Tuesday, July 30, 2013

Career Offenders Convicted of Crack Offenses Are Not Eligible for a Sentence Reduction Pursuant to 18 U.S.C. § 3582(c) if the District Court Granted a Downward Departure Under U.S.S.G. § 4A1.3 at Sentencing

In United States v. Flemming, No. 12-1118, the Third Circuit held that crack defendants who were designated as career offenders, but were granted downward departures from their career offender status pursuant to U.S.S.G. § 4A1.3, are not entitled to a sentence reduction under 18 U.S.C. § 3582(c).

Flemming’s crack guideline range was 92 to 115 months imprisonment under U.S.S.G. § 2D1.1. Due to his designation as a career offender under U.S.S.G. § 4B1.1(a), however, his resultant guideline range became 262 to 327 months. The district court found that the career offender guideline overstated Flemming’s criminal history and granted a downward departure pursuant to U.S.S.G. § 4A1.3, finding that the crack guideline range of 92 to 115 months was more appropriate. The court ultimately sentenced Flemming to 175 months - 115 months for the crack offense, and a consecutive 60 month sentence for his 18 U.S.C. § 924(c) conviction. The district court reduced Flemming’s sentence under Amendment 706 to the guidelines, issued in 2007, which lowered the guideline ranges for crack offenses. See United States v. Flemming, 617 F.3d 252, 254-55 (3d Cir. 2010). Flemming was re-sentenced to 137 months - 77 months for the crack offense, and a consecutive 60 month term for the 924(c) conviction. He then moved for a second sentence reduction under Amendment 750 to the Guidelines, which further decreased the guidelines for crack offenses in response to the Fair Sentencing Act of 2010. The district court denied his motion.

The Third Circuit affirmed, holding that the Sentencing Commission’s policy statement § 1B1.10(a)(2)(B), precluding sentence reductions if a defendant’s "applicable guideline range" is not reduced by the amendment, prevented reductions in cases like these. During Flemming’s first appeal, the Third Circuit held that the Guidelines’ definition of "applicable guideline range" was ambiguous, and thus the rule of lenity allowed him to move for his first sentence reduction. Flemming, 617 F.3d at 270. Amendment 759 to the Guidelines, however, added a new definition of "applicable guideline range" in 2010. It is now defined as "the guideline range that corresponds to the offense level and criminal history category determined pursuant to § 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance."

The Third Circuit reasoned that since the definition states that the applicable guideline range is "determined before consideration of any departure provision in the Guidelines Manual or any variance," it is clear that a § 4A1.3 departure is ignored for purposes of determining a defendant’s applicable guideline range. See U.S.S.G. § 1B1.10 cmt. N. 1(A). Any § 4A1.3 departure is to be calculated after the applicable guideline range is calculated. The Court explained that its reading is supported by the Commission’s stated reason for adding a new definition of "applicable guideline range." The Commission meant to adopt the approach of those Circuit Courts of Appeal that have held that career offenders granted § 4A1.3 departures are not eligible for resentencing. U.S.S.G. app. C., amend. 759. Thus, Flemming was not entitled to a second sentence reduction under 18 U.S.C. § 3582(c).

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