1.1(e) ed 994(h). 4A would be consistent with nies.” 28 U.S.C. separateness A Sentencing statutory requirement 994(h). Commission's obli- appears nowhere in gation 994(i)(1) guidelines "assure that the specify (specifying id. "offenses com Cf. sentence ... at occasions”). or near the maximum term mitted on different
811
Booker,
guideline range
if the
would be different
v.
mandatory. See United
738,
the ... offense.”
was different for
543 U.S.
(2005). Indeed, it would be
L.Ed.2d
government’s
conces
Given
court
to
a district
error for
procedural
sion,
govern
doubt we could offer the
we
mandatory
pre-
as
the Guidelines
treat
if
relief even
the district court had
ment
See, e.g., Peugh v.
sumptively reasonable.
analysis
in
technically erred
its
-,
-,
569 U.S.
4B1.2(c).
are not sub
“Harmless errors
2080,
2072,
L.Ed.2d 84
S.Ct.
Omar,
ject to reversal.” United States
ambiguity
problematic
to the
Applied
(8th Cir.2009).
362, 366
The
merely
4B1.2(c),
lenity
re-
the rule
under
plainly
court
this case
district
to calculate the
court
quires the district
4B1.2(c)
ambiguity
§in
led to an
stood the
way
in the
that
sentencing range
advisory
inconsistent with Parker’s
advisory range
rule does not
The
benefits the defendant.
history,
so the
actual
ignore the
court
to
require the district
well above that
court sentenced Parker
4B1.2(c)’s
ambi-
which
crimes of violence
fact,
Parker believes “the dis
range.
from the career offender
guity excludes
him as a
essentially
trict court
sentenced
calculated
Having correctly
enhancement.
Supreme
Court has
career offender.”
“
advisory Guidelines
and considered
...
‘sally
forth’
instructed us not
ob-
independent
court’s
range, the district
to the Govern
up
take
errors adverse
in the
ambiguity
ligation regardless
—
Greenlaw,
ment,”
just
appro-
impose
Guidelines—is
effective
government
when the
S.Ct.
weigh-
a careful
based on
priate sentence
harmless, and the
ly concedes the error is
3553(a)
in each individ-
factors
ing of
agrees. The record
apparently
defendant
id.; Booker,
See,
e.g.,
ual case.
judge
that the district
provides “assurance
The district court
ings mitigate, that sometimes sometimes magnify, punishment the crime and the case, complex sentencing the dis- ensue.” Koon v. United trict court every answered legal question S.Ct. L.Ed.2d 392 correctly, imposing procedurally sound substantively reasonable sentence. 3553(a)
§The factors and the sen affirm We the district court’s well-rea- tencing judge’s traditional discretion au- sentencing soned decisions. (4th Cir.2009)
BENTON,
Fed.Appx.
(unpublished
Judge, concurring.
Circuit
curiam).
per
opinion
court’s
in all
I
in the
concur
(e),
Relying on
the court
subsection
con-
4Al.l(e)
one:
has no rele-
respects but
cludes
sentence could
vance in this case.
plausibly
any points
not receive
under sub-
(e)
states,
“Subsection
ex-
(c).
(a), (b),
sections
This conclusion is
*12
recognizes
aggregated
that an
pressly
correct,
gives,
not for the reason the court
may
any
not ‘receive
crime of violence
but rather because the Guidelines do not
(c).’
(a), (b),
true,
This is
points under
an “aggregate
define
sentence.”
(e)
Par-
is not relevant to
but subsection
generally
The Guidelines
use the word
(vio-
ker,
qualifying
sentence for a
whose
“aggregate”
referring
quantita-
when
to a
lent)
with a sentence
aggregated
crime is
E.g.,
tive total.
Notes to
2D1.11 (“ag-
(non-violent) crime.
non-qualifying
for a
gregate
quantities
of all such chemi-
4Al.l(e)
say, §
Application
As the
Notes
(“the
cals”);
Notes to
2T1.1
aggregate
two
applies where “the defendant received
tax loss from the
togeth-
offenses added
or more
sentences as
result
(“an
er”); Commentary
§to
aggre-
8C3.1
that are
convictions
crimes
violence
gate maximum authorized
fíne
single
counted as a
sentence.” U.S.S.G.
Here,
$1,500,000”).
the sentences to be
added).
(emphasis
4A1.1 cmt. n. 5
Sec-
aggregated
quantitative aspect
have a
4Al.l(e) applies only
tion
if the
sen-
(their lengths),
qualitative aspect
and a
qualifying
tence involves two or more
(whether
the conviction is for violent
crimes,
single qualifying
not where a
crime
crime). Aggregation
quantitative
aggregated
non-qualifying
is
with
crimes.
lengths
simple
Aggregation
is
addition.
(“In-
app. C, amendment 709
aspects of
qualitative
violent and non-
may
a single
stances
arise which
sen-
violent crimes
unclear. A court
is
could
multiple prior
tence comprises
sentences
classify
aggregate
sentence as from a
case,
for crimes of
violence.
such
component
crime of violence if either
sen-
4Al.l(f)
apply.”).
will
(consistent
tence
for a crime of violence
I
relying
realize the court is
on dicta in
view). Or,
government’s
with the
a court
(Subsection
King. King,