United States v. Brooks , 732 F.3d 148 ( 2013 )

12-4261-cr
United States v. Brooks
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_____________________
August Term, 2013
(Argued: September 24, 2013 Decided: October 16, 2013)
Docket No. 12-4261-cr
_____________________
UNITED STATES,
Appellee,
-v.-
DAREN A. BROOKS, AKA DAREN BROOKS,
Defendant-Appellant.
_______________________
Before:
LEVAL, HALL, and LOHIER, Circuit Judges.
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In sentencing Defendant-Appellant Daren Brooks, the district court applied a prior edition
of the United States Sentencing Guidelines, and declined to apply subsequent Guidelines
amendments that reduced Brooks’s base offense level. The court reasoned that the applicable
Guidelines range under the prior edition of the Guidelines was lower than it was under the then-
current edition, and that the amendments at issue—Amendments 748 and 750—were substantive
rather than clarifying under U.S.S.G. § 1B1.11(b)(2), and thus could not be applied to reduce
Brooks’s base offense level. Because we agree that Amendments 748 and 750 are substantive rather
than clarifying, we AFFIRM the judgment of the district court.
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Mark D. Hosken (Jay S. Ovisiovitch, on the brief), Federal Public Defender’s Office,
Western District of New York, Rochester, NY, for Defendant-Appellant.
Monica J. Richards, Joseph J. Karaszewski, Assistant United States Attorneys, for
William J. Hochul, Jr., United States Attorney for the Western District of New York,
Buffalo, NY, for Appellee.
_______________________
PER CURIAM:
In June 2010, Defendant-Appellant Daren Brooks pled guilty to possessing with intent to
distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). In
imposing a Guidelines sentence of 300 months’ imprisonment in October 2012, the district court
(Charles J. Siragusa, Judge) applied the edition of the United States Sentencing Guidelines (the
“Guidelines”) that was in effect at the time that Brooks committed the offense, without applying
subsequent intervening Guidelines amendments—Amendments 748 and 750—that reduced
Brooks’s base offense level calculation. The court determined that, despite the amendments at issue,
Brooks’s total offense level and Guidelines range were lower under the prior (2008) edition of the
Guidelines than they were under the then-current 2011 edition, as the latter edition contained certain
new specific offense characteristic enhancements, separate from the base offense level calculation,
that applied to the offense committed by Brooks. The court further determined that it could not
construe the 2008 edition of the Guidelines as entitling Brooks to a reduction in offense level based
on the subsequent amendments at issue, because those amendments are substantive rather than
clarifying. Brooks challenges the latter determination on appeal. We agree with the district court
that Amendments 748 and 750 were substantive rather than clarifying under U.S.S.G. § 1B1.11(b)(2).
We therefore AFFIRM the judgment.
Generally, sentencing courts are required to apply the Guidelines Manual in effect on the
date that the defendant is sentenced. See 18 U.S.C. § 3553(a)(4)(A)(ii); U.S.S.G. § 1B1.11(a). If,
however, “the court determines that use of the Guidelines Manual in effect on the date that the
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defendant is sentenced would violate the ex post facto clause of the United States Constitution, the
court shall use the Guidelines Manual in effect on the date that the offense of conviction was
committed.” U.S.S.G. § 1B1.11(b)(1). Once the appropriate edition of the Guidelines has been
selected, the sentencing court is generally required to apply that edition in its entirety. See id.
§ 1B1.11(b)(2).
As an exception to the above rule, however, “if a court applies an earlier edition of the
Guidelines Manual, the court shall consider subsequent amendments, to the extent that such
amendments are clarifying rather than substantive changes.” Id.; see also United States v. Kim, 193 F.3d
567, 578 (2d Cir. 1999) (“A defendant sentenced under one version of the Guidelines may . . . be
given the benefit of a later revision if the revision represents not a substantive change but merely a
clarification of the Sentencing Commission’s prior intent.”). “While there are no absolutely clear
lines of demarcation between a substantive and clarifying amendment,” the following are “important
factors” in the relevant inquiry: “(1) the language of the amendment; (2) its purpose and effect; and
(3) whether the guideline and commentary in effect at the time of sentencing is consistent with the
amended sentencing manual.” United States v. Sabbeth, 277 F.3d 94, 97-98 (2d Cir. 2002) (internal
quotation marks omitted).
The Fair Sentencing Act of 2010 (“FSA”) increased the quantities of crack cocaine required
to trigger the mandatory minimum sentences set forth under 21 U.S.C. § 841(b). See Pub. L. No
111–220, §§ 1–2, 124 Stat. 2372, 2372 (2010). The FSA also authorized the Sentencing Commission
to “make such conforming amendments to the Federal sentencing guidelines as the Commission
determines necessary to achieve consistency with other guidelines provisions and applicable law.”
Id. § 8, 124 Stat. at 2374. Acting under this authority, the Commission enacted Amendment 748,
which modified the Drug Quantity Table under U.S.S.G. § 2D1.1(c) by temporarily reducing the
base offense levels for certain crack cocaine offenses in conformity with the mandatory minimum
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penalties set forth in the FSA. See U.S.S.G. App. C, Amend. 748 (2011); see also id., Reason for
Amendment (“To account for the[ FSA’s] statutory changes, [Amendment 748] conforms the
guideline penalty structure for crack cocaine offenses to the approach followed for other drugs, i.e.,
the base offense levels for crack cocaine are set in the Drug Quantity Table so that the statutory
minimum penalties correspond to levels 26 and 32.”). The Commission subsequently enacted
Amendment 750, which made Amendment 748 permanent. See U.S.S.G. App. C, Amend. 750
(2011).
Here, the parties have not disputed the district court’s determination that the 2008 edition of
the Guidelines, which was in effect at the time that Brooks committed the offense, yields a lower
Guidelines range than the 2011 edition, which was in effect at sentencing. With this in mind, we
hold that the district court correctly applied the 2008 edition in its entirety, without giving Brooks
the benefit of Amendments 748 and 750, which were substantive rather than clarifying. See U.S.S.G.
§ 1B1.11(b)(2). By reducing the base offense levels for certain crack cocaine offenses, Amendments
748 and 750 plainly effected a substantive change in the law rather than merely clarified the
Commission’s prior intent. Cf. United States v. Amico, 573 F.3d 150, 150-51 (2d Cir. 2009) (per
curiam) (holding that a 2001 Guidelines amendment that, inter alia, decreased an enhancement
relevant to fraud offenses from four to two levels was substantive rather than clarifying).
Arguing for a contrary conclusion, Brooks asserts that Amendments 748 and 750 were
merely clarifying because they “simply implemented [the FSA’s directive] that required the
Sentencing Commission to promulgate the Guidelines in accordance with the FSA,” and because
“[a]ny substantive changes to the law were made by Congress in its creation of the FSA.”
Appellant’s Br. at 19-21. Without more, however, the fact that a Guidelines amendment is
implemented pursuant to a congressional directive has no bearing on whether it is substantive or
clarifying. Brooks is correct that the FSA in 2010 did make substantive changes to the statutory
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penalties applicable to crack cocaine offenses. He is also correct that Amendments 748 and 750
made changes in offense levels to conform to the 2010 statute. The purpose of these substantive
changes was to conform the Guidelines to Congress’s 2010 directives, and not to clarify the meaning
of the 2008 Guidelines manual. Brooks’s arguments are unavailing, and the district court properly
declined to apply the 2008 edition of the Guidelines in combination with Amendments 748 and 750.
Finally, we reject Brooks’s contention that his 300-month within-Guidelines sentence is
substantively unreasonable, as he has not identified a basis for concluding that this sentence was
outside “the range of permissible decisions.” See United States v. Cavera, 550 F.3d 180, 189 (2d Cir.
2008) (en banc).
For the foregoing reasons, the district court’s judgment is AFFIRMED.
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