"Career Offender" Designation Not Always Fatal to Sentence Reduction Motion Pursuant to Crack Cocaine Guideline Amendments

After an extended engagement with some very fine print, the Court holds in United States v. Glenn Flemming, No. 09-2726 (July 27, 2010), that a notable group of defendants are eligible for sentence reductions pursuant to the Sentencing Commission’s retroactive lowering of crack cocaine offense levels. These are all who were designated as career offenders under pre-2003 versions of the Sentencing Guidelines but who, following a determination that the career offender enhancement overstated their actual criminal history, received downward departures to points within a sentencing range yielded by the crack cocaine guideline. The Court also strongly suggests, without deciding, that the opposite result will hold for defendants sentenced under later versions of the Guidelines.

Glenn Flemming’s crack cocaine offenses were determined to have involved a quantity of between four and five grams. The offense conduct occurred during a period that called for application of the 2001 version of the Guidelines. Under the provision then codified at U.S.S.G. § 2D1.1, his sentencing range was 92-115 months. Two previous drug convictions, however, triggered the career offender provision at § 4B1.1 and raised his sentencing range to 267-327 months. The district court ultimately deemed this enhancement to overstate his criminal history, and therefore granted a downward departure for overrepresentation pursuant to § 4A1.3. In determining how far to depart, the court chose to reset the offense level as per § 2D1.1 itself. (Note that such a "vertical" § 4A1.3 departure, previously authorized under United States v. Shoupe, 35 F.3d 835 (3d Cir. 1994), is no longer permitted following a 2003 Guidelines amendment defining "departure" for purposes of § 4A1.3.) The court also reset Flemming’s criminal history category. The corresponding sentencing range thus reverted to 92-115 months, as provided by the crack cocaine guideline at § 2D1.1. The court imposed a high-end sentence of 115 months.

In 2008, the Commission designated as retroactive an amendment of the crack cocaine guideline lowering most defendants’ offense levels by two levels. Under the amended guideline, Flemming’s range becomes 77-96 months. He brought a pro se motion pursuant to 18 U.S.C. § 3582(c)(2), which permits district courts to reduce a sentence under an otherwise final judgment when the defendant was "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered," if "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." The Commission, in turn, has promulgated a policy statement at § 1B1.10 barring reductions if a retroactive amendment "does not have the effect of lowering the defendant’s applicable guideline range." In Dillon v. United States, decided last month, the Supreme Court held this policy statement to remain binding on courts despite the generally advisory nature of the Guidelines after United States v. Booker.

Other circuits have lined up in a 3-3 split as to whether defendants in Flemming’s position are eligible for a sentence reduction under the amended crack guideline. In this week’s decision, the Third Circuit places itself in a new majority holding they are. The Court, with Judge Ambro writing, first determines that Flemming’s sentence was "based on a sentencing range that has subsequently been lowered." It devotes the better part of its discussion to scrutiny of the meaning of "applicable guideline range" as used in the Commission’s binding policy statement. Ultimately the Court concludes that neither the text of the pre-2003 Guidelines nor the Commission’s commentary permits a clear conclusion. Those Guidelines were "ambiguous as to whether the ‘applicable guideline range’ is [the defendant’s] pre-§ 4A1.3 departure range (the Career Offender Guidelines range) or his post-§ 4A1.3 departure range (the Crack Cocaine Guidelines range)."

Accordingly, the Court applies the rule of lenity to conclude that defendants such as Flemming are eligible for a reduction of sentence pursuant to the retroactive crack amendment. In a concluding discussion, the Court strongly suggests the opposite will be true of defendants sentenced under the Guidelines in effect as of October 27, 2003, or later. An amendment effective that date may be read to cure the ambiguity in the phrase "applicable Guidelines range" to provide that it means the range yielded by the career offender provision. If that reading is adopted, the policy statement at § 1B1.10 will bar sentence reductions even when district courts departed downward under § 4A1.3 and then selected sentences within the range yielded by the crack cocaine guideline. (The Circuit has previously held that defendants sentenced within the career offender range following conviction for crack cocaine offenses are not eligible for § 3582 reductions. See United States v. Mateo, 560 F.3d 152 (3d Cir. 2009) (Third Circuit Blog post here)).