*1 Barnhart, See Gutierrez Cir.2001) (“a clearly objec- stated eliminate financial EAJA]
tive is to [of
disincentives to. those who would defend unjustified action
against governmental thereby to deter the unreasonable ex- authority”). If governmental
ercise of properly
Commissioner had considered evidence at the ini-
and evaluated Lewis’s
tial not have hearing, Lewis would been
required pay attorneys’ fees in order to
successfully challenge the Commissioner’s
error in district court. As we said in
Flores, hardly inequitable award “[i]t
attorney’s Secretary fees where the com-
mits errors that are not procedural ‘sub- merely
stantially justified.’ compel We Secretary obligation to abide her properly
consider the evidence before de- Flores,
nying a ...” claim
n. 10. America,
UNITED STATES of
Plaintiff-Appellee,
Larry Wayne THOMPSON; Robert Naus,
John Defendants-
Appellants. 00-5206,
Nos. 00-5237. of Appeals, States Court
Tenth Circuit. 14, 2002.
Feb. *2 Schisler, target. Assistant Federal Public South Carolina Hundreds of visual Jack Knorr, Federal Pub- (Stephen depictions engaged sexually Defender J. of minors Defender, brief), him the lic with on Office explicit activity Thomp- were found on Mr. Defender, Tulsa, OK, of the Federal Public depictions son’s with more such Defendants-Appellants. for compact on disks and Not- floppy disks. withstanding the hundreds of Assistant Kirkpatrick, Neal B. prohibited material was contained on fewer (Thomas Woodward, Attorney Scott disks, than ten computer compact hard Attorney, with him on the United States disks, 20, 2000, floppy disks. brief), Tulsa, OK, April On Plaintiff-Appellee. for Thompson guilty eight Mr. pled counts SEYMOUR, Judge, Before Circuit 2252A(a)(5)(B). § violating 18 U.S.C. McWILLIAMS, Judge, Senior Circuit thirty He was sentenced to impris- months KELLY, Judge. Circuit part onment based two-level en- 2G2.4(b)(2) § hancement under U.S.S.G. KELLY, JR., Judge. Circuit PAUL possessing for ten or more files This decision two cases consolidates containing pornography. child from the Northern District of Oklahoma. Wayne Larry Thompson and Robert John possession Mr. was found in Naus their appeal knowingly Naus sеntences pornography child as well. Western Un “any magazine, possessing periodi- ion obtained records customs showed cal, disk, film, videotape, computer persons that Mr. Naus sent $100 other material that contains an of Moscow, trafficking who were Russia pornography....” child U.S.C. pornography. During child an initial 2252A(a)(5)(B). § The sole on ap- issue search, Mr. Naus that he indicated be peal is whether the district court erred approximately lieved he had downloaded sentencing by applying a two-level en- child, images Four pornography. possession hancement for of ten or more images disks were discovered with 136 § pursuant “items” engaged sexually explicit con children Guidelines, Sentencing 1998 United States children, duct other or both. with adults provides: which “If the offense involved computer sys After seizure of Mr. Naus’s books, possessing magazines, ten or more disks, floppy agent tem and an discovered films, tapes, video or other pornog an additional three of child items, containing depiction a visual involv- raphy super floppy on another disk. Two minor, ing exploitation the sexual of a (which data, can store 120 MB of disks 2by crease levels.” United States Sen- regular- floppy contrast to a disk that can Manual, Commission, tencing Guidelines MB) 1.44 72 im store contained 284 and 2G2.4(b)(2) (Nov.1998). § The district Thus, ages pornography. of child 495 vi interpreted court the term “items” to in- engaged minors in sexu depictions sual clude files on the disks rather ally conduct found on five explicit were than the disks themselves. We affirm. floppy “super floppy” disks and two disks.
Background 26, 2000, On June Mr. Naus entered guilty plea violating to one count of Thompson possession Mr. was found in 2252A(a)(5)(B). He was sentenced to pornography of child after a South Car- as a twenty-seven imprisonment months agent olina customs informed Oklahoma City Mr. result of a two-level enhancement under agent Thompson customs 2G2.4(b)(2). Thompson pornography images had sent 17 child to a Both Mr. books, also to three “ten or more magazines, periodi- Mr. Naus werе sentenced years following impris- cals, items, release supervised video or other tapes, Messrs. appeal, Thompson onment. On depiction involving contend neither of them Naus exploitation sexual of a minor.” U.S.S.G. pre- more than ten “items” as possessed 2G2.4(b)(2). *3 2G2.4(b)(2), §by if that term is scribed While is true the two are to refer to the media on which understood largely symmetrical, “computer disk” pornography of child were stored statute, stands alone in the does “items” as gov- rather than the files themselves. The guideline. Although the issue is one 2G2.4(b)(2) responds § ernment circuit,1 impression of first two computer graphics each file maintained on considering courts conviсtions under drive, disk, floppy hard or 2252A(a)(5)(B) § have determined that the storage sepa- other medium constitutes a 2G2.4(b)(2) § “items” in term means com
rate “item.”
puter
not the entire disk. See Unit
Discussion
1285,
v. Harper,
ed States
218 F.3d
1287
(11th Cir.2000)
curiam);
(per
United
We review de novo a district
Perreault,
1133,
States v.
195 F.3d
1134-35
legal interpretation
guide
court’s
(9th Cir.1999).
courts
Other
have reached
Gacnik,
lines.
States v.
50 F.3d
United
the same conclusion under a similar stat
848, 852
guidelines
Fellows,
ute. United States v.
157 F.3d
interpreted
though they
as
were a
(9th Cir.1998) (conviction
1197, 1200-02
rule,
ordinary
statute or court
with
rules
2252(a)(4)(B));
§
under
United States v.
statutory
construction. United States v.
Demerritt,
(2d
138,
196 F.3d
141-42
Cir.
(10th
1124,
Tagore, 158 F.3d
1128
Cir.
1999) (same);
Hall,
v.
States
1998).
Adopting
interpretation
narrower
(7th
988,
Cir.1998) (same);
997-99
precedent:
is аt odds with our
Wind,
United States v.
apply
While we
rule of strict con
Cir.1997)
(conviction
under
statutes,
struction to criminal
2252(a)(4)).
Guidelines,
to the
extension
that does
not mean the Guidelines must be given Merely because the statute includes the
their
possible meaning.
narrowest
term “disk” and the
includes the
Rather, the rule of strict construction is
term
necessarily
“items” does not
mean
if
given
satisfied
the words are
their- fair
equated.
the two must be
As the
meaning in accord with the
in
manifest
Perreault,
panel
observed
the statute
tent of the lawmakers.
may
knowing
criminalize
possession of a
Reaves,
United States v.
disk,
while the
ad-
(10th Cir.2001) (quotations
cita-
culpable
dresses
conduct
in connection
omitted).
tions
disk,
with that possession of the
here
noted,
2252A(5)(B)
Perreault,
statute,
number of
As
flies on the disks.
speaks
knowing
According
say
“[t]o
upon
based
the fortuitousness of the stor-
graphic image
file is the container hold-
computers,
age media when
came
ing
equivalent
would be the
even in 1992 when the
was
saying
square
of cardboard that
Demerritt,
at 141-
adopted.
See
up
makes
the Polaroid is the container
Graphic images
usually conveyed
142.
piece
even the
of can-
photograph, or
file;
by
they
how
are stored varies
file
upon
painted
vas
which DaVinci
was mere-
user
user. The dissent contends
from
ly
Aplts.
the container for the Mona Lisa.”
interpretation
that our
argument
Br. at 15.
think this
under-
We
late-1990’s,
in the
which would be correct
file when it
importance
estimates the
of a
Modem
unimaginable
comes to
A file is a collection
computers.
(such
access,
numbers,
systems
text,
speeds,
operating
internet
of information
video)
improved
par-
storage capability
and
have all
graphics, sоund or
stored on
(b)(2),
storage,
the basic unit of
2. For
of subsection
purposes
but
since
(A)
use,
depiction;
contains a visual
transmissability
portability
—the
(B)
magnetic, optical,
is stored on a
noting
It is also worth
file—remains.
electronic,
digital,
storage
other
other
rightly
have
our Fourth Amendment cases
device,
medium or
shall be considered to
concentrated
be one item.
Walser,
See,
e.g.,
files.
United States
If
large
the offense involved a
number
(10th Cir.2001) (“The
upward
of visual
depictions,
depar-
and,
age
advent
the electronic
as we see
warranted,
may
regardless
ture
be
development
desktop
in this
(b)(2) applies.
whether subsection
computers
equivа-
that are able to hold the
(n.2) (Nov.2000).
2G2.4,
cmt
information,
library’s
go
lent of a
worth of
categories of con-
beyond the established
applicable,
Whether the amendment
however,
Analogies
doctrine.
to other
depends
clarify-
stitutional
on whether it is
ing
substantive.
objects, such as dressers or file
See U.S.S.G.
physical
1B1.11(b)(2) (Nov.1998).
cabinets,
Amendment
not
inform the situations
do
often
1, 2000,
which
effect
took
November
judges
applying
we now face as
when
plea agreement
sentencing
after the
law.”); United
search and seizure
court,
merely
the district
clarifies the
Carey, 172 F.3d
*5
guideline applied by the district court.
sum,
In
after our
and those of
lBl.ll(b)(2),
Under section
a court “shall
cirсuits,
our
we are not left with a
sister
amendments,
subsequent
consider
to the
scope
reasonable doubt about
extent that such
clarify-
amendments are
guideline when it comes to this this situa-
than
ing
changes.”
rather
substantive
See
States,
tion.
Moskal v. United
498
See
Alvarez-Pineda,
United States v.
258 F.3d
108,
461,
112
111 S.Ct.
L.Ed.2d
U.S.
(10th Cir.2001).
1230, 1236
As to the rea-
(1990).
lenity
449
The rule of
is
rule of
amendment,
son for the
the Commission
resort,
for when a
last
reserved
wrote:
grievous ambiguity
suffers from
or uncer-
[T]he amendment
clarifies the
States,
tainty. Chapman v. United
(b)(2)
of the term “item” in subsection
453, 463,
111 S.Ct.
114 L.Ed.2d
U.S.
§ 2G2.4.... The
adopts
amendment
(1991); Tagore,
guideline; and the authors character- picture judicial process [t]he ized it clarifying. Applying as these fac- emerges fairly is one of activity. routine in analyzing tors the amendment to section judge presented ... is with a fact 2G2.4(b)(2), we conclude that the amend- situation to which a ready legislative merely ment clarifying. response The amend- readily will be found all ment affirmed the conclusions of the four except extraordinary case. His previously circuits had ruled on merely function is to find right legis- the amendment com- provision, revised lative couple it with fact mentary, situation, and the Commission character- and bless the solution that is Thus, ized the amendment clarifying. automatically more or less produced may the amendment applied be retroac- from the union.
tively to the Gigley, Defendants. See HeNRy MeRryman, John The Civil Law F.3d at 506 n. 3. (2d ed.1985). TraditioN rea-,
AFFIRMED. In such a system, judges have less n son to interpret By adopting statutes. *6 SEYMOUR, Judge, dissenting. Circuit sentencing guideline system, legislative the branch has much join responsi- I am removed of this majority’s opin- unable to the bility independent judges from in ion. I am not fаvor of persuaded the United body that can incorporate policy new Sentencing States Guidelines Commission empirical and concerns and research while Congress the term intended “other maintaining uniformity in items” to include sentences. computer files rather intro, 1, A, U.S.S.G. Ch. Pt. comment at 4. Furthermore, than disks. I be- Accordingly, sentencing vagueness guidelines lieve of U.S.S.G. (almost annual) regular reissued on a ba- requires ap- least that we Id. at 1-4. If ply present sis. new situations lenity the rule of in this case. United themselves, Commission, technology changes, if it States is Sentencing Guidelines (Nov.1998). prerogative now the Sentencing Manual With all respect, due I Guidelines Commission to revise and dissеnt. guidelines
amend the to reflect such I then, changes. sentencing purposes, For judges present should not read circum- Congress When Sentencing created the past guidelines. stances into Commission, Guidelines it fundamentally judicial altered the legis- nature of the If by sentencing we are to be bound in determining punish- are, lative roles criminal guidelines, acknowledge as I we then ment. promulgation Prior to we should also exercise in caution our lines, them, courts had wide in assigning reading being latitude interpret careful to punishments people for narrowly. convicted of them The Commission has the 1999) (same). guidelines and amend with One circuit had followed
power to revisе intro, 1, A, in construing guideline light ease. Ch. Pt. Fellows relative U.S.S.6. 2252(a)(4)(b). If 1-2. we offer a narrower of 18 U.S.C. See comment at United Demerritt, (2d than the reading ambiguous provisions Cir.1999). wishes, the can Commission Commission intent, by easily make clear its did by I am not convinced the Ninth Cir- amending guideline the case now cuit’s cursory opinions conclusion and the before us. it, particu- of the courts that have followed larly when considered in the context of the II Thompson statute to which Mr. and Mr. guideline interpret pled guilty. The we here was Naus The advent of the Inter- net, originally adopted provides: 1992 and and its use as a of distributing means possessing “If the offense involved ten or pornography, many child has forced courts books, magazines, periodicals, parse ambiguous meanings more of stat- items, tapes, or other prior technology video utes written to the boom depiction involving exploi- the sexual of the decade. past Statutes written and minor, were, 2by early tation of a increase levels.” amended in the by 1990s 2G2.4(b)(2) (Nov.1998) decade, (empha- longer end of that no as clear. As added). majority result, sis believes that the the meaning of the meaning of “other items” in the plain requires application not quite plain. readily adopts It statutory context is canons of construction. reasoning the Ninth Circuit’s Fellows,
States v. 1200-02 Ill (9th Cir.1998). However, the Ninth Cir- Canons of Constructiоn cuit, majority extension the inter- here, pretation reads A. “other items” Lists and other associated terms 1990s, technological context late plain meaning Because there is no reading thus into it a not was 2G2.4(b)(2), “item” in section we must re- imaginable earlier that decade when the statutory sort to the canons of construction adopted. ambiguity to resolve the language. Fellows, the Ninth process: Circuit held Two aids assist us in this nosci- *7 meaning plain ejusdem the term “item” in tur a sociis generis. and The computer section included files. first that legislative states when “the clear, Id. at 1202. The court’s meaning turned tent or of a statute is not on computer “sep the fact that a user the meaning may can of doubtful words be view, delete, arately copy, or by transmit each determined reference to their relation- file,” graphics discrete ship id. at and that with other associated words and graphics “a file can store 2A phrases.” one or more J. Singer, Norman Suther- (5th Statutory depictions.” § Id. Prior to the deci CONSTRUCTION 47.16 land ed.1992). in states, sion the instant two gen- circuits had The second “Where relied on Fellows in ruling specific the issue eral words follow in words a statu- enumeration, now before us. tory See United States v. Har general words are (11th Cir.2000) per, 218 F.3d objects construed to only embrace similar 2G2.4(b) (construing section in light objects of 18 nature to thosе enumerated 2252A(a)(5)(B)); § U.S.C. the preceding specific words.” Id. at Perreault, Cir. 47.17. computer per multiple whether a disk contains question photographs,
The adver- tisements, stories, computer yet or a file is an item and discrete news any sort in nature” to those items listed. we would not consider an individual “similar news- an parties paper page guideline. The this case have focused on “item” under the guideline Dauray, the term “contain” used as See United States v. (2d Cir.2000). qualify majority
it modifies the term “item.” To
as 262
The
counters
“item,”
they argue,
thing
ques-
key
that a
distinction lies in the fact that
qualify
possess
must
as a “container” of one
files
a
computer
port-
tion
“world-wide
ability
trаnsmissibility.” Maj.
sort or another.
and
op. at
is,
course,
1091. This
today.
true —
problem
The central
rests on which
However,
technology
that makes such
file,
thing,
computer
computer
a
disk or a
portability
possible today
and transmission
“books, magazines, periodicals,
is most like
was either
primordial
non-existent or in a
tapes.”
video
at
passed.1
state
the time the
2G2.4(b)(2).
The
all
items listed
consist
of a
of images,
Thompson
argue
of collections
combination
Messrs.
and Naus
text,
a
Unfortunately,
thing
physically
sound.
container is a
stores
and/or
cyberspace
it
analogue
graphic images, just
to the within
aas
book,
magazine
videotape
class of items listed
is not
or
contain im-
at all
The
ages.
argument
obvious.
court
Fellows rea-
Their
makes sense as
soned,
commonality
“The
between the
Computer
well.
disks are used as contain-
specifically
‘items’
enumerated
the sec-
ers for discrete
in the form of data.
they
Computer
tion is that
are all discrete containers
data cannot exist without a disk
depictions
way
for visual
in much
capable
being sepa-
the same
that a video
rately manipulated
tape
and distributed.” Fel-
cannot exist without the
on which it is
lows,
file,
Similarly,
By
logic,
page
disagreement
of a
here is understanda-
magazine,
Dauray,
could be
215 F.3d at
periodical
consid- ble.
container, contrary
in a
at-
engaged
ered
to the intent
Second Circuit
similar
all,
guideline.
tempt
interpret
manifested in the
After
page
piece
paper
or individual
can be word “matter” as used in 18 U.S.C.
2252(a)(4)(B),
“compile”
multiple
used
“store”
vi-
which
the time made
knowingly possess
A
a crime to
“3 or more
depictions.
page
newspa-
sual
from
*8
technology
floppy
1. In
while hard disk
existed
disks were the most common remova-
anywhere
Mega-
that could store
between 5
personal
storage
computers at
ble
media in
(MB)
(GB)
data,
bytes
Gigabytes
and 3
time,
they
that
and
could hold a maximum of
Philip E.
Margolis,
Random House
Personal
1.44 MB of data.
Margolis,
Comput-
Personal
(1991),
due to elec-
Computer Dictionary
at 187-88. 1 MB holds the
Dictionary
er
limitations,
system
personal
tronic
few
and
text,
equivalent
pages
of 500
of written
much
computers
support
larger
could
hard drives
graphics.
less in the case of
Robin Williams &
than 528
Notes about the Cost
MB. Historical
Jargon:
Cummings,
Dictionary
Steve
An Informal
Storage Space,
of Hard Drive
available at
65-55,
(1993).
Computer
Terms
http://winv.alts.net/nsl625/winchest.html.
3'k.
films,
Lerach,
26, 36,
books,
Hynes
video- Bershad
&
523 U.S.
magazines,
(1998).
applied rule of lenity. Id. at 264-65. 2. Statutory Structure Vig, United States v. on the con- trary, Eighth
“[A] statute is to be considered in all
Circuit held “other mat-
*9
parts
which,
its
construing any
“simply something
when
one of
ter” to mean
minimum,
them.”
Milberg
capable
containing
Lexecon Inc. v.
Weiss
must be
tion,
depiction.”
distribution and
visual
transmission of visual
Cir.1999).
continued,
con-
images
depictions,
The cоurt
“To
particularly
S.Rep.
clude,
that a
argue,
through
as defendants
hard
the use of computers.”
No.
(1996).
computer equivalent
104-358,
above,
of a
drive is
at 7
weAs
noted
etc.,
book, magazine, periodical,
2252A(a)(5)(B),
would re-
section
the statute to which
in
sult
the absurd scenario where an indi-
pled guilty,
defendants here
criminalizes
possesses
vidual who
three books with one
knowing possession
“any
mag-
statute,
apiece
depiction
violates the
azine,
film,
periodical,
videotape, computer
images
an individual with hundreds of
but
disk,
any
other material that contains
on a hard drive does not.” Id. at 448.
(em-
...”
image
pornography
of child
dissenting judge
The
asserted that
аdded).
2252(a)(4)(B),
phasis
Section
majority’s
similarly
led to a
ab-
conclusion
hand,
computer
the other
does not include
pos-
surd result where “someone who
books,
in
maga-
disk
its list of “1 or more
containing
pro-
sessed three books
one
zines,
videotapes, or oth-
image
scribed
each would be in violation er matter.”2
statute,
pos-
while someone who
Sentencing
The
Guidelines Manual di-
sessed a
hun-
judges to
rects
use section 2G2.2 or 2G2.4
dreds of such
would not be.” Id.
to sentence those convicted under 18
(Arnold, M., J.,
at 451
dissenting) (empha-
U.S.S.G.,
§ 2252A.
A at
App.
U.S.C.
433.
added).
concluded,
sis
His dissent
Only two cases have construed
2G2
section
Is a
library?
hard drive like a book or a
.4(b)(2)
§
light
in
Harper,
2252A. See
significant
Is it
can
files
1286; Perreault,
reasonable alternative constructions is § ambiguous Where 18 U.S.C. 2252 is right one. comput- to whether “other matter” means Id. er disks or section 2252A is clear, crystal making it a crime to “know-
The statute under which Messrs. disk, ingly any ... Thompson possesses charged Naus were does ambiguity. not suffer from other material thаt contains an such Pornography pornography....” Child Protection Act of of child 18 U.S.C. 2252A(a)(5)(B) added). 2252A, § § passed supple- (emphasis 18 U.S.C. This subject by filling ment current federal statutes deals with much the same statute 2252(a)(4)(B), § gaps by previously existing legislation left matter as but it was writ- § age language such as 18 U.S.C. enacted ten the internet and its Judiciary Report provides understanding The Senate Committee assistance in said, legislation ambiguous “This is needed due to intended terms technological recording, advances such as “matter” and “items” similar creation, alteration, production, reproduc- statutes. Unlike 2252 and the 2252(a)(4)(B) 105-314, 203(a)(1) (1998). 2. 18 U.S.C. was amended in Pub.L. change 1998 to "3 or more” to “1 or more.” *10 1098 computer analog in includes the 2252A IV “books, magazines, periodicals the list Finally, majority contends the issue 1996, In when “computer ...” as disks.” by this case is answered an amendment software and hardware technolo- computer commentary to the to section 2G2.4. much to point advanced to a closer gy had adopted Amendment 592 the Fellows §of today, spe- the framers 2252A that of of the at terpretation section issue. The punish people posses- for cifically chose commentary to the amendment asserts disks child computer sion of merely clarifying majori- that it is and the possession than for pornography, rather ty accepts this I am not сharacterization. Thus, Congress when computer files. persuaded it is so clear. The Commis- conception its most recent of what gave us sion’s characterization is entitled to some “other matter” or “other would constitute deference but it is dispositive. not United disks, items,” computer it settled on rather (10th Frederick, States v. 897 F.2d 494 thereby I am convinced that than files.3 Cir.1990). Kissick, In United States v. as used in the term “other items” (10th Cir.1995), F.3d this court 2G2.4(b)(2) intended to include com- laid out factors which tend to show that an disks, computer rather than files.4 puter purposes amendment clarification I that “other items” as While would hold rather than The majority substantive. 2G2.4(b)(2) used in section includes com- rightly points out thаt the three Kissick files, at puter computer disks but not factors are satisfied here. The Kissick
very majority should acknowl- least necessarily inquiry, factors do not end edge changes technology and however, especially a case such as this. statutory made the language have ambiguous require applica- analysis guideline line and thus lenity. light tion of the The rule of underlying rule of statute convic- tion, lenity requires interpret ambigu- plain which is on courts its face its cover- statutes, disks, sentencing age computer ous including convinces me that guidelines, ambiguous pre- favor of criminal defendants. term “items” in the Gay, comput- United States v. 1232 amendment incorporates (10th Cir.2001). the rule While is to be er disks and not files. Conse- applied “grievous only ambigui- quently, cases of the 2000 amendment to U.S.S.G. Onheiber, ty,” v. 173 F.3d represents United States substantive Cir.1999), ambiguity change By to the subsection. amending grievous possible incorporate here is as the two inter- pretations radically greatly expands punish- render different re- amendment sentencing purposes. person sults for ment for a convicted under place legislative agree key 3. At no in the record could I not more. There exists a distinc- language Carey find debate over whether the tion between and Walser and the case us, should be files. amended to include now before however. Thosе cases inter-
pret the Fourth and it is Amendment within our bailiwick to construe the Constitution in majority 4. The also maintains that our deci- light changing Carey "rightly circumstances. For reasons sions in Walser and have con- beginning opinion, stated centrated” at the of this howev- their files er, sentencing Maj. op. rather than such is not case with the disks. Walser, guidelines, 1091. See United which are to be amended and re- States (10th Cir.2001); Carey, Congress. vised the Commission and We merely narrowly interpret apply I could them. *11 Mondaine, in computer technology past States v. curred in the 2252A. See United (10th Cir.1992) 939, (finding decade, 956 F.2d the above factors convince me that it an amendment substantive because incorrect, majority’s opinion only is not range of violations counta broadened oversteps judiciary’s but the bounds of the sentence). calculating ble in See also responsibility under the current sentenc- Cianscewski, 74, States v. 894 F.2d United ing regime. job It is not our broadly (3d Cir.1990)(“We suggest n. do not guidelines construe the to reflect new tech- Commission, Sentencing that de event, nological In any situations. the rule in claring changes substantive lenity requires us to construe the am- clarifications, merely can amend tended biguous guideline in favor of defendants. retroactively.”); guidelines United reasons, respectfully For these I DIS- 1101, Washington, States v. SENT. (9th Cir.1995)(“Regardless of the Sentenc intent, ing Commission’s stated an аmend apply
ment does not to crimes committed if changes
before its effective date law.”).
substantive say Sentencing
This is not to authority
Commission lacks the to make guidelines.
such
amendment
Its
review,
promulgation,
role
and revi-
McBRIDE,
Elizabeth
Plaintiff-
guidelines
sion of the
is well established.
Appellant,
States,
See Neal
516 U.S.
(1996).
116 S.Ct.
A petitioner advantage is entitled to the Feb. receiving the sentence he would have initially
received had the Commission unambiguous provision.
drafted an It is punish
unfair defendant clarity, especially
Commission’s lack of acknowledges
when Commission ambiguity.
corrects the States,
Jones v. United
Y
Considering ambiguity major changes
line and the oc- that have