United States v. McGee ( 2009 )


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  • 08-1619-cr
    USA v. McGee
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    _______________________________
    August Term, 2008
    (Argued: December 10, 2008                                          Decided: January 23, 2009)
    Docket No. 08-1619-cr
    _______________________________
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    DARIUS DURAND McGEE,
    Defendant-Appellant.
    ____________________________________
    Before: POOLER, RAGGI, and LIVINGSTON, Circuit Judges.
    Appeal from a March 27, 2008 judgment of the United States District Court for the
    District of Connecticut (Hall, J.) denying defendant-appellant Darius McGee’s motion for a
    reduced sentence pursuant to 
    18 U.S.C. § 3582
    (c)(2) and the so-called crack amendments.
    VACATED AND REMANDED.
    Appearing for Appellee:      SANDRA S. GLOVER , Assistant United States Attorney
    (Michael J. Gustafson, Assistant United States Attorney, on
    the brief) for Nora R. Dannehy, Acting United States
    Attorney, District of Connecticut, New Haven, CT.
    Appearing for Appellant:     ROBERT J. SULLIVAN , Westport, CT.
    1
    PER CURIAM:
    In this decision, we address the narrow question of whether a defendant such as appellant
    Darius McGee, who at sentencing was designated a career offender but granted a departure so
    that he was ultimately sentenced based on the crack cocaine (cocaine base) guidelines, is eligible
    for a reduced sentence pursuant to the so-called crack amendments. As we recently discussed in
    United States v. Williams, --F.3d--, 
    2009 WL 32564
    , at *2 (2d Cir. 2009), these amendments
    came about on November 1, 2007, when the United States Sentencing Commission promulgated
    Amendment 706, which amended the Drug Quantity Table in United States Sentencing
    Guidelines Section 2D1.1(c). U.S.S.G. Supp. to App. C, amend. 706 (2008). The effect of
    Amendment 706 is to provide a two-level reduction in base offense levels for crack cocaine
    offenses. See id.1
    McGee contends that he is eligible for this two-level reduction because, at sentencing, the
    district court, though designating him a career offender, see U.S.S.G. § 4B1.1, ultimately based
    his sentence on the crack cocaine guidelines after downwardly departing based on a finding that
    the career offender classification overrepresented his criminal history, see U.S.S.G. § 4A1.3(b).
    Thus, applying the 2001 Sentencing Guidelines, the district court sentenced McGee to 115
    months based on a post-departure sentencing range that was calculated as follows: a base offense
    level of twenty-six (the level corresponding to at least five grams but less than twenty grams of
    crack cocaine) under U.S.S.G. § 2D1.1(c)(7), minus three levels for acceptance of responsibility
    under U.S.S.G. § 3E1.1, resulting in a total offense level of twenty-three and criminal history
    1
    1    The Commission made this amendment retroactively applicable, effective as of March 3, 2008.
    2   See U.S.S.G. Supp. to App. C, amend. 713.
    2
    category of six, and consequently a sentencing range of ninety-two to 115 months imprisonment.
    McGee asserts that after applying Amendment 706 as well as the three-level reduction under
    U.S.S.G. § 3E1.1, his total offense level is now twenty-one and his sentencing range seventy-
    seven to ninety-six months. The district court rejected this argument. Noting that defendants
    sentenced as career offenders are unaffected by Amendment 706, the district court agreed with
    the government that McGee was ineligible for a reduced sentence because his pre-departure
    range, i.e., his career offender guideline range and not the crack cocaine guideline range, was the
    “applicable guideline range” affected by Amendment 706.
    We have jurisdiction under 
    28 U.S.C. § 1291
    , and though recognizing the issue to be a
    very close one, we hold that McGee is eligible for a reduced sentence, vacate the district court’s
    decision, and remand for reconsideration of McGee’s 
    18 U.S.C. § 3582
    (c)(2) motion for a
    reduced sentence.
    We review the district court’s interpretation of the statute and the Guidelines de novo.
    See Williams, 
    2009 WL 32564
    , at *3; United States v. Kerley, 
    544 F.3d 172
    , 179 (2d Cir. 2008).
    It is well established that “[a] district court may not generally modify a term of imprisonment
    once it has been imposed.” Cortorreal v. United States, 
    486 F.3d 742
    , 744 (2d Cir. 2007). One
    of the limited exceptions to this rule exists when the sentencing range under which the defendant
    was sentenced is subsequently lowered by the Sentencing Commission. Section 3582(c)(2)
    states:
    [I]n the case of a defendant who has been sentenced to a term of imprisonment
    based on a sentencing range that has subsequently been lowered by the Sentencing
    Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the
    Director of the Bureau of Prisons, or on its own motion, the court may reduce the
    term of imprisonment, after considering the factors set forth in section 3553(a) to
    3
    the extent that they are applicable, if such a reduction is consistent with applicable
    policy statements issued by the Sentencing Commission.
    
    18 U.S.C. § 3582
    (c)(2) (emphasis added).
    At the outset, we note that we are not presented with the question of whether a defendant
    who is sentenced as a career offender, but does not receive a downward departure, qualifies for a
    reduced sentence under the amendments. The consensus is that such a defendant would not. See
    United States v. Thomas, 
    524 F.3d 889
    , 890 (8th Cir. 2008) (per curiam); Sharkey, 543 F.3d at
    1239; Moore, 541 F.3d at 1327-28; see also United States v. Liddell, 
    543 F.3d 877
    , 882 n.3 (7th
    Cir. 2008) (stating same in dicta). Rather, the question we must answer is whether the fact that
    the district court granted a downward departure under U.S.S.G. § 4A1.3 from the career offender
    guideline range down to the crack guideline range, upon finding that the career offender status
    overstated defendant’s criminal history, renders McGee eligible for the two-level sentence
    reduction.
    From our review of the record, it is apparent that McGee was sentenced “based on” a
    sentencing guideline range that was subsequently lowered by the Sentencing Commission
    because the district court premised McGee’s ultimate sentence on the crack cocaine guidelines.
    Indeed, had the amendments been in place at the time of sentencing, it is likely that the district
    court would have given McGee a sentence within the now reduced guideline range of 77 to 96
    months. For, in granting the departure, the district court explicitly stated that it was departing
    from the career offender sentencing range “to the level that the defendant would have been in
    absent the career offender status calculation and consideration,” thereby accepting the
    government’s contention that the appropriate category for McGee was that into which he “would
    4
    have fallen absent the career offender effect upon his guideline calculation.”
    The government nevertheless objects to McGee’s claim of eligibility, stating as follows:
    (1) a court may reduce a sentence pursuant to 
    18 U.S.C. § 3582
    (c)(2) only “if such a reduction is
    consistent with applicable policy statements issued by the Sentencing Commission”; and (2)
    U.S.S.G. § 1B1.10, which is a policy statement, indicates that its reference to the “guideline
    range applicable to th[e] defendant” refers to the pre-departure (rather than post-departure)
    sentencing range. As relevant here, that policy statement provides that a reduction in a
    defendant’s sentence is not authorized where the amendment in question, in this case
    Amendment 706, “does not have the effect of lowering the defendant’s applicable guideline
    range.” Id. § 1B1.10(a)(2)(B). To assess whether a reduction is warranted, a district court is
    instructed to determine the Guidelines range “that would have been applicable to the defendant if
    the amendment(s) to the guidelines . . . had been in effect at the time the defendant was
    sentenced,” while leaving “all other guideline application decisions unaffected.” Id. §
    1B1.10(b)(1). And after stating the general rule 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,” id. § 1B1.10 (b)(2)(A), the district court is
    instructed that the following exception applies:
    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
    determined under subdivision (1) of this subsection may be appropriate. However,
    if the original term of imprisonment constituted a non-guideline sentence
    determined pursuant to 18 U.S.C. 3553(a) and United States v. Booker, 
    543 U.S. 220
     (2005), a further reduction generally would not be appropriate.
    
    Id.
     § 1B1.10(b)(2)(B).
    5
    Focusing on the language of the exception, the government argues that the policy
    statement treats the applicable guideline range as the pre-departure range, here the career
    offender guideline range which, as noted, courts have held is unaffected by Amendment 706.
    The government’s contentions are not without force, but we ultimately conclude, given that the
    policy statement is subject to different interpretations and taking account of case law as well as
    the purposes of the crack amendments, that the policy statement would permit a defendant whose
    post-departure sentence was, as in this case, explicitly based on the crack cocaine guidelines to
    request a reduced sentence pursuant to Amendment 706 and 18 U.S.C. 3582(c)(2).
    In our view, the exception in U.S.S.G. § 1B1.10(b)(2)(B), understood along with the
    general rule, can be read as simply instructing that a defendant may not receive a departure below
    the amended guideline range, except that a defendant who received a departure at sentencing may
    receive a comparable departure -- the one instance in which a reduced sentence can fall below the
    amended guideline range. It does not preclude the possibility that a defendant who was, even if
    by virtue of a departure, sentenced “based on” the crack guidelines would be eligible for a
    reduction. Since, from our reading of the sentencing transcript, the district court sentenced
    McGee based on the crack cocaine guidelines and would likely have considered a different
    sentence from the one imposed if the applicable crack guidelines had so provided, we think that a
    different reading would lend itself to excessive formalism. See Lee v. Weisman, 
    505 U.S. 577
    ,
    595 (1992) (“Law reaches past formalism.”); United States v. Baez, 
    349 F.3d 90
    , 93 (2d Cir.
    2003) (“[C]ourts should not elevate legalistic formalism over substance.”).
    Our recent decision in Williams permits this conclusion. There, we held that a defendant
    who committed a crack cocaine offense and whose sentence was subject to a statutory minimum
    6
    because of a prior drug conviction was not eligible for a new sentence under the revised
    Guidelines. This obtained even though the defendant received a downward departure for
    substantial assistance, see U.S.S.G. § 5K1.1 and 
    18 U.S.C. § 3553
    (e), that fell within the crack
    cocaine Guidelines range, because the Guidelines provision underlying the sentence ultimately
    imposed was not a provision affected by the subsequent amendment to the Guidelines. In so
    holding, we emphasized that “[t]here [was] no evidence that the Guidelines range calculated
    under U.S.S.G. § 2D1.1(c) played any role in the district court’s determination of his sentence,
    and the district court so found.” Williams, 
    2009 WL 32564
    , at *1. We went on to note that
    under United States v. Richardson, 
    521 F.3d 149
     (2d Cir. 2008), when the statutory minimum is
    the Guidelines sentence, the original crack cocaine Guidelines do not play a role in determining
    the extent of a substantial assistance departure.2 Thus, we allowed that a defendant whose post-
    departure sentence was in fact determined by the crack cocaine guidelines might be eligible for a
    reduced sentence.
    Indeed, this is the prevailing view. In Moore, the Eleventh Circuit though holding that
    the crack amendments do not apply to defendants sentenced as career offenders, went on to
    express approval, albeit in dicta, for the application of Amendment 706 in these circumstances.
    2
    1     We further stated that “[w]hen . . . the Guidelines sentence ends up as the statutory minimum,
    2   both the decision to depart and the maximum permissible extent of this departure below the
    3   statutory minimum may be based only on substantial assistance to the government and on no
    4   other mitigating considerations.” Williams, 
    2009 WL 32564
    , at *4 (quotation marks omitted). A
    5   departure under the career offender guidelines presents a somewhat different scenario. A
    6   downward departure is permitted where the court concludes that “a defendant’s criminal history
    7   category substantially over-represents the seriousness of the defendant’s criminal history or the
    8   likelihood that the defendant will commit further crimes.” U.S.S.G. § 4A1.3(6)(1). Put
    9   differently, a departure back down to the initially applicable crack cocaine guideline range
    10   accepts that a defendant does not fall within the heartland of the career offender guidelines.
    7
    541 F.3d at 1329-30. In doing so, the court recognized that Amendment 706 would be applicable
    where there was some “indication that the court based [the defendant’s] sentence on the guideline
    range that would have applied absent the career offender designation,” or was the “sentencing
    range relied upon by the district court in determining his sentence.” Id. at 1330. And, the
    overwhelming majority of district courts faced with this issue have also come to this seemingly
    commonsense conclusion,3 one that recognizes the underlying rationale for the amendments -- to
    address the “urgent and compelling” “problems associated with the 100-to-1 drug quantity ratio.”
    U.S.S.G. Supp. to App. C, amend. 706; see also id. amend. 713; Sentencing Guidelines for
    United States Courts, 
    72 Fed. Reg. 28571
    -28572 (2007).
    We acknowledge that U.S.S.G. § 1B1.10 can be read to permit a reduced sentence only
    where the defendant’s pre-departure sentencing range is found within the crack cocaine
    guidelines. However, “the meaning of language is inherently contextual [and] the [Supreme]
    Court has always reserved lenity for those situations in which a reasonable doubt persists about a
    statute’s intended scope even after resort to the language and structure, legislative history, and
    3
    1     See United States v. Poindexter, 
    550 F. Supp. 2d 578
    , 580-81 (E.D. Pa. 2008); United States v.
    2   Ragland, 
    568 F. Supp. 2d 19
    , 20 (D.D.C. 2008); United States v. Collier, No. 05-cr-313, 2008
    
    3 WL 4204976
    , *3 (E.D. Mo. Sept. 5, 2008); United States v. Clark, No. 00-037, 
    2008 WL 4
       2705215, *1 (W.D. Pa. July 7, 2008); United States v. Cornish, No. 05-337, 2008 U.S. Dist.
    
    5 LEXIS 50577
    , at *7-*8 (D. N.J. June 25, 2008); United States v. Nigatu, No. 00-18, 
    2008 WL 6
       926561, at *1 (D. Minn. Apr. 7, 2008); cf. United States v. Boyd, No. 01-29, 
    2008 WL 2537139
    ,
    7   at *3 (W.D. Pa June 24, 2008) (suggesting that reduction would be warranted if § 4A1.3
    8   downward departure to § 2D1.1 range had been granted). We recognize that in some of these
    9   cases the government either did not object or did not make the arguments that the government
    10   makes here. We have found two cases, outside of the instant case, that arrive at a contrary
    11   conclusion. See United States v. Menafee, No. 04-cr-138, 
    2008 WL 3285254
    , at *3 (D. Conn.
    12   Aug. 7, 2008) (Hall, J.); United States v. Thompson, No. 03-47-cr, 
    2008 WL 4745879
    , at *1 (D.
    13   Minn. Oct. 27, 2008); cf. United States v. Rivera, 
    535 F. Supp. 2d 527
    , 530 n.2 (E.D. Pa. 2008)
    14   (stating that it was unclear whether § 1B1.10 reduction would be warranted if defendant had been
    15   granted downward departure to § 2D1.1 range under § 4A1.3).
    8
    motivating policies of the statute.” United States v. Dauray, 
    215 F.3d 257
    , 264 (2d Cir. 2000)
    (alteration and quotation marks omitted); see also United States v. Simpson, 
    319 F.3d 81
    , 86-87
    (2d Cir. 2002) (holding that the rule of lenity applies to Sentencing Guidelines). Here, we
    conclude that there is ambiguity as to whether the Sentencing Commission intended to exclude
    defendants such as McGee, who were clearly sentenced based on the crack cocaine guidelines
    and were disadvantaged by the 100-to-1 sentencing disparity that the crack amendments sought
    to correct, from the reach of the amendments.
    CONCLUSION
    We conclude that a defendant who was designated a career offender but ultimately
    explicitly sentenced based on a Guidelines range calculated by Section 2D1.1 of the Guidelines is
    eligible for a reduced sentence under 
    18 U.S.C. § 3582
    (c)(2) and the crack amendments. Given
    our holding, we decline to reach McGee’s arguments that a remand pursuant to United States v.
    Regalado, 
    518 F.3d 143
     (2d Cir. 2008) is warranted. The judgment of the district court is
    vacated and this matter remanded to allow the district court to consider whether McGee, who is
    eligible for a retroactive reduction in sentence, should receive one.
    9