United States v. Alexander, Randy ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3420
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ANDY J. A LEXANDER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 1043-1—George W. Lindberg, Judge.
A RGUED D ECEMBER 17, 2008—D ECIDED JANUARY 22, 2009
Before B AUER, P OSNER, and M ANION, Circuit Judges.
P OSNER, Circuit Judge. The defendant was sentenced
to 151 months in prison for bank robbery, a sentence
within the guidelines range of 151 to 189 months for a
career offender, which the judge correctly determined
him to be. At the time sentence was imposed, Amendment
709 to the sentencing guidelines, proposed by the Sen-
tencing Commission, was pending. Had the amendment
been in effect, the defendant’s guidelines range would
have been only 63 to 78 months.
2 No. 07-3420
Under the guidelines governing the calculation of a
defendant’s criminal history as they existed before the
amendment, a defendant’s prior sentences were to be
treated as a single sentence in calculating that history
if they had been imposed in “related cases,” and an
application note explained that cases were “related” if (so
far as pertains to this case) they had been “consolidated
for trial or sentencing.” U.S.S.C. § 4A1.2(a)(2) and Ap-
plication Note 3. The defendant in our case had
previously committed eight bank robberies in a short
time and had been sentenced for all eight on the same
day. But the charges had not been consolidated and so
the judge treated them as multiple prior offenses, and
that is what made the defendant a career offender. Amend-
ment 709 changed the guideline to require counting
prior sentences separately unless they were “imposed on
the same day,” as our defendant’s prior sentences had
been.
The amendment took effect only six weeks after he
was sentenced. He argues that since it was pending when
he was sentenced, the judge should have considered it
in deciding what sentence to impose and that having
failed to do so—if only because the defendant’s lawyer
had not drawn the amendment to the judge’s atten-
tion—the judge should be required to resentence him.
He acknowledges that the guidelines applicable to a
resentencing are those that were in force on the date of
the original sentencing. United States v. Tanner, 544 F.3d
793, 795 (7th Cir. 2008). But he points out that since
the guidelines are only advisory, the judge might be
influenced by a proposed amendment to give a sen-
tence below the applicable guideline range.
No. 07-3420 3
The failure of the defendant’s lawyer to have advised
the judge of the pending amendment makes the argu-
ment frivolous. It would require that, in preparation for
sentencing, the judge canvass all the possible sources of
information or opinion or insight or advice that might
influence him in deciding how severe a sentence to
impose. If, after the defendant was sentenced, his lawyer
discovered a source of enlightenment that the judge had
somehow overlooked in his pre-sentencing research, the
defendant would be entitled to be resentenced. The
sentencing process would be interminable.
We would have a different case if the Sentencing Com-
mission had, as it could have done but did not do, made
the amendment retroactive. Then, unless it was apparent
from the sentencing hearing that the judge would have
imposed the same sentence even if the amendment had
been in force, we would remand the case for the judge
to decide whether to impose a different sentence in light
of the new amendment. 18 U.S.C. § 3582(c)(2), United States
v. Taylor, 520 F.3d 746, 748-49 (7th Cir. 2008); United States
v. Whiting, 522 F.3d 845, 853 (8th Cir. 2008). Otherwise
there would be no force to the commission’s having made
the amendment retroactive. The government argues that
the judge’s remarks at the hearing show that he would
have imposed the same sentence, but this we need not
decide.
It would likewise be a different case if Amendment 709
had merely clarified the criminal-history guideline
rather than changing it. U.S.S.G. § 1B1.11; United States v.
Hartz, 296 F.3d 595, 598 (7th Cir. 2002); United States v.
4 No. 07-3420
Geerken, 506 F.3d 461, 465-66 (6th Cir. 2007). The clarifica-
tion might enable the sentencing judge to correct an error
of interpretation induced by lack of clarity, though the
guidelines authorize this use of a clarifying amendment
only when the sentence is based on an edition of
the guidelines that is no longer in force when the defen-
dant is sentenced and the clarifying guideline precedes
the sentence, U.S.S.G. § 1B1.11(b)(2)—here of course it
followed it.
But Amendment 709 changed the guideline rather than
merely clarifying it, United States v. Wood, 526 F.3d 82, 87-
88 (3d. Cir. 2008); United States v. Marler, 527 F.3d 874, 877
n. 1 (9th Cir. 2008). “[I]mposed on the same day” does
not clarify “consolidated for sentencing” but contradicts it,
since a defendant can be—as our defendant was—sen-
tenced on the same day for multiple crimes charged in
separate cases that were not consolidated.
The defendant would have a slightly more appealing
case if, as in United States v. Godin, 522 F.3d 133 (1st Cir.
2008) (per curiam), he had been sentenced before Amend-
ment 709 had been proposed. For then he could at least
not be criticized for having failed to draw the sentencing
judge’s attention to the proposal. The amendment was
proposed while Godin’s case was on appeal and Godin
drew the court of appeals’ attention to it in her petition
for rehearing after the court had affirmed her sentence.
The court delayed action on the petition until the
proposed amendment was approved and then vacated
its previous decision, and remanded for resentencing, on
the ground that the Sentencing Commission’s change of
heart might influence the judge to give a lighter sentence.
No. 07-3420 5
In Tanner we disapproved delaying sentencing in
order to give the defendant the benefit of a new amend-
ment to the guidelines, and what the First Circuit did
in Godin in delaying action on the petition for rehearing
until the proposed amendment was approved was
similar to the district judge’s grant of a continuance in
Tanner. There is enough delay in court as it is without
reopening sentences on the basis of changes in the law
that are not intended to be applied retroactively, and
there is a strong social interest in the promptness and
finality of criminal judgments.
Godin is an outlier; the other cases that deal with the
issue hold, and the guidelines themselves state, see
U.S.S.G. § 1B1.10(a), that an amendment to the guide-
lines that is not made retroactive by the Sentencing Com-
mission is not a ground for reopening a sentence
imposed before the amendment went into effect. United
States v. Perez, 249 F.3d 583 (7th Cir. 2001) (per curiam);
United States v. Armstrong, 347 F.3d 905, 907 (11th Cir.
2003); United States v. Drath, 89 F.3d 216, 217-18 (5th Cir.
1996); United States v. Cueto, 9 F.3d 1438, 1440-41 (9th Cir.
1993). Godin took a big step toward making Amendment
709 retroactive, thus introducing a new cause of delay
in sentencing and interfering with the Sentencing Com-
mission’s prerogative of determining whether to make
a particular amendment to the guidelines retroactive or
just prospective. We decline to follow it. See United States
v. Tanner, supra, 544 F.3d at 796-97.
A FFIRMED.
1-22-09