In United States v. Barney, No. 11-2488, (3d Cir., Mar. 6, 2012), the Third Circuit addressed the issue it previously had left open in United States v. Flemming, 617 F.3d 252 (3d Cir. 2010).
In both Barney and Flemming, the defendants had been convicted of possession with intent to distribute crack cocaine. Both defendants had been sentenced as career offenders, but both of them had received downward departures pursuant to U.S.S.G. § 4A1.3 (overstatement of criminal history). The § 4A1.3 departures reduced the defendants' sentences to the ranges which had been calculated before the career offender enhancements had been applied. Both defendants sought further sentence reductions under 18 U.S.C. § 3582(c)(2), arguing that Amendment 706 to the guidelines would have reduced their base offense levels.
However, in Flemming, the defendant had been sentenced under the 2001 version of the guidelines. The Flemming court determined that, prior to a 2003 amendment, the guidelines addressing the defendant's eligibility for an additional sentence reduction under 18 U.S.C. § 3582(c)(2) were ambiguous. Specifically, the Court concluded that the 2001 version of the guidelines failed to adequately define the term "applicable guideline range" as used in 18 U.S.C.
§ 3582(c)(2). The Court noted that the 2003 amendment clarified the definition of "departure" in the commentary to U.S.S.G. § 1B1.1 to indicate that a departure under § 4A1.3 was a departure from the applicable guideline range, not a departure to that range. However, this amendment was enacted after the defendant already had been sentenced. Therefore, the Court in Flemming specifically declined to address the issue of whether the defendant's "applicable guideline range" under 18 U.S.C. § 3582(c)(2) was calculated under the career offender guidelines or guidelines for crack cocaine. Nonetheless, the Court relied upon the rule of lenity to grant the defendant's request for the additional reduction.
In Barney, the Third Circuit took the opportunity to address this outstanding issue. Citing the 2003 amendment, the Court concluded that the previous ambiguity regarding the definition of "departure" had been resolved. Consequently, the § 4A1.3 departure was a departure from the applicable guideline range, not to the applicable guideline range. Therefore, as the "applicable guideline range" was based upon the career offender guidelines and not the crack cocaine guidelines, Amendment 706 did not apply to provide a further reduction under 18 U.S.C. § 3582(c)(2).
Note that, although the Court has not directly addressed application of 18 U.S.C. § 3582(c)(2) to career offenders under the recent amendment to § 1B1.10 (Amendment 759, effective November 1, 2011), it suggested in a footnote that its conclusion is consistent with the new language in this amendment.