Monday, June 22, 2009

District Court May Not Impose Sentence Below Revised Guidleines Range In 3582(c)(2) Resentencings

United States v. Doublin, No. 08-30775 (5th Cir. June 22, 2009) (per curiam) (Barksdale, Dennis, Elrod)

A couple of years ago the Sentencing Commission revised the drug guidelines to reduce, but not eliminate, the disparity between crack and powder cocaine sentences. The Commission also made the change retroactive, allowing defendants whose Guidelines ranges would have been lower under the revised guidelines to be resentenced under those new guidelines.

Of course, this all happened after Booker, leading to the question whether these "3582(c)(2)" resentencings were to be full "Booker resentencings"—in which case the district court could impose a sentence below the newly-lowered range—or whether the low end of the new range was a mandatory floor. As you might imagine, the circuits divided over this question—a complicated one involving the interaction of a statute, a Guidelines policy statement, and the Supreme Court's judicial revision of the Guidelines scheme in Booker. In the meantime, the Sentencing Commission amended policy statement §1B1.10 in 2008 to prohibit a reduction below the revised Guidelines range.

Doublin finds the Fifth Circuit joining the eight others that have held the 2008 amendment bars any reduction below the revised Guidelines range. The Ninth Circuit is the only one to have held otherwise, and it weighed in before the 2008 amendment (although the amendment would not have had any effect on the Ninth Circuit's analysis, which reasoned that no guidelines are mandatory after Booker). So why does Doublin pick the side it does?
Booker mandates the guidelines are advisory in full sentencings (and, hence, in full resentencings); but, it is undisputed that a reduction under 18 U.S.C. § 3582 does not constitute a full resentencing. Guideline § 1B1.10(a)(3) provides that “proceedings under 18 U.S.C. § 3582(c)(2) . . . do not constitute a full resentencing of the defendant”. As the Tenth Circuit noted in Rhodes, “there are clear and significant differences between original sentencing proceedings and sentence modification proceedings”. These differences explain why Booker does not affect Guideline § 1B1.10.

As an initial matter, the concerns at issue in Booker do not apply in an 18 U.S.C. § 3582(c)(2) proceeding. Quoting Apprendi v. New Jersey, Booker noted that any “fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”. Section 3582(c)(2) proceedings do not, of course, involve sentence increases. “[T]he limits § 3582(c)(2) and U.S.S.G. § 1B1.10 impose on the extent of reductions are, at most, the equivalent of mandatory minimum sentences, which the Sixth Amendment permits within an otherwise-authorized sentencing range”.

Furthermore, reductions under 18 U.S.C. § 3582(c)(2) are not mandatory; this section merely gives the district court discretion to reduce a sentence under limited circumstances. By referencing the guidelines, the Sentencing Commission has not reimposed a mandatory guidelines regime; rather, the guidelines serve merely as a limit on the extent to which a sentence may be reduced subsequent to its having been imposed previously. (Of course, in the absence of 18 U.S.C. § 3582(c)(2), a sentence based on a subsequentlyamended guideline could not be reduced to any extent.)

As the Eighth Circuit noted in Starks, “[i]n § 3582(c), Congress sought to limit the authority of a district court to modify a term of imprisonment”, by requiring any reduction to be consistent with policy statements issued by the Sentencing Commission. Accordingly, “[a]lthough the guidelines must be treated as advisory in an original sentencing proceeding, neither the Sixth Amendment nor Booker prevents Congress from incorporating a guideline provision as a means of defining and limiting a district court’s authority to reduce a sentence under § 3582(c)”.
(some citation clutter omitted). Shorter, glib version: the Guidelines are advisory, except when they're not.

So, will the Supreme Court grant cert to resolve the circuit split on this question? I don't see why not. Every one of the geographic circuits save one (D.C.) have now weighed in, the Ninth Circuit is unlikely to change its mind, and the question affects a large number of prisoners. Seems primed for cert, whether it be Doublin or some other case.

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