United States v. Boe

REVISED, August 1, 1997
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-31228
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOHN BOE
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
July 11, 1997
Before KING, DUHÉ, and WIENER, Circuit Judges.
DUHÉ, Circuit Judge:
John Boe appeals the district court’s denial of his post-
conviction motion for reduction of sentence. For reasons that
follow, we vacate and remand for resentencing.
BACKGROUND
Appellant John Boe pleaded guilty to manufacturing marijuana
within 1,000 feet of a school, in violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 860. In January 1992, the district court
sentenced Boe to 80 months of imprisonment to be followed by 8
years of supervised release.
In January 1996, Boe moved for modification of his sentence
pursuant to 18 U.S.C. § 3582(c)(2), requesting that his sentence be
reduced in light of a 1995 amendment to U.S.S.G. § 2D1.1
(“Amendment 516"). The district court denied the motion. Boe
unsuccessfully moved for reconsideration, and he now appeals.
DISCUSSION
Section 3582(c)(2) permits a district court to reduce a term
of imprisonment when it is based upon a sentencing range that has
subsequently been lowered by an amendment to the Sentencing
Guidelines, if such a reduction is consistent with the policy
statements issued by the Sentencing Commission. See 18 U.S.C. §
3582(c)(2). The applicable policy statement is U.S.S.G. § 1B1.10,
see United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir.
1997), and it dictates that Amendment 516 is designated for
retroactive application. See U.S.S.G. § 1B1.10(c).
Having determined that Amendment 516 may be applied
retroactively, we note that the decision whether to reduce a
sentence is left to the sound discretion of the trial court. Thus,
we review for abuse of discretion only. See United States v.
Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995). In exercising this
discretion, the sentencing court is guided by U.S.S.G. § 1B1.10(b),
which instructs the court to “consider the sentence that it would
have imposed” had Amendment 516 been in effect at the time the
defendant was originally sentenced. Further, 18 U.S.C. §
3582(c)(2) directs the sentencing court to consider the numerous
factors set forth in 18 U.S.C. § 3553(a) when determining the
defendant’s sentence. See Whitebird, 55 F.3d at 1009 (listing
certain of the applicable factors).
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Amendment 516 had the effect of reducing Boe’s net offense
level from 28 to 20. Calculation of Boe’s pre- and post-Amendment
516 imprisonment ranges is relatively straightforward. The
applicable Guideline for the crime of manufacturing marijuana
within 1,000 feet of a school, in violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 860, is U.S.S.G. § 2D1.2. That section
sets the base offense level at “2 plus the offense level from §
2D1.1 applicable to the quantity of controlled substances directly
involving a protected location . . . .” U.S.S.G. § 2D1.2(a)(1).
Section 2D1.1 contains the Drug Quantity Table, which ascertains
the base offense level relative to the quantity of controlled
substances manufactured by the defendant. In this case, Boe was
convicted of manufacturing 574 marijuana plants. At the time of
his sentencing--prior to Amendment 516--the notes to § 2D1.1
provided that each marijuana plant was equivalent to 1 kilogram of
marijuana. The Drug Quantity Table provides that a crime involving
574 kilograms of marijuana has a base offense level of 28. See
U.S.S.G. § 2D1.1(c)(6). In addition, the Presentence Report stated
that Boe’s offense level should be decreased by 2 points for
acceptance of responsibility. Thus, at the time of his original
sentencing, Boe’s net offense level was 28 (2 from § 2D1.2, plus 28
from § 2D1.1, minus 2 for acceptance of responsibility). Finally,
Boe’s criminal history category was I. A net offense level of 28
and a criminal history category of I results in an imprisonment
range of 78-97 months. See U.S.S.G. ch. 5, pt. A. The district
court sentenced Boe to 80 months imprisonment, within the
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appropriate range at the time of the original sentencing
determination.
In 1995, however, the Sentencing Commission promulgated
Amendment 516, which provides that, in offenses involving marijuana
plants, the defendant’s sentence should be based upon the greater
of: (1) the actual weight of the usable marijuana, or (2) 100
grams per plant. See U.S.S.G. App. C, Amendment 516 (Nov. 1, 1995)
(amending the notes and commentary to U.S.S.G. § 2D1.1). Because
there is no evidence that the Government measured the actual weight
of usable marijuana seized from Boe, each plant is equivalent to
100 grams of marijuana. As noted above, Boe manufactured 576
plants, and at 100 grams per plant, the quantity of drugs
manufactured is equal to 57.6 kilograms. The Drug Quantity Table
provides that 57.6 kilograms of marijuana carries a base offense
level of 20. See U.S.S.G. § 2D1.1(c)(10). Thus, upon application
of Amendment 516, Boe’s net offense level is 20 (2 from § 2D1.2,
plus 20 from § 2D1.1, minus 2 for acceptance of responsibility).
A net offense level of 20 and a criminal history category of I
yield an imprisonment range of 33-41 months. See U.S.S.G. ch. 5,
pt. A.
There is, however, a statutory mandatory minimum sentence of
5 years (60 months) for the crime of manufacturing more than 100
plants of marijuana. See 21 U.S.C. § 841(b)(1)(B)(vii). The
Guidelines instruct that “[w]here a statutorily required minimum
sentence is greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence shall be the
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guideline sentence.” U.S.S.G. § 5G1.1(b); see also United States
v. Marshall, 95 F.3d 700, 701 (8th Cir. 1996) (stating that
Amendment 516 could not lower the defendant’s sentence below the
60-month statutory mandatory minimum). Based on the foregoing, Boe
asserts that his sentence should be reduced from the 80-month
sentence that he originally received to the 60-month mandatory
minimum sentence.
The district court denied Boe’s § 3582 motion for reduction of
sentence and also his motion for reconsideration. In denying Boe’s
motion for reconsideration, the court noted that 18 U.S.C. §
3553(b) permits departure from the applicable Guidelines range if
the court finds “that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission.” 18 U.S.C. § 3553(b).
In this case, the district court found that Boe’s criminal history
assessment did not adequately reflect the seriousness of his past
criminal conduct, for Boe had been convicted of a drug crime in
1979 that did not result in the assessment of criminal history
points because it did not occur within the applicable time period.
See U.S.S.G. § 4A1.2(e). The district court thus concluded that
U.S.S.G. § 4A1.3 permits upward departure in such a situation, and
held that the decision not to reduce Boe’s sentence to 60 months
was well within its authority.
There is, however, a serious flaw in the district court’s
reasoning. As the court noted, the inclusion of the 1979
conviction in Boe’s criminal history assessment would increase
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Boe’s criminal history category to II. Under the Guidelines, a net
offense level of 20 and a criminal history category of II results
in an imprisonment range of 37-46 months--well below the statutory
mandatory minimum of 60 months and far below Boe’s 80-month
sentence. See U.S.S.G. ch. 5, pt. A. In fact, an 80-month term of
imprisonment would correspond to a net offense level of 20 and a
criminal history category of VI, see id., far higher than the
criminal history category of II that the district court found to be
applicable.
The district court’s decision to depart upward, pursuant to §
4A1.3, to a sentence appropriate for a criminal history category of
VI is directly at odds with our en banc decision in United States
v. Lambert, 984 F.2d 658 (5th Cir. 1993). Although we recognized
in Lambert that a district court may be justified in departing
upward, pursuant to § 4A1.3, to a sentence that reflects a much
higher criminal history category than the one seemingly applicable
under the Guidelines, we held that:
When making such a departure, the district court should
consider each intermediate criminal history category before
arriving at the sentence it settles upon; indeed, the court
should state for the record that it has considered each
intermediate adjustment. Further, it should explain why the
criminal history category as calculated under the guidelines
is inappropriate and why the category it chooses is
appropriate.
Id. at 662-63. We cautioned that the district court need not
mechanically discuss each intermediate criminal history category,
for in most cases the district court’s reasons for rejecting the
intermediate categories “will clearly be implicit.” See id. at
663.
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Contrary to the teaching of Lambert, however, the district
court did not explicitly state why it rejected the intermediate
categories and sentenced Boe commensurate with a criminal history
category of VI, and it is not implicit from the court’s order or
the record as a whole why it did so. Indeed, the court itself
specifically stated that Boe was deserving of a criminal history
category of II, far below that of VI. We therefore cannot discern
why the district court refused to reduce Boe’s current 80-month
sentence to the 60-month statutory minimum. In such a situation,
we have no choice but to vacate the district court’s sentencing
decision and remand for resentencing.
We note that if the district court is unable or unwilling on
remand to justify use of a criminal history category of VI,
Appellant has served the statutory minimum sentence and is eligible
for immediate release. We, therefore, shorten the delay for
application for rehearing to one week and order our mandate issued
then if no rehearing is applied for. We also urge the district
court, in view of the peculiar circumstances of this case, to take
it up as soon as possible on remand.
VACATED and REMANDED.
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