Friday, February 05, 2010

Defendant Who Got 5K1.1 Departure Below Statutory Minimum Not Eligible for 3582(c)(2) Reduction, Because Sentence Was Based on Statute, Not Guidelines

United States v. Carter, No. 08-20235 (5th Cir. Jan. 28, 2010) (per curiam) (Jones, Smith, Elrod)

The short answer (because the long one requires close examination of statutory and guideline language): "[W]e join the Fourth, Eighth, and Eleventh Circuits and hold that when a defendant is subject to a statutory minimum sentence above the upper end of his guideline range, even if the district court departs downwardly from that minimum under a statutory exception, 18 U.S.C. § 3582(c)(2) provides no authority to the district court to later modify the sentence based on amendments to the guideline range." If you want to get deep in the weeds of this issue, read on.

Our facts: In 2005, Carter was convicted of a crack offense carrying a statutory mandatory minimum sentence of 10 years' imprisonment. That was higher than the Guideline range of 87 to 108 months, so the Guideline sentence was 120 months. The Government moved for a §5K1.1 substantial assistance departure. The court granted it, and sentenced Carter to 36 months.

November 1, 2007 rolls around, along with a retroactive reduction of the crack guidelines. Carter filed a motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2).
He argued that his 36-month sentence represented a 59 percent reduction from the 87-month low end of the Presentence Report’s guideline calculation, that a correct guideline range in light of the crack cocaine amendments would be 70 to 87 months, and therefore that the district court should reduce this portion of his sentence to 59 percent below 70 months. This would result in a sentence of 29 months, rather than 36, on the possession count.

The district court denied Carter's motion, finding that he wasn't eligible for a reduction under § 3582(c)(2) because his original sentence was based on the statutory mandatory minimum, not the subsequently-amended crack guidelines.

The court of appeals agreed, relying on the reasoning of a Fourth Circuit decision involving similar facts.
The phrase “based on a sentencing range” [in § 3582(c)(2)] straightforwardly aligns with the familiar sentencing practice of initially calculating a base range and then considering grounds for departing from it. In contrast to that typical situation, when an applicable statutory minimum sentence is greater than the high end of the guideline range, that minimum—not the otherwise applicable guideline range—is the starting point for sentencing. See U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”). Indeed, the district court lacks authority to impose a sentence below the statutory minimum absent a statutory exception. . . . There is no dispute that Carter was subject to a statutory minimum sentence greater than the high end of his guideline calculation, whether calculated with or without the crack cocaine amendments. In this circumstance, the sentence was “based on” the statutory minimum, not the guideline range.

Carter countered by pointing to the language of 18 U.S.C. § 3553(e), which is the statutory authorization for substantial assistance departures. It directs a court to impose such a sentence "in accordance with the guidelines and policy statements issued by the Sentencing Commision." That language, Carter argued, "refer[s] to the otherwise applicable guideline range[,]" meaning that "the statutory minimum sentence no longer applie[s]." The court disagreed:
Nothing in § 3553(e) indicates that a statutory minimum sentence gives way to an otherwise applicable guideline range when a district court reduces the sentence based on the defendant’s substantial assistance to the government. Rather, § 3553(e)describes the familiar procedure of a downward departure from a baseline sentence. The Sentencing Commission has indicated that the applicable policy statement for § 3553(e) is U.S.S.G. § 5K1.1, which is the general provision governing downward departures from the guidelines. . . . Section 5K1.1 provides that “[u]pon motion of the
government stating that the defendant has provided substantial assistance . . . the court may depart from the guidelines” (emphasis added). Accordingly, the Commission implicitly considers a statutory minimum sentence to be analogous to a low-end guideline from which the court may depart. That is the interpretation we give to § 3553(e) as well. . . . Furthermore, inasmuch as the statutory minimum remains the baseline sentence from which the court may downwardly depart, we do not agree with Carter that the phrase “in accordance with the guidelines and policy statements issued by the Sentencing Commission” refers to ordinary guideline ranges. Instead, we interpret it to refer to such guidelines and policy statements as the Commission may create specifically to implement § 3553(e). As noted in Hood, 556 F.3d at 235, the applicable policy statement is the downward departure provision of U.S.S.G. § 5K1.1, which states principles for determining whether and how far to downwardly depart; the sentencing commission has not created any further “sentencing ranges” for such downward departures.

Carter had one more arrow in his quiver:
Whereas § 3582(c)(2) allows modification only of sentences “based on” amended sentencing ranges, Carter notes that under § 1B1.10(a)(1), a reduction may be appropriate if “the guideline range applicable to [the] defendant has subsequently been lowered as a result of [certain amendments].” (emphasis added) . . . . Carter argues that the 87 to 108 month range is “the guideline range applicable” in his case, even though a statutory minimum guideline sentence superseded that range.

The court disagreed, "conclud[ing] that the term 'guideline range applicable' in § 1B1.10 includes a statutory minimum sentence when such a minimum applies." Consequently, "a subsequent amendment to a different provision (the unutilized guideline range calculation) does not provide grounds for a sentence reduction." The court also pointed to §1B1.10's Application Note, which says that a defendant is not eligible for a sentenced reduction if the change in the guidelines "does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment)."

Labels: , ,


Post a Comment

<< Home