Monday, February 25, 2008

Third Circuit addresses applicability of new crack guidelines to cases on direct appeal

In United States v. Wise, No. 06-4926, and United States v. Brown, No. 06-4928, (3d Cir. Feb. 12, 2008), a Third Circuit panel addressed for the first time the differential in the powder cocaine and crack cocaine Sentencing Guidelines since the Supreme Court’s decision in Kimbrough. Defendants Wise and Brown were convicted of possession with intent to distribute 50 grams or more of crack cocaine and possession of a firearm in furtherance of that offense. Defendant Brown was sentenced to a total of 324 months imprisonment (the middle of his advisory Guidelines range), and defendant Wise received a sentence of 319 months (the top of his advisory Guidelines range).

Both defendants challenged their sentences on procedural and substantive grounds. The Third Circuit reiterated the three step process to be applied by sentencing courts post-Booker, specifically: (1) properly calculating the Guidelines range; (2) formally ruling on the parties’ motions and if granting a departure stating how that departure affects the Guidelines calculations; and (3) exercising its discretion by considering all § 3553(a) factors and determining the appropriate sentence.

The Third Circuit noted that its review is two-fold, with the first duty being to ensure that the district court committed no significant procedural error in arriving at its decision, "such as failing to calculate (or improperly calculating) the Guidelines, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence - including an explanation for any deviation from the Guidelines range" (quoting Gall). It then stated that it will review the district court’s decision under an abuse-of-discretion standard, but noted that the amount of deference it gives will depend on the type of procedural error asserted on appeal. By way of example, the Court said that it would hold that a district court abused its discretion if the sentencing decision was based on a clearly erroneous factual conclusion or an erroneous legal conclusion. The Court held that its review is highly deferential if the asserted procedural error is purely factual, but that it will not defer to a district court when the asserted procedural error is purely legal. Once the Third Circuit has determined that no procedural error has been committed, it will review the substantive reasonableness of the sentence under an abuse-of-discretion standard, regardless of whether the sentence falls within the Guidelines range.

The Court rejected Brown and Wise’s challenges to their sentences, including an allegation that their Guidelines range was incorrectly calculated because lower crack Guidelines took affect during the pendency of their appeal. The panel held that the rule requiring application of the version of the Guidelines in effect on the date of sentencing continues to apply, with two exceptions: (1) if applying the version of the Guidelines in effect on the date of sentencing presents an ex post facto problem, and (2) if a subsequent Guidelines amendment merely clarifies the law in existence at the time of sentencing, as opposed to working a substantive change in the law. Because the post-sentencing amendment reducing the base offense level applicable to a particular offense is a substantive change, it is not applied retroactively to cases on appeal.

The most significant portion of this opinion, however, may be in its discussion of the defendants’ ability to apply for relief pursuant to 18 U.S.C. § 3582(C)(2), noting that its decision was without prejudice to the defendants’ statutory right to pursue reduced sentences once the amendment to Guidelines § 1B1.10 becomes effective on March 3, 2008. In a footnote, the panel rejected the argument that because the Guidelines are no longer mandatory, defendants need not wait to apply for relief under the new crack cocaine Guidelines pursuant to 18 U.S.C. § 3582(c)(2):

Some may argue that, because the Guidelines are no longer mandatory, defendants need not wait to apply for relief under § 3582(c)(2). That fundamentally misunderstands the limits of Booker. Nothing in that decision purported to obviate the congressional directive on whether a sentence could be reduced based on subsequent changes in the Guidelines. As we have stated before, "[t]he language of the applicable sections could not be clearer: the statute directs the Court to the policy statement, and the policy statement provides that an amendment not listed in subsection (c) may not be applied retroactively pursuant to 18 U.S.C. § 3582(c)(2)." United States v. Thompson, 70 F.3d 279, 281 (3d Cir. 1995).

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