United States v. Hunnewell , 70 F.3d 1396 ( 1995 )

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1538
UNITED STATES OF AMERICA,
Appellant,
v.
GEORGE LABONTE,
Defendant, Appellee.
No. 95-1226
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID E. PIPER,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
No. 95-1101
UNITED STATES OF AMERICA,
Appellee,
v.
ALFRED LAWRENCE HUNNEWELL,
Defendant, Appellant.
No. 95-1264
STEPHEN DYER,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Selya, Cyr and Stahl,
Circuit Judges.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Jay P. McCloskey, United States Attorney, Jonathan R.
Chapman and George T. Dilworth, Assistant United States
Attorneys, were on brief, for the United States.
John A. Ciraldo, with whom Perkins, Thompson, Hinckley &
Keddy, P.A. was on brief, for George LaBonte.
Peter Clifford for David E. Piper.
Michael C. Bourbeau, with whom Bourbeau and Bourbeau was on
brief, for Alfred Lawrence Hunnewell.
Cloud H. Miller, with whom Stephen Dyer was on brief pro se,
for Stephen Dyer.
December 6, 1995
SELYA, Circuit Judge. After many years of study and
SELYA, Circuit Judge.
debate, Congress passed the Sentencing Reform Act of 1984, Pub.
L. 98-473, tit. II, 212(a), 98 Stat. 1837 (1984) (codified as
amended at scattered sections of 18 & 28 U.S.C.). The
legislation took effect on November 1, 1987, and caused dramatic
changes both in the methodology of criminal sentencing and in the
outcomes produced. These changes did not go unremarked:
sentencing appeals, once rare in federal criminal cases, became
commonplace. Predictably, the tidal wave of appeals loosed a
flood of judicial opinions distilling the meaning, scope, and
application of a seemingly boundless sea of guidelines, policy
statements, notes, and commentary. And whenever it appeared that
the flood waters might recede, the Sentencing Commission launched
a fresh deluge of revisions that required the courts to paddle
even faster in a Sisyphean effort to stay afloat.
These four consolidated appeals are emblematic of the
difficulties that courts face in dealing with the new sentencing
regime. All four appeals implicate Application Note 2 to the
Career Offender Guideline, as modified by Amendment 506, United
States Sentencing Commission, Guidelines Manual 4B1.1, comment.
(n.2) (Nov. 1994). No appellate court has addressed the validity
of Amendment 506, and, in the quartet of criminal cases
underlying these appeals, two able district judges reached
diametrically opposite conclusions. Although the call is close,
we hold that Amendment 506 is a reasonable implementation of the
statutory mandate, 28 U.S.C. 994(h) (1988 & Supp. V 1993), and
3
is therefore valid. Thus, after answering other case-specific
questions raised by the various parties, we affirm the judgments
in the LaBonte and Piper cases; vacate the judgment in the
Hunnewell case and remand for reconsideration of the
appropriateness of resentencing; affirm the judgment in the Dyer
case in respect to all non-sentence-related matters and vacate
the sentence-related aspect of that judgment, remanding for
reconsideration.
I. THE AMENDMENT
I. THE AMENDMENT
Congress created the Sentencing Commission in 1984 to
design and implement federal sentencing guidelines. Three
principal forces propelled the legislation: Congress sought to
establish truth in sentencing by eliminating parole, to guarantee
uniformity in sentencing for similarly situated defendants, and
to ensure that the punishment fit the crime. See U.S.S.G. ch. 1,
pt. A(3), & 2; see also United States v. Unger, 915 F.2d 759,
762-63 (1st Cir. 1990) (explaining that the primary purposes of
the Sentencing Reform Act are to provide certainty, uniformity,
and fairness in sentencing), cert. denied, 498 U.S. 1104 (1991).
In addition to general guidance, see, e.g., 28 U.S.C. 991(b),
Congress also gave the Commission some specific marching orders.
One such set of marching orders is conveyed by 28
U.S.C. 994(h), which provides in part:
The Commission shall assure that the
guidelines specify a sentence to a term of
imprisonment at or near the maximum term
authorized for categories of defendants in
which the defendant is eighteen years old or
older and [has been convicted of a violent
4
crime or felony drug offense and has at least
two such prior convictions].
The Commission implemented section 994(h) through the Career
Offender Guideline. See U.S.S.G. 4B1.1, comment. (backg'd).
This guideline sets forth a table of enhanced total offense
levels (TOLs) said to be a function of the "Offense Statutory
Maximum" to be employed in calculating the sentences of so-
called "career offenders." See U.S.S.G. 4B1.1. A defendant is
regarded as a career offender if he was at least eighteen years
old at the time of the offense of conviction, that offense is a
crime of violence or a drug-related felony, and he has two prior
convictions for drug felonies or crimes of violence. See id.;
see also United States v. Piper, 35 F.3d 611, 613 n.1 (1st Cir.
1994), cert. denied, 115 S. Ct. 1118 (1995).
When the Commission issued the Career Offender
Guideline, it coined the phrase "Offense Statutory Maximum," but
did not define the phrase beyond saying that "the term `Offense
Statutory Maximum' refers to the maximum term of imprisonment
authorized for the offense of conviction." U.S.S.G. 4B1.1,
comment. (n.2) (Nov. 1987). Since this definition was
tautological, it proved unilluminating. Faced with a need to
improvise, several courts of appeals concluded that the phrase
encompassed not merely the statutory maximum applicable to the
offense of conviction simpliciter, but also the upgraded
statutory maximum that results after available enhancements for
prior criminal activity are taken into account. See United
States v. Smith, 984 F.2d 1084, 1085 (10th Cir.), cert. denied,
5
114 S. Ct. 204 (1993); United States v. Garrett, 959 F.2d 1005,
1009-11 (D.C. Cir. 1992); United States v. Amis, 926 F.2d 328,
329-30 (3d Cir. 1991); United States v. Sanchez-Lopez, 879 F.2d
541, 558-60 (9th Cir. 1989). This lexicographical choice carried
with it important consequences; under the courts' construction, a
defendant whose maximum possible term of imprisonment for a crime
of violence or drug offense was enhanced from, say, twenty to
thirty years on account of prior criminal activity, netted two
additional offense levels (increasing his TOL from thirty-two to
thirty-four) and found himself in a steeper sentencing range.
In Amendment 506, the Commission first meaningfully
defined the phrase "Offense Statutory Maximum." The amendment
provides that the phrase, for the purpose of the Career Offender
Guideline, "refers to the maximum term of imprisonment authorized
for the offense of conviction that is a crime of violence or
controlled substance offense, not including any increase in that
maximum term under a sentencing enhancement provision that
applies because of the defendant's prior criminal record."
U.S.S.G. 4B1.1, comment. (n.2) (Nov. 1994). The amended note
offers the example of a defendant who is subject to a sentencing
enhancement under 21 U.S.C. 841(b)(1)(C), in which case "the
`Offense Statutory Maximum' for the purposes of this guideline is
twenty years and not thirty years." Finally, the Commission
opted to give Amendment 506 retroactive effect. See U.S.S.G.
1B1.10(3) (Nov. 1994).
Initially, the Commission attempted to justify the
6
amendment as "avoid[ing] unwarranted double-counting as well as
unwarranted disparity associated with variations in the exercise
of prosecutorial discretion in seeking enhanced penalties based
on prior convictions." U.S.S.G., App. C, Amend. 506, at 409
(Nov. 1994). In addition, the Commission observed that Congress
enacted the array of sentence-enhancing laws after the statutory
predicate for the Career Offender Guideline had become law. See
id. Subsequently, the Commission attempted to explain its newly
emergent interpretation of the Career Offender Guideline in terms
of a desire to avoid unwarranted disparity and to achieve
consistency. See Amendment Notice, 60 Fed. Reg. 14,054, 14,055
(1995); see also United States v. LaBonte, 885 F. Supp. 19, 23
n.4 (D. Me. 1995). Whatever may be its provenance, it is nose-
on-the-face plain that, in many instances, Amendment 506 produces
lower TOLs (and, ultimately, shorter sentences) than the
unembellished Career Offender Guideline (as interpreted by the
courts). Due to this palliative effect, critics view it as
inimical to congressional intent.1
1As we have said before, "irony is no stranger to the law."
Amanullah v. Nelson, 811 F.2d 1, 18 (1st Cir. 1987). Throughout
its history, the Sentencing Commission has been berated for the
severity of the sentencing outcomes dictated by the guidelines.
See, e.g., United States v. Jackson, 30 F.3d 199, 204-06 (1st
Cir. 1994) (Pettine, J., concurring) (criticizing the guidelines
for fostering excessively harsh sentences); Daniel J. Freed,
Federal Sentencing in the Wake of Guidelines and Unacceptable
Limits on the Discretion of Sentencers, 101 Yale L.J. 1681, 1690
(1992) ("The new sentencing guidelines are more complex,
inflexible, and severe than those devised by any other
jurisdiction."); Charles J. Ogletree, Jr., Commentary: The Death
of Discretion? Reflections on the Federal Sentencing Guidelines,
101 Harv. L. Rev. 1938, 1939 (1988) (criticizing the
"unreasonably long sentences" produced by the guidelines).
7
II. THE DEFENDANTS
II. THE DEFENDANTS
These four defendants all were sentenced in the
District of Maine as career offenders prior to the birth of
Amendment 506. In each instance, the prosecution filed a notice
under 21 U.S.C. 851(a)(1) signalling its intention to seek
enhanced penalties for prior convictions, and the sentencing
court arrived at the defendant's "Offense Statutory Maximum" by
factoring the statutory enhancement into the mix. The court then
set each defendant's TOL and guideline sentencing range (GSR)
accordingly. Following the promulgation of the amendment, all
four defendants tried to avail themselves of it. We limn their
individual circumstances.
A. George LaBonte.
A. George LaBonte.
A grand jury indicted LaBonte for possession of cocaine
with intent to distribute in violation of 21 U.S.C. 841(a)(1) &
(b)(1)(C). After he pleaded guilty, the district court (Hornby,
U.S.D.J.) sentenced him under the Career Offender Guideline.
Using an enhanced statutory maximum derived from LaBonte's record
of prior drug convictions, Judge Hornby set LaBonte's TOL at
thirty-four, granted a three-level downward adjustment for
acceptance of responsibility, see U.S.S.G. 3E1.1, arrived at a
GSR of 188-235 months, and sentenced him to serve 188 months. We
affirmed. See United States v. LaBonte, 19 F.3d 1427 (1st Cir.
1994) (table).
Subsequent to the promulgation of Amendment 506,
LaBonte moved for resentencing. Judge Hornby determined that
8
Amendment 506 was valid and decided to apply it. See LaBonte,
885 F. Supp. at 24. He granted LaBonte's motion, focused on the
unenhanced statutory maximum to calculate a new TOL (thirty-two),
and again deducted three levels for acceptance of responsibility.
This recomputation yielded a GSR of 151-188 months, and Judge
Hornby lowered LaBonte's sentence to the nadir of the new range.
See id. The government appeals from this disposition.
B. David E. Piper.
B. David E. Piper.
Piper pleaded guilty to a two-count information
charging conspiracy to possess marijuana with intent to
distribute and use of a firearm in connection with a drug
offense. See 21 U.S.C. 841(a)(1) & (b)(1)(B), 846; 18 U.S.C.
924(c)(1). Utilizing an enhanced statutory maximum, Judge
Hornby set Piper's TOL at thirty-seven, subtracted three levels
for acceptance of responsibility, arrived at a GSR of 262-327
months, and imposed an incarcerative sentence of 300 months.2
We affirmed. See Piper, 35 F.3d at 613.
Hot on the heels of Amendment 506, Piper moved
unsuccessfully for resentencing. Although Judge Hornby assumed
the amendment's validity, he exercised his discretion and
declined to permit Piper to benefit from it.3 Piper appeals
from this disposition.
2Piper received an additional five-year sentence on the
firearms count. That impost is not in issue here.
3The amendment, if applied, would have lowered Piper's
adjusted offense level from thirty-four to thirty-two, and
decreased the GSR to 210-262 months.
9
C. Alfred Lawrence Hunnewell.
C. Alfred Lawrence Hunnewell.
A grand jury indicted Hunnewell on six narcotics
counts. See 21 U.S.C. 841(a)(1). He thereafter pleaded guilty
to two counts of possessing controlled substances with intent to
distribute, and the court (Carter, U.S.D.J.) dismissed the
remaining counts. Using an enhanced statutory maximum, Judge
Carter set Hunnewell's TOL at thirty-four, deducted three levels
for acceptance of responsibility, arrived at a GSR of 188-235
months, and sentenced the defendant to serve 188 months. We
affirmed. See United States v. Hunnewell, 10 F.3d 805 (1st Cir.
1993) (table), cert. denied, 114 S. Ct. 1616 (1994).
After the promulgation of Amendment 506, Hunnewell
beseeched the district court to trim his sentence. Judge Carter
denied this motion, concluding that the Sentencing Commission
lacked the authority to adopt Amendment 506.4 Hunnewell
appeals.
D. Stephen Dyer.
D. Stephen Dyer.
Dyer pleaded guilty to a charge of conspiring to
possess controlled substances with intent to distribute in
contravention of 21 U.S.C. 841(a)(1), 846. Consulting the
enhanced statutory maximum, Judge Carter set Dyer's TOL at
thirty-four, refused an acceptance-of-responsibility discount,
arrived at a GSR of 262-327 months, and levied a 262-month term
of imprisonment. We affirmed. See United States v. Dyer, 9 F.3d
4The amendment, if applied, would have lowered Hunnewell's
adjusted offense level from thirty-one to twenty-nine, and
decreased his GSR to 151-188 months.
10
1 (1st Cir. 1993) (per curiam).
Dyer eventually filed a petition for habeas relief, see
28 U.S.C. 2255, in which he sought to set aside his conviction
or, in the alternative, to reduce his sentence by virtue of
Amendment 506. Judge Carter denied and dismissed the habeas
petition. Among other things, the judge, declaring Amendment 506
to be unlawful, refused to resentence Dyer.5 Dyer protests all
aspects of the district court's order.
III. THE VALIDITY OF AMENDMENT 506
III. THE VALIDITY OF AMENDMENT 506
We begin our analysis by discussing, generally, the
methodology we will employ in examining Amendment 506. We then
proceed to tackle the two conundrums that are inextricably
intertwined with the question of the amendment's validity.
A. The Methodology.
A. The Methodology.
Commentary authored by the Sentencing Commission that
"interprets or explains a guideline is authoritative unless it
violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline." Stinson v. United States, 113 S. Ct. 1913, 1915
(1993). Like the Commission's policy statements, its commentary
is binding on the federal courts. See id. at 1917-18. In
general, these interpretive materials are entitled to the same
substantial degree of deference that courts routinely accord an
administrative agency's interpretation of its own legislative
5Amendment 506, if applied, would have lowered Dyer's
adjusted offense level from thirty-four to thirty-two, and
decreased his GSR to 210-262 months.
11
rules. See id. at 1919. Thus, under Stinson, judicial scrutiny
of the Commission's commentary is limited to ensuring consistency
with federal statutes (including, but not restricted to, the
Commission's enabling statute), and with the guidelines
themselves.
These two lines of inquiry proceed along different
analytic paths. When a court ventures to determine whether the
Commission's commentary tracks the guidelines, the degree of
deference is at its zenith. In this context, commentary is not
merely the end product of delegated authority for rulemaking,
but, rather, "explains the guidelines and provides concrete
guidance as to how even unambiguous guidelines are to be applied
in practice." Id. at 1918. Unless the commentary is a palpably
erroneous rendition of a guideline, it merits respect. See id.
at 1919; Piper, 35 F.3d at 617.
The determination of whether the guidelines are
consistent with positive statutory law touches a more vulnerable
spot. That inquiry implicates the traditional process of
reviewing agency rules typified by the Supreme Court's watershed
opinion in Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Thus, while the Court has
warned that Chevron does not provide an apt analogy for the
process of reviewing the relationship between commentary, on the
one hand, and guidelines, on the other hand, see Stinson, 113 S.
Ct. at 1918, we believe that Chevron deference is the proper
criterion for determining whether a guideline (or, for that
12
matter, commentary that suggests how a guideline should be read)
contravenes a statute. The Chevron two-step approach fits that
type of inquiry like a glove.6 See Chevron, 467 U.S. at 842-43
(describing two-step test).
Applying this methodology here is not without
complications. We limit our inquiry to the fit (or lack of fit)
between the Career Offender Guideline as explicated in Amendment
506 and the applicable statute, 28 U.S.C. 994(h).7 In that
statute, Congress directed the Commission to ensure that certain
recidivists receive sentences "at or near the maximum." The
Career Offender Guideline represents the Commission's response to
this directive. See U.S.S.G. 4B1.1, comment. (backg'd).
Because the Commission's understanding of its statutory mandate
must be measured against the Chevron benchmark, the inquiry
follows a familiar format:
When a court reviews an agency's
construction of the statute which it
administers, it is confronted with two
6We note in passing the suggestion by some scholars that
Stinson implies an extraordinarily deferential standard of review
for the entire process of evaluating guideline commentary. On
this view, commentary should be honored unless it constitutes a
plainly erroneous interpretation either of a guideline or of a
statute. See 1 Kenneth Culp Davis and Richard J. Pierce, Jr.,
Administrative Law Treatise 6.10, at 284 (3d ed. 1994). We
need not probe this possibility today. Because Amendment 506
passes muster under the Chevron test, it would clearly pass
muster if we were to employ the more deferential test suggested
by Professors Davis and Pierce.
7Because the government does not contend that Amendment 506
is inconsistent with the guideline itself, we eschew any
discussion of that point. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir.) (explaining that issues not briefed and argued
are deemed abandoned), cert. denied, 494 U.S. 1082 (1990).
13
questions. First, always, is the question
whether Congress has directly spoken to the
precise question at issue. If the intent of
Congress is clear, that is the end of the
matter . . . . If, however, the court
determines Congress has not directly
addressed the precise question at issue, the
. . . question for the court is whether the
agency's answer is based on a permissible
construction of the statute.
Chevron, 467 U.S. at 842-43; accord Strickland v. Commissioner,
Me. Dep't of Human Servs., 48 F.3d 12, 16 (1st Cir.), cert.
denied, 116 S. Ct. 145 (1995).
These appeals focus on a single sentence that appears
in 28 U.S.C. 994(h), a sentence that requires the Commission to
adopt guidelines "that specify a sentence to a term of
imprisonment at or near the maximum term authorized for [certain]
categories of defendants." This problematic sentence presents
three issues of statutory interpretation, necessitating two
distinct iterations of the Chevron standard. The first
application combines two issues; it concerns the explication of
the word "maximum" as that word is used in section 994(h) and,
concomitantly, the meaning of the word "categories" as used
therein. The second occasion for Chevron analysis involves an
exegesis of the phrase "at or near" as used in the same sentence.
The two problems are interrelated, but they are somewhat
different in nature.8
8Although we are mindful that plausible if strained
interpretations of a series of individual statutory terms might
at times lead to an impermissible overall interpretation of a
statute, that is not the case here. Whether one conducts the
ensuing analysis in one segment or two, the result is unaffected;
the simple fact of the matter is that the Commission has
14
B. The First Conundrum.
B. The First Conundrum.
In the context of section 994(h), the term "maximum" is
susceptible of divergent meanings, depending, in part, on
precisely what constitutes a "categor[y] of defendants." One
possible reading is that "categories" are composed of those
defendants charged with violations of similar statutes against
whom prosecutors have filed notices of intention to seek sentence
enhancements (e.g., all repeat offender drug traffickers against
whom the government has filed sentence-enhancing informations
under 21 U.S.C. 851(a)(1)). On this view, the relevant
statutory maximum for any such defendant would be the enhanced
statutory maximum (ESM) applicable to repeat offenders. See 21
U.S.C. 841(b)(1), 851(a)(1). But this reading is not
linguistically compelled. The word "categories" plausibly can be
defined more broadly to include all offenders (or all repeat
offenders) charged with transgressing the same criminal statute,
regardless of whether the prosecution chooses to invoke the
sentence-enhancing mechanism against a particular defendant
(e.g., all drug traffickers, or all repeat offender drug
traffickers, who are charged with violating 21 U.S.C.
841(a)(1)). On this view, the word "maximum" refers to the
unenhanced statutory maximum (USM), see 21 U.S.C. 841(b)(1),
developed a reasonable interpretation of the vague and ambiguous
language of section 994(h). That said, we employ a piecemeal
approach here, as we believe it better illustrates that U.S.S.G.
4B1.1, as interpreted by the amended commentary, is a
permissible construction of Congress's directive that career
offenders be sentenced "at or near the maximum term authorized."
15
since this represents the highest possible sentence applicable to
all defendants in the category.9
Since the sentencing guidelines must comport with such
specific statutory directives as Congress has ordained, see
United States v. Saccoccia, 58 F.3d 754, 786 (1st Cir. 1995) ("It
is apodictic that the sentencing guidelines cannot sweep more
broadly than Congress' grant of power to the Sentencing
Commission permits."), the question becomes whether Congress
clearly intended to prefer one of these interpretations over the
other. The issue is not free from doubt. Several courts of
appeals have heretofore read the word "maximum" in the former
fashion (as referring to the ESM), see supra pp. 5-6, whereas the
Sentencing Commission now reads the word in the latter sense (as
referring to the USM). We proceed to test this conflict in the
Chevron crucible.
1. Step One: Congressional Intent. At the outset, we
1. Step One: Congressional Intent.
must determine whether Congress has spoken with sufficient
clarity to foreclose alternative interpretations. Statutory
construction always starts and sometimes ends with the
statute's text. Here, we find Congress's handiwork opaque. The
problem is not ambiguity in definition. Rather, it is simply
unclear from the bare language of the law which maxima and what
categories Congress had in mind when it contrived section 994(h).
9The relevance of this somewhat arid discussion will become
more apparent in Part III(C), infra, when the need arises to
determine the extent to which sentences are "at or near the
maximum."
16
The earlier cases relating the word "maximum" to the
ESM do not dictate a contrary conclusion. Those courts envisaged
their primary task as interpreting the meaning of the guidelines,
see, e.g., Garrett, 959 F.2d at 1010 (concluding that "the
Guidelines require us to define the [term] Offense Statutory
Maximum" in a particular way); Amis, 926 F.2d at 329 (stating the
court's task as "merely [to] determine the `Offense Statutory
Maximum' as used in guidelines 4B1.1"), and they did so without
the aid of Amendment 506. Although two courts suggested that
reading "Offense Statutory Maximum" as referring to the ESM would
better effectuate congressional intent, see Garrett, 959 F.2d at
1010; Sanchez-Lopez, 879 F.2d at 559, neither of these courts
held or even hinted that section 994(h) thwarted a different
reading. We have found no indication that any of the courts
which scrutinized the unexplicated version of U.S.S.G. 4B1.1
detected the kind of clear, overarching congressional directive
that would suffice to abort a Chevron inquiry.
Even were we to believe otherwise, two abecedarian
principles of statutory construction nonetheless would counsel
continuation of the Chevron journey. First, courts that read a
statute without the aid of an authoritative interpretation by the
agency charged with administering the statute must reexamine
their reading if the agency later speaks to the point. See
International Ass'n of Bridge, Structural, and Ornamental
Ironworkers, Etc. v. NLRB, 946 F.2d 1264, 1271 (7th Cir. 1991).
Second, an agency that is charged with administering a statute
17
remains free to supplant prior judicial interpretations of that
statute as long as the agency interpretation is a reasonable
rendition of the statutory text. See id. at 1270; see also Rust
v. Sullivan, 500 U.S. 173, 186-87 (1991) (holding that an agency
is free to reverse its own previous interpretation of a statute,
subject to the same condition); Strickland, 48 F.3d at 318
(same). Hence, we trek onward.
When the plain meaning of a law is not readily apparent
on its face, the next resort is to the traditional tools of
statutory construction reviewing legislative history and
scrutinizing statutory structure and design in an effort to
shed light on Congress's intent.10
As originally envisioned, section 994(h) would have
placed the onus of imposing sentences "at or near the maximum"
directly on sentencing judges. See S. Rep. No. 98-225, 98th
Cong., 2d Sess. 175 (1984), reprinted in 1984 U.S.C.C.A.N. 3182,
3358. The provision's author, Senator Kennedy, devised it as a
means of putting "[c]areer criminals . . . on notice that their
chronic violence will be punished by maximum prison sentences."
10We acknowledge the ongoing debate over the propriety,
under Chevron, of going beyond plain meaning analysis and
resorting to the traditional tools of statutory construction in
search of a clear congressional directive. Compare INS v.
Cardoza-Fonseca, 480 U.S. 421, 446-48 (1987) (suggesting that,
under the first prong of Chevron, courts should employ
"traditional tools of statutory construction") with id. at 454
(Scalia, J., concurring) (rejecting this statement). This court
has followed Chevron, 467 U.S. at 843 n.9, and employed the full
tool chest of statutory construction implements in attempting to
detect clear congressional meaning. See, e.g., Strickland, 48
F.3d at 19. We continue that practice in this case.
18
128 Cong. Rec. 26,518 (1982). But that proposal did not take
wing; the Senate Judiciary Committee instead approved section
994(h) in its current incarnation. This version, unlike the
rejected proposal, addresses its command to the Commission, not
the courts. The Committee obviously believed that this change
would better "assure consistent and rational implementation of
the Committee's view that substantial prison terms should be
imposed on repeat violent offenders and repeat drug offenders."
S. Rep. No. 98-225, supra, 1984 U.S.C.C.A.N. at 3358. We think
that this history confirms that (1) in creating the Commission,
Congress had an overall goal of curtailing judicial discretion in
sentencing matters; and (2) in enacting section 994(h), Congress
had a specific intent to let the Commission (as opposed to
individual judges) determine the best method for assuring that
career offenders would receive stiff prison sentences. Past this
point, the legislative archives offer no clue as to whether
Congress ever recognized either the potential ambiguity of the
term "maximum" or the uncertainty that might attach to the
question of what constitutes a category of offenders.
Finding the relevant legislative history to be no
clearer than the statute's text, we look to the enabling
legislation and the overall structure of the Sentencing Reform
Act for what insights they may afford. Superficially, these
considerations seem to support the government's position that the
"maximum" is the ESM. Reading "categories" narrowly enough to
distinguish between offenders on the basis of whether the United
19
States Attorney has filed sentence-enhancing informations yields
potentially harsher sentences in those cases, thereby promising
more stringent punishment for selected repeat offenders. That
narrow reading also preserves the distinction between offenders
who are subject to sentence enhancements based on prior criminal
activity and those who are not a distinction that Congress
arguably delivered into the hands of prosecutors. See, e.g., 21
U.S.C. 841(b)(1), 851(a)(1).
Although these asseverations put the government's best
foot forward, they are at most debating points in relation to the
problem at hand. They neither indicate that Congress has spoken
directly to the precise issue nor reflect a sufficiently clear
congressional intent to circumscribe the Commission's
interpretive powers. Indeed, the arguments are circular; the
touted advantages of the government's reading appear to be
advantageous only if one assumes the conclusion that the
government is struggling to prove.
We will not add hues to a rainbow. Because we find no
clear congressional directive regarding the meaning of the term
"maximum" as that term is used in section 994(h), our inquiry
proceeds to the second half of the Chevron two-step.
2. Step Two: Plausibility of the Commission's
2. Step Two: Plausibility of the Commission's
Interpretation. Where, as here, a statute is not clear, an
Interpretation.
interpretation by the agency that administers it will prevail as
long as the interpretation is reasonable under the statute. See
Strickland, 48 F.3d at 21. We believe that the Commission's act
20
in defining "maximum" to refer to the unenhanced maximum term of
imprisonment the USM furnishes a reasonable interpretation of
section 994(h). The statute explicitly refers to "categories of
defendants," namely, repeat violent criminals and repeat drug
offenders, and does not suggest that each individual offender
must receive the highest sentence available against him. The
Career Offender Guideline, read through the prism of Amendment
506, adopts an entirely plausible version of the categorical
approach that the statute suggests. Unless one is prepared to
write off Congress's choice of the word "categories" as some sort
of linguistic accident or awkward locution and we are not so
inclined this approach is eminently supportable.
Our dissenting colleague decries the Commission's
categorical approach. He states that, indeed, "the phrase
`categories of defendants' is perhaps better understood . . . as
a 'linguistic accident or an awkward locution.'" Post at 47. To
the contrary, this conclusion is foreclosed by, inter alia, the
following explicit language in 18 U.S.C. 3553:
(a) . . . The court, in determining the
particular sentence to be imposed, shall
consider
. . . .
(4) the kinds of sentence and the
sentencing range established for
(A) the applicable category of
offense committed by the applicable category
of defendant as set forth in the guidelines
issued by the Sentencing Commission pursuant
to section 994(a)(1) of title 28 . . . .
(Emphasis supplied).
21
Further inescapable evidence that the term "categories
of defendants" is neither an accidental nor a recent
congressional usage, see post at 47-48, appears in 28 U.S.C.
994(b)(1):
The Commission, in the guidelines promulgated
pursuant to subsection (a)(1), shall, for
each category of offense involving each
category of defendant, establish a sentencing
range that is consistent with all pertinent
provisions of title 18, United States Code.
(Emphasis supplied).
Thus, rather than a recent slip of the legislative pen,
the term "categories of defendants," as used in section 994(h),
originated in the carefully incubated legislation mandating a
guideline sentencing system that was to be promulgated and
monitored by the Sentencing Commission, see 28 U.S.C. 994, and
implemented by the courts, see 18 U.S.C. 3553. Among the more
important innovations attending the establishment of the new
guideline sentencing system were certain restrictions on judicial
consideration and weighting of individualized sentencing factors,
see, e.g., 18 U.S.C. 3553(a)(4), (b), (c); hence, the possibly
"awkward," but nonetheless plainly intended, usage "categories of
defendants."
Given the identical statutory phrasing consistently
employed by Congress in titles 18 and 28, as well as their
coordinate design, we are unable to endorse the unsupported
statutory interpretation advanced in dissent. Rather, we must
follow the canons of statutory interpretation which demand that a
court give meaning to each word and phrase when explicating a
22
statute, and read the component parts of a legislative enactment
as a unified whole. See United Technologies Corp. v. Browning-
Ferris Indus., Inc., 33 F.3d 96, 101 (1st Cir. 1994), cert.
denied, 115 S. Ct. 1176 (1995); United States v. Ven-Fuel, Inc.,
758 F.2d 741, 751-52 (1st Cir. 1985); see also Greenwood Trust
Co. v. Massachusetts, 971 F.2d 818, 827 (1st Cir. 1992) ("It is .
. . a general rule that when Congress borrows language from one
statute and incorporates it into a second statute, the language
of the two acts should be interpreted the same way."), cert.
denied, 113 S. Ct. 974 (1993).
Moreover, the Sentencing Reform Act places many
restraints on the Commission apart from those embodied in section
994(h). The most salient of these restraints is the requirement
of sentencing consistency. See 28 U.S.C. 994(f). The
Commission adverted to this concern in promulgating Amendment
506, see U.S.S.G., App. C, Amend. 506, at 409 (Nov. 1994), and
responded to it by taking a categorical approach. Similarly,
Congress's efforts to eliminate sentencing disparities can be
reconciled with section 994(h)'s exhortation for maximal
sentencing only if one hears that exhortation as being addressed
to categories of defendants. In the final analysis, the
Commission remains fully faithful to the welter of congressional
commands by choosing to treat repeat offenders as broad
categories of defendants and thereby harmonizing the call for
stringent punishment of recidivists with the call for consistent,
non-disparate sentences.
23
The government lodges two further objections to the
plausibility of the Commission's rationale. First, it contends
that Congress, by means of such statutes as 21 U.S.C.
851(a)(1), intended to give prosecutors commodious discretion
over the potential sentences of repeat offenders, and that
Amendment 506 frustrates this intent. Though the government may
well be correct in asserting that Congress did not create the
Sentencing Commission with an eye toward eradicating
prosecutorial abuses, it does not follow that Congress strove
affirmatively to give prosecutors the keys to the kingdom.11
What is more, it makes very little sense to impute to Congress a
yearning for unbridled prosecutorial discretion when two major
goals of sentencing reform were to "assure that sentences are
fair both to the offender and to society," S. Rep. No. 98-225,
supra, 1984 U.S.C.C.A.N. at 3222, and to "avoid[] unwarranted
sentencing disparities among defendants with similar records who
have been found guilty of similar criminal conduct." 28 U.S.C.
991(b)(1)(B).
The government's remaining objection to the
Commission's reading of the word "maximum" is that this reading
prescribes an identical sentencing range for repeat offenders
11The government makes much of the fact that the Senate
Judiciary Committee, in creating the Commission, disclaimed any
fear that the guidelines would increase prosecutors' discretion
to reduce sentences through plea bargains. See S. Rep. No. 98-
225, supra, 1984 U.S.C.C.A.N. at 3246. But Congress's
explanation (which stressed that the Commission could guard
against this phenomenon because it was empowered to issue policy
statements concerning the review of plea bargains, see id.), is
indicative of the latitude it intended to give to the Commission.
24
whether or not the prosecution has sought to obtain sentence
enhancements. This reading, the government says, effectively
eliminates prosecutorial enhancements and arrogates unto the
Commission the authority that Congress explicitly vested in the
United States Attorney. We find this polemic unpersuasive.
We take 21 U.S.C. 841(b)(1) as our point of
departure. This section establishes unenhanced maximum terms
applicable to all violators, enhanced maximum terms applicable to
certain repeat offenders, and, in some cases, mandatory minimum
terms of incarceration (enhanced or unenhanced). It is
elementary that any guideline which prescribes a sentence that
falls within these parameters does not conflict with the statute.
What remains is a policy choice, and the Commission, by opting to
emphasize the USM, has done no more than exercise its prerogative
to make precisely this kind of policy choice. See Chevron, 467
U.S. at 864.
Furthermore, the choice is not unreasonable. The root
purpose of the Career Offender Guideline, U.S.S.G. 4B1.1, is to
enhance repeat offenders' sentences. The revamped guideline not
only accomplishes that purpose but also coheres with Congress's
discernible aims in making enhanced penalties available under
section 841. While that statute establishes a possible enhanced
penalty for repeat offenders if prosecutors choose, the Career
Offender Guideline, as filtered through Amendment 506, ensures an
actual enhancement of the TOL for all repeat offenders. This
critical distinction belies the government's lament that the
25
amendment sounds a death knell for enhancements required by
statute. The guideline, section 4B1.1, as explicated by
Amendment 506, departs from the statute, section 841, only in the
sense that the former seeks to enhance the sentences of a wider
class of recidivists. This departure lacks significance. For
purposes of testing the fidelity of the sentencing guidelines'
career offender provisions to the statutory scheme, it is
irrelevant that some sentences beyond those mandated by Congress
are also enhanced.
When all is said and done, the Commission's decision to
treat the word "maximum" as meaning the unenhanced statutory
maximum applicable to a category of offenders, broadly defined,
is a plausible rendition of section 994(h). We must honor the
Commission's definition.
C. The Second Conundrum.
C. The Second Conundrum.
As we have previously explained, section 994(h)
contains a specific directive that, in the case of career
offenders, sentences ought to be "at or near the maximum term
authorized." The government contends that, regardless of how the
word "maximum" is construed, Amendment 506 is invalid because it
fails to produce sentences that are "at or near" any conceivable
maximum. As before, we measure this contention by wielding the
Chevron yardstick.
1. Step One: Congressional Intent. At the risk of
1. Step One: Congressional Intent.
belaboring the obvious, we start from the premise that "at or
near" is neither an exact nor a self-defining term. Section
26
994(h) is silent as to how "near" sentences must be to the
maximum, and the legislative history is singularly unhelpful on
this point. Especially since we must concentrate on the USM in
calculating how "near" the Commission's sentencing ranges are to
the statutory goal, see supra Part III(B), we are unable to
divine a sufficiently clear expression of congressional intent.
Thus, we quickly move to the second and decisive portion of
the Chevron query.
2. Step Two: Plausibility of the Commission's
2. Step Two: Plausibility of the Commission's
Interpretation. The question of plausibility reduces to whether
Interpretation.
the Career Offender Guideline, as now interpreted by the
Commission, sufficiently ensures sentences that satisfy a
reasonable construction of "at or near the maximum." In this
setting, deference to the Commission is especially appropriate.
"At or near" is an inherently variable phrase. In speaking with
a Texan, one might say that Providence is "near" Boston, but it
is doubtful if that description would (or could) be employed in
speaking with a resident of, say, Cambridge or Cranston. In all
events, the phrase "at or near," as employed in this statute,
suggests a continuum of various sentences, each relatively
further from, or closer to, the statutory maximum.
It is also important to recognize that the career
offender enhancement is not the end point of the sentencing road
and, by itself, does not dictate individual defendants'
sentences. Once the "Offense Statutory Maximum" derived from the
Career Offender Guideline functions to yield a defendant's TOL,
27
the sentencing court must then make a myriad of individualized
adjustments to the offense level, up or down, for factors such as
acceptance of responsibility see U.S.S.G. 3E1.1, role in the
offense, see U.S.S.G. 3B1.1, 3B1.2, and the like. It is only
when all the component parts of the sentencing equation are
pulled together that the court can ascertain the range of
permissible sentences and, hence, settle upon the actual
sentence. Even then, the court retains authority, at least in
certain circumstances, to depart downward if a particular
defendant furnishes substantial assistance in the investigation
or prosecution of another person who has committed an offense,
see 18 U.S.C. 3553(e); U.S.S.G. 5K1.1, or to depart in either
direction if aggravating or mitigating circumstances warrant, see
18 U.S.C. 3553(b); U.S.S.G. 5K2.0. Many of these prospective
adjustments derive from explicit statutory commands. See, e.g.,
28 U.S.C. 994(n) (directing the Commission to create a
mechanism through which defendants will be rewarded for rendering
substantial assistance).
We believe that this reality has significant
implications for the question at bar. First and foremost, given
the labyrinthine way in which repeat offenders' actual sentences
are constructed, heightened deference to the Commission's slant
on the "at or near" language is very desirable. After all,
respect for agency interpretations is "particularly appropriate
in complex and highly specialized areas where the regulatory net
has been intricately woven," Massachusetts Dep't of Educ. v.
28
United States Dep't of Educ., 837 F.2d 536, 541 (1st Cir. 1988)
(citation and quotation marks omitted), and the sentencing
guidelines constitute a classic example of such a web. In other
words, due to the interstitial nature of the career offender
calculation, a reviewing court should be generous in assessing
the reasonableness of the Commission's approximation of how
"near" is "near."
The fact that the career offender adjustment does not
itself directly determine any particular defendant's actual
sentence has other implications as well. Unless one is ready to
place any and all downward adjustments beyond a repeat offender's
reach and even the government does not espouse so extreme a
position it is surpassingly difficult (if not impossible) to
expect the Commission to write a rule which ensures that career
offenders will invariably receive sentences "at or near" each
individual's ESM. Once a sentencing court has made such downward
adjustments, it would be surprising if many defendants' sentences
came very near to the statutorily prescribed "maximum" penalties
that are theoretically available (however the word "maximum" may
be defined). By like token, the very real possibility that
upward adjustments to the TOL may make career offenders'
sentences more severe suggests that room should be left for play
in the joints as the Commission implements the "at or near"
language.
Mindful, as we are, of these complexities, we think
that Amendment 506 passes muster. The sentences available under
29
the newly explicated Career Offender Guideline constitute a
substantial proportion of the possible sentences permitted by
statute. We can conveniently illustrate the point by reference
to the four defendants who are involved in these appeals. By
operation of Amendment 506, defendants like LaBonte, Hunnewell,
and Dyer now face maximum sentences of 262 months (the top of the
recalculated GSR) before taking into account any individualized
adjustments. A 262-month sentence represents 109.2% of the USM
for these defendants' offense of conviction.12 On the same
basis, a defendant like Piper now faces a maximum sentence of 365
months (76% of the applicable USM). Examining the gamut of
possible sentences available against each defendant under
Amendment 506, the median sentence in the range applicable to
LaBonte, Hunnewell, and Dyer (236 months) constitutes 98.3% of
the USM, while the median sentence in the range pertinent to
Piper (294.5 months) constitutes 61.4% of the USM. Under any
suitable definition of the word "near," we believe that the
Commission could reasonably conclude that these percentages
ensure sentences sufficiently close to the USM and sufficiently
harsh to provide a fair approximation of Congress's desire to
see that career offenders, as a group, receive maximal terms of
imprisonment.
IV. THE APPLICATION OF AMENDMENT 506
IV. THE APPLICATION OF AMENDMENT 506
12We think that this calculation graphically illustrates the
fallacy underlying our dissenting brother's lament that Amendment
506, "effectively nullifies the criminal history enhancements
carefully enacted in statutes like 21 U.S.C. 841." See post at
42.
30
Having determined that Amendment 506 is a lawful
exercise of the Sentencing Commission's powers, we now address
the motions for resentencing.
The principles governing motions to resentence based on
newly emergent guideline amendments can be compactly catalogued.
When the Commission amends the guidelines (or its interpretation
of the guidelines) in a manner that favors defendants, it may
invite retrospective application of the new interpretation.13
In such an event, a defendant who believes that the amendment, if
in force earlier, would have reduced his GSR may move for
resentencing. The district court, "after considering the factors
set forth in section 3553(a) to the extent that they are
applicable," may reduce the sentence "if such a reduction is
consistent with the applicable policy statements issued by the
Sentencing Commission." 18 U.S.C. 3582(c)(2).14 The law
permits, but does not require, the district court to resentence
13For this purpose, an "amendment" differs from a
"clarification." Clarifications explain earlier editions of the
sentencing guidelines; they do not change those provisions.
Because they are retrospective by nature, they do not require any
special retroactivity designation. See U.S.S.G. 1B1.11(b)(2);
see also United States v. LaCroix, 28 F.3d 223, 227 n.4 (1st Cir.
1994). In contrast, amendments do change prior guidelines and,
if they are to be given retroactive effect, the Commission must
so specify. See 28 U.S.C. 994(u); U.S.S.G. 1B1.10. This
opinion deals exclusively with amendments as opposed to
clarifications.
14The factors set forth in section 3553(a), insofar as they
are arguably applicable to any of the instant defendants, include
the nature and circumstances of the offense, the defendant's
criminal past, the GSRs, the Commission's policy statements, and
the necessity of avoiding unwarranted sentencing disparities
among similarly situated defendants. See 18 U.S.C. 3553(a).
31
such a defendant. See United States v. Connell, 960 F.2d 191,
197 (1st Cir. 1992). Because this decision is committed to the
trial court's discretion, the court of appeals will interfere
only if the record reveals a palpable abuse of that discretion.
See United States v. Pardue, 36 F.3d 429, 430 (5th Cir.), cert.
denied, 115 S. Ct. 1969 (1994); United States v. Telman, 28 F.3d
94, 96-97 (10th Cir. 1994); see also United States v. Twomey, 845
F.2d 1132, 1134 (1st Cir. 1988). It is plain that, under this
paradigm, most resentencing battles will be won or lost in the
district court, not in an appellate venue.
With this brief preface, we reach the individual
defendants' cases.
A. George LaBonte.
A. George LaBonte.
In LaBonte's case, the district court upheld Amendment
506 and applied it to reduce the defendant's sentence. See
LaBonte, 885 F. Supp. at 24. Although the government appeals
from the reconfigured sentence, it challenges only the lower
court's validation of the reinterpreted Career Offender
Guideline. Because the government has neither asserted nor
argued a claim that the court abused its considerable discretion
in reducing LaBonte's sentence, we must affirm the judgment. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert.
denied, 494 U.S. 1082 (1990).
B. David E. Piper.
B. David E. Piper.
In Piper's case, the district court upheld Amendment
32
506 but refused to mitigate the original sentence. Piper
proffers a potpourri of protests to the court's ruling. Only two
of them warrant discussion.
First, Piper suggests that under 18 U.S.C. 3582(c)(2)
a district court may only decide whether the policies underlying
an amendment would be served by a lessened sentence. Piper
misreads the statute: it authorizes the district judge to
resentence when resentencing is consistent with the policies
underlying the amendment, but it neither compels the judge to do
so nor limits his inquiry to the consistency question. Since the
language is precatory rather than mandatory, the district court
need not even consider the policy statements supporting an
amendment if, "after considering the factors set forth in
3553(a) to the extent they are applicable," 18 U.S.C.
3582(c)(2), the court prefers to stand by the existing sentence.
Piper's next remonstrance suggests that the district
court failed to reweigh the factors delineated in section
3553(a), see supra note 14, and that, therefore, the court's
decision cannot constitute a proper exercise of judicial
discretion. The problem with this remonstrance lies in its
premise. The district judge presided over Piper's case from the
outset. He possessed great familiarity with the odious nature of
the offense of conviction (leading a "commando-style" raid on a
family's home while heavily armed, and searching for a stash of
illegal drugs supposedly secreted there). Having sentenced Piper
originally, he knew the intimate details of Piper's criminal
33
history. At the hearing on the motion to resentence, the judge
listened to arguments that zeroed in on the very factors that
Piper now claims were overlooked.
In the end, Piper's argument invites us to elevate form
over substance. We decline the invitation. Where, as here, it
is clear that the sentencing judge has considered the section
3553(a) factors, we will not interpose a further requirement that
he make explicit findings as to each and all of those factors.
See United States v. Savoie, 985 F.2d 612, 618 (1st Cir. 1993)
(holding that a district court need not make explicit findings
regarding the statutory factors relevant to restitution orders
"so long as the record on appeal reveals that the judge made
implicit findings or otherwise adequately evinced his
consideration of those factors"); United States v. Wilfred Am.
Educ. Corp., 953 F.2d 717, 720 (1st Cir. 1992) (similar, in
respect to fines); see generally United States v. Tavano, 12 F.3d
301, 307 (1st Cir. 1993) ("As a general rule, a trial court
lawfully may make implicit findings with regard to sentencing
matters . . . ."). On this record, it strains credulity to
suggest that the district court neglected to take account of
statutorily required items in its decisionmaking process.
C. Alfred Lawrence Hunnewell.
C. Alfred Lawrence Hunnewell.
In Hunnewell's case, the district court held that
Amendment 506 was invalid, and refused to apply it for that
reason. Having concluded that the lower court erred, see supra
Part III, we ordinarily would remand for further proceedings.
34
But the government has other ideas; it asserts that the district
court's order should be construed as an exercise of discretion,
and it asks us to affirm the denial of Hunnewell's resentencing
request on this basis.
After a painstaking examination of the record, we
reject the government's asseveration. Calling a horse a cow does
not yield milk. Indeed, the government tacitly concedes the
weakness of its position by forgoing developed argumentation on
this point and instead regaling us with the reasons why the
district could (or should) have declined to extend an olive
branch to Hunnewell. The fact remains, however, that the
discretion conferred by 18 U.S.C. 3582(c)(2) is for the
district court not this court to exercise in the first
instance. Consequently, the denial of Hunnewell's motion for
resentencing must be set aside and the cause remanded for further
consideration of that motion.
Before leaving Hunnewell's situation, we pause to
comment on the government's suggestion that, because Hunnewell's
original sentence was still within the post-amendment GSR (albeit
barely), we need not afford the district court an opportunity to
decide whether to resentence him.15
In its haste to validate this argument, the government
distorts our holding in United States v. Ortiz, 966 F.2d 707 (1st
15The district court initially computed a GSR of 188-235
months, and sentenced Hunnewell to serve 188 months in prison.
Applying Amendment 506 to Hunnewell's case yields a revised GSR
of 151-188 months. See supra note 4.
35
Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993). In Ortiz, we
explained that,
where it appears reasonably likely that the
district judge selected a sentence because it
was at or near a polar extreme (whether top
or bottom) of the guideline range that the
judge thought applicable, the court of
appeals should vacate the sentence and remand
for resentencing if it is determined that the
court erred in its computation of the range,
notwithstanding that there may be an overlap
between the "right" and "wrong" sentencing
ranges sufficient to encompass the sentence
actually imposed.
Id. at 717-18. So it is here. In Hunnewell's initial sentencing
hearing, both the government and the defense asked the court to
impose a sentence at the bottom of the GSR. The court obliged.
Giving vitality to the foundational principle on which Ortiz
rests, we cannot be confident that, faced with a different range
of options, the district court's choice will remain the same.
D. Stephen Dyer.
D. Stephen Dyer.
Since Dyer's and Hunnewell's cases are virtually on all
fours vis-a-vis the posture of the resentencing issue, we need
not linger. For the reasons already expressed, see supra Part
IV(C), Dyer is entitled to have the district court address the
merits of his request for resentencing.
V. THE SECTION 2255 PETITION
V. THE SECTION 2255 PETITION
Dyer also appeals from the district court's summary
dismissal of his section 2255 petition. A district court may
dismiss a section 2255 petition without holding an evidentiary
hearing if it plainly appears on the face of the pleadings that
the petitioner is not entitled to the requested relief, or if the
36
allegations, although adequate on their face, consist of no more
than conclusory prognostications and perfervid rhetoric, or if
the key factual averments on which the petition depends are
either inherently improbable or contradicted by established facts
of record. See United States v. McGill, 11 F.3d 223, 225 (1st
Cir. 1993); see also 28 U.S.C. 2255 (explaining that a hearing
is unnecessary when the record "conclusively shows that the
prisoner is entitled to no relief").
We believe that Dyer's petition is both generally and
specifically defective. Taking first things first, the district
court noted that Dyer had not presented his factual allegations
under oath, and that, therefore, he was not entitled to the
relief that he sought. We agree.
Dyer's sworn petition contained nothing more than the
bare statement that he received ineffective assistance of
counsel. While some additional allegations were set forth in
Dyer's memorandum of law, those allegations did not fill the
void. A habeas application must rest on a foundation of factual
allegations presented under oath, either in a verified petition
or supporting affidavits. See, e.g., Rule 2, Rules Governing
Section 2255 Proceedings, 28 U.S.C. 2255. Facts alluded to in
an unsworn memorandum will not suffice. See Barrett v. United
States, 965 F.2d 1184, 1195 (1st Cir. 1992); Dalli v. United
States, 491 F.2d 758, 760 (2d Cir. 1974).
Even were we prepared to overlook this fatal
shortcoming, the petitioner would not find surcease. We review
37
claims of constitutionally deficient performance on counsel's
part under the familiar test of Strickland v. Washington, 466
U.S. 668 (1984). According to this regime, a criminal defendant
who alleges ineffective assistance must demonstrate that his
attorney's performance was unreasonably deficient, and that he
was prejudiced as a result of it. See Scarpa v. DuBois, 38 F.3d
1, 8 (1st Cir. 1994), cert. denied, 115 S. Ct. 940 (1995). When,
as in this case, a defendant has pleaded guilty to a charge, the
prejudice prong of the test requires him to show that, but for
his counsel's unprofessional errors, he probably would have
insisted on his right to trial. See Hill v. Lockhart, 474 U.S.
52, 59 (1985).
In light of these authorities, we think that the
district court appropriately dismissed Dyer's habeas petition.
In his brief, Dyer contends, inter alia, that his trial attorney
assured him that his sentence would be no more than eighteen
months, and that there was simply "no way" that he would be
sentenced as a career offender pursuant to U.S.S.G. 4B1.1. Even
a generous reading of this claim leaves no doubt that Dyer failed
adequately to allege any cognizable prejudice. An attorney's
inaccurate prediction of his client's probable sentence, standing
alone, will not satisfy the prejudice prong of the ineffective
assistance test. See Knight v. United States, 37 F.3d 769, 774
(1st Cir. 1994). Similarly, Dyer's self-serving statement that,
but for his counsel's inadequate advice he would have pleaded not
guilty, unaccompanied by either a claim of innocence or the
38
articulation of any plausible defense that he could have raised
had he opted for a trial, is insufficient to demonstrate the
required prejudice. See United States v. Horne, 987 F.2d 833,
835 (D.C. Cir.), cert. denied, 114 S. Ct. 153 (1993); United
States v. Arvanitis, 902 F.2d 489, 494 (7th Cir. 1990).
To add the finishing touch, the plea agreement that
Dyer signed stated in so many words that he faced a maximum
possible sentence of thirty years' imprisonment. The district
court reinforced this warning during the plea colloquy, and
explained to Dyer that his sentence could not be calculated with
certitude until the probation office prepared the presentence
investigation report. In response to questioning from the bench,
Dyer acknowledged his understanding that even if he received a
harsher-than-expected sentence, he would remain bound by his
plea. And Dyer also assured the court that no one had made any
promises to him anent the prospective length of his sentence.
Thus, regardless of his counsel's performance, Dyer was well
aware of the full extent of his possible sentence when he decided
to forgo a trial and enter a guilty plea.
Under the applicable constitutional standard, a failure
of proof on either prong of the Strickland test defeats an
ineffective-assistance-of-counsel claim. See Scarpa, 38 F.3d at
8-9. Since we find no cognizable prejudice, we need not
determine what Dyer's trial attorney did or did not tell him, or
whether the attorney lacked familiarity with the sentencing
guidelines to such an extent as to render his performance
39
constitutionally infirm.
We have also considered Dyer's other assignments of
error. His plaint that the district court acted precipitously in
dismissing the petition without first pausing to convene an
evidentiary hearing is meritless. See, e.g., McGill, 11 F.3d at
226; United States v. Butt, 731 F.2d 75, 80 n.5 (1st Cir. 1984).
His remaining claims are unworthy of detailed discussion. The
lower court did not blunder in summarily dismissing Dyer's
application for federal habeas relief.
VI. CONCLUSION
VI. CONCLUSION
We need go no further. For the reasons discussed
herein, we affirm the judgments in the LaBonte and Piper cases
(Nos. 95-1538 and 95-1226, respectively); remand for possible
resentencing in the Hunnewell case (No. 95-1101); and affirm the
judgment in the Dyer case (No. 95-1264) in part, but vacate it in
part and remand for possible resentencing. We intimate no view
as to how the district court should resolve the remaining
resentencing questions.
So Ordered.
So Ordered.
Separate Opinion Follows
40
STAHL, Circuit Judge, (concurring in part and
STAHL, Circuit Judge, (concurring in part and
dissenting in part). With all due respect, I disagree with
dissenting in part).
my colleagues that the phrase "maximum term authorized" in 28
U.S.C. 994(h) supports more than one plausible
interpretation. In endeavoring to set forth an analytically
sound basis for their decision, my colleagues find ambiguity
where none exists. After careful review, I believe that,
when applied to defendants subject to special enhanced
penalty provisions, the only plausible interpretation of the
phrase "maximum term authorized" is the enhanced maximum
punishment. Furthermore, once the phrase "maximum term
authorized" is correctly read as referring in these instances
to the enhanced statutory maximum, I think it clear that the
sentencing scheme propounded by Amendment 506 does not
satisfy Congress's clear command to sentence career offenders
at or near that maximum. Accordingly, I dissent with respect
to parts I-IV.
I.
I.
In reaching their conclusion, my colleagues engage
a full-blown Chevron inquiry twice, carefully analyzing the
phrases "maximum term authorized," "categories of defendants"
and "at or near."16 On the first pass, they find,
16. 28 U.S.C. 994(h) provides:
The Commission shall assure that the
guidelines specify a sentence to a term
of imprisonment at or near the maximum
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41
depending on the meaning ascribed to the term "categories,"
that the phrase "maximum term authorized" is susceptible to
two different plausible interpretations. If the term
"categories" is defined so that it recognizes the
distinctions between defendants subject to special enhanced
penalties and those who are not, then the phrase "maximum
term authorized" must mean the enhanced statutory maximum
when referring to the former and the unenhanced statutory
term authorized for categories of
defendants in which the defendant is
eighteen years old or older and
(1) has been convicted of a felony that
is
(A) a crime of violence; or
(B) an offense described in section
401 of the Controlled Substances Act
(21 U.S.C. [ ] 841), sections
1002(a), 1005, and 1009 of the
Controlled Substances Import and
Export Act (21 U.S.C. [ ] 952(a),
955, and 959), and the Maritime Drug
Law Enforcement Act (46 U.S.C. App.
[ ] 1901 et seq.) and
(2) has previously been convicted of two
or more prior felonies, each of which is
(A) a crime of violence; or
(B) an offense described in section
401 of the Controlled Substances Act
(21 U.S.C. [ ] 841), sections
1002(a), 1005, and 1009 of the
Controlled Substances Import and
Export Act (21 U.S.C. [ ] 952(a),
955, and 959), and the Maritime Drug
Law Enforcement Act (46 U.S.C. App.
[ ] 1901 et seq.)
(Emphasis added.)
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42
maximum when referring to the latter. They define this as
the enhanced statutory maximum ("ESM") interpretation. On
the other hand, my colleagues contend, that if the term
"categories" is read more broadly such that it fails to
recognize these distinctions, then the phrase "maximum term
authorized" must mean in all cases the unenhanced statutory
maximum because that is the highest possible sentence
applicable to all defendants in the category. They define
this as the unenhanced statutory maximum ("USM")
interpretation. My colleagues then conclude that, because
both interpretations are plausible, Congress has not spoken
clearly or without ambiguity on the issue and, therefore, we
should defer to the Commission's choice between the two. I
disagree with this analysis because I do not believe that the
USM interpretation is a plausible reading of the phrase
"maximum term authorized."
Principally, I find the USM interpretation
inherently implausible because it effectively nullifies the
criminal history enhancements carefully enacted in statutes
like 21 U.S.C. 841. These statutes, to which Congress
expressly referred in the text of 994(h), provide an
intricate web of enhanced penalties applicable to defendants
who are repeat offenders or whose offenses resulted in death
or serious bodily injury. The USM interpretation, however,
completely disregards these enhanced penalties because, under
-43-
43
that interpretation, all defendants must be sentenced at or
near the unenhanced maximum whether or not the enhanced
penalties apply. Recognizing that Congress specifically
referred to these statutes in the text of 994(h), it seems
absurd to suppose that Congress did not intend to preclude
this result. A plausible reading of a statute would not
render meaningless complete sections of other statutes to
which it refers.17
The reasoning of the District of Columbia Circuit
in United States v. Garrett, 959 F.2d 1005, 1010-11 (D.C.
Cir. 1992), firmly supports this analysis. In Garrett, the
court rejected the argument that the guideline phrase
"Offense Statutory Maximum" should be read to refer to the
unenhanced statutory maximum. Id. The court explained that
such an interpretation (which I note necessarily requires
interpreting the phrase "maximum term authorized" in 994(h)
to mean the unenhanced maximum) would "thwart congressional
intent." Id. at 1011. The court reasoned that to conclude
that "Congress . . . intended to erase the statutory
distinctions among offenders based either on their past
17. The majority contends that this argument is of little
moment because a Career Offender guideline using the USM
interpretation as espoused by Amendment 506 does not
technically conflict with 21 U.S.C. 841 or the other
enhanced penalty statutes. While I agree that there may be
no technical "conflict," I hardly take that as evidence that
Congress intended to permit the Commission in interpreting
994(h) to nullify many of the special enhanced penalties.
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44
actions or on the circumstances of the offense, distinctions
carefully set forth in subsection 841(b)(1)(B) would be
senseless." Id. (emphasis added). While it is true that
Garrett involved only the interpretation of "Offense
Statutory Maximum" and did not directly consider the
statutory language, I think its analysis is informative and
applies with equal force to the question at hand. Indeed,
prior to the promulgation of Amendment 506, the Commission
defined the guideline phrase "Offense Statutory Maximum" as
equivalent to the statutory phrase "maximum term authorized."
See U.S.S.G. 4B1.1, comment. (n.2) (Nov. 1993).18
Furthermore, I believe the legislative history
strongly suggests that Congress intended "maximum term
authorized" to refer, in appropriate circumstances, to the
enhanced maximum penalty. The Senate Judiciary Committee
noted that 994(h) was enacted to replace the sentencing
provisions for "dangerous special offenders" and "dangerous
special drug offenders" provided respectively by 18 U.S.C.
3575 (repealed 1984) and 21 U.S.C. 849 (repealed 1984).
See S. Rep. 225, 98th Cong. 2d Sess. 120 (1984), reprinted in
1984 U.S.C.C.A.N. 3182, 3303. These two provisions enabled
18. Other circuits have interpreted "Offense Statutory
Maximum" similarly. United States v. Smith, 984 F.2d 1084,
1086-87 (10th Cir.) (similarly interpreting "Offense
Statutory Maximum"), cert. denied, 114 S. Ct. 204 (1993);
United States v. Amis, 926 F.2d 328, 330 (3d Cir. 1991)
(same); United States v. Sanchez-Lopez, 879 F.2d 541, 558-560
(9th Cir. 1989) (same).
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45
courts to sentence "dangerous" defendants to terms "of
imprisonment longer than that which would ordinarily be
provided." S. Rep. 225 at 117, reprinted in 1984
U.S.C.C.A.N. at 3300; see United States v. Thornley, 733 F.2d
970, 972 (1st Cir. 1984) (affirming "dangerous special
offender" sentence that exceeded the maximum prescribed
sentence for the underlying offense). A defendant was
subject to sentencing under these provisions upon, inter
alia, a finding of dangerousness. Specifically, a defendant
was considered dangerous if a term of imprisonment "longer
than the maximum provided in the statute defining the
[underlying] felony `[was] required for the protection of the
public.'" S. Rep. 225 at 117, reprinted in 1984 U.S.C.C.A.N.
at 3300 (quoting 18 U.S.C. 3575(f) and 21 U.S.C. 849(f))
(emphasis added). As this definition makes clear, the
purpose of these special offender statutes was to provide, in
appropriate circumstances, enhanced punishment beyond that
otherwise provided in the underlying statute. See, e.g.,
United States v. Sutton, 415 F. Supp. 1323, 1324 (D.D.C.
1976). This is exactly the same rationale underlying the
enhanced penalty provisions found in statutes like 21 U.S.C.
841. Because Congress intended 994(h) to address these
"same considerations," see S. Rep. 225 at 120, reprinted in
1984 U.S.C.C.A.N. at 3303, it seems reasonable to conclude
-46-
46
that Congress intended "maximum term authorized" to mean the
enhanced statutory maximum.19
In sum, because the USM interpretation would render
ineffective the enhanced penalties provided in statutes like
21 U.S.C. 841 and because the legislative history strongly
suggests that Congress intended the phrase "maximum term
authorized" to mean the enhanced statutory maximum, I believe
deferring to the Commission's interpretation of the phrase
"maximum term authorized" in 994(h) is inappropriate.
In passing, I further note that, in large part, my
colleagues' argument turns on their analysis of the term
"categories" found in 994(h). Indeed, they can only import
ambiguity into the narrow phrase "maximum term authorized,"
by first deeming the expression "categories of defendants"
fatally imprecise. Moreover, they justify the USM
interpretation by reasoning that any other interpretation
19. In concluding that the legislative history fails to
disprove the plausibility of the unenhanced interpretation,
the majority quotes the Judiciary Committee's opinion that
994(h) and 994(i) would "assure the consistent and rational
implementation of the Committee's view that substantial
prison terms should be imposed on repeat violent and repeat
drug offenders." S. Rep. No. 225 at 175, reprinted in 1984
U.S.C.C.A.N. at 3358. While this statement clearly suggests
that the Committee trusted the Commission more than
individual judges to see that recidivist defendants were
sentenced at or near the maximum term authorized, it in no
way suggests that Congress intended to grant the Commission
the authority to disregard the sentencing enhancements
provided in 21 U.S.C. 841 and other similar statutes.
-47-
47
would write off "the word `categories' as some sort of
linguistic accident or awkward locution."
With all due respect, I find the phrase "categories
of defendants" much less troubling. First, I note that
"categories" is inherently a general, imprecise term, whereas
I believe "maximum" is naturally a specific, precise one.
Hence, I find it eminently more plausible, in this context,
to read the phrase "categories of defendants" narrowly -- as
referring to classes of defendants subject to specific
enhanced penalties -- than it is to read the phrase "maximum
term authorized" broadly -- as referring to, with respect to
certain defendants, something less than the maximum (i.e.,
under the USM interpretation, some defendants who are subject
to enhanced penalties will be sentenced at or near the
unenhanced maximum, which, with respect to those defendants,
is not the authorized statutory maximum).
Second, I do indeed believe that the phrase
"categories of defendants" is perhaps better understood, to
use my colleagues' phraseology, as a "linguistic accident or
an awkward locution." As I note infra, at 11-13, Congress
added 994(h) to the enabling legislation late in the
drafting process. The subsection derives from a sentencing
provision attached to other legislation that directed judges
to sentence career criminals to the maximum possible penalty.
In attaching it to the enabling legislation, Congress rewrote
-48-
48
the provision borrowing the phrase "categories of defendants"
and other language from the already-existing 994(i).20
In contrast with 994(h), 994(i)'s usage of the
phrase "categories of defendants" is sensible in light of
that subsection's structure. First, 994(i) broadly
instructs the Commission to assure that various "categories
of defendants" shall receive "substantial" sentences, and
20. 28 U.S.C. 994(i) provides:
The Commission shall assure that the
guidelines specify a sentence to a
substantial term of imprisonment for
categories of defendants in which the
defendant --
(1) has a history of two or more prior
Federal, State, or local felony
convictions for offenses committed on
different occasions;
(2) committed the offense as part of a
pattern of criminal conduct from which
the defendant derived a substantial
portion of the defendant's income;
(3) committed the offense in furtherance
of a conspiracy with three or more
persons engaging in a pattern of
racketeering activity in which the
defendant participated in a managerial or
supervisory capacity;
(4) committed a crime of violence that
constitutes a felony while on release
pending trial, sentence or appeal from a
Federal, State, or local felony for which
he was ultimately convicted; or
(5) committed a felony that is set forth
in section 401 or 1010 of the
Comprehensive Drug Abuse Prevention and
Control Act of 1970 (21 U.S.C. [ ] 841
and 960), and that involved trafficking
in a substantial quantity of a controlled
substance.
-49-
49
then it proceeds to list five different "categories" of
defendants to which the instruction applies. In contrast,
994(h)'s usage of the term "categories" is peculiar. See,
supra, note 16. First, 994(h)'s sentencing command (i.e.,
"at or near the maximum term authorized") is more precise
than 994(i)'s broad command (i.e., "substantial"), and,
second, its structure is different: it does not sequentially
enumerate separate categories of defendants to which the
command applies. Hence, I believe the parallel language in
the two subsections is best understood as principally
revealing Congress's intent that the two subsections should
be read together. In other words, by using the parallel
language, Congress awkwardly expressed its intent that
994(h) should be read as carving out a narrow subset of
criminals, otherwise subject to the broader 994(i), that
should be sentenced, not just substantially, but at or near
the maximum penalty possible.
In any event, because I believe that the phrase
"maximum term authorized" cannot plausibly be interpreted to
mean the unenhanced maximum, I likewise believe that
"categories of defendants" must be read narrowly.
II.
II.
Deciding that the phrase "maximum term authorized"
means, in the appropriate circumstances, the enhanced
statutory maximum does not end the analysis. It is still
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50
necessary to consider whether the sentencing scheme
propounded by Amendment 506 nonetheless satisfies Congress's
directive to sentence career offenders "at or near" the
maximum.21
The defendants contend that, when read in context,
994(h)'s "at or near" directive is unclear and ambiguous,
see United States v. Fountain, 885 F. Supp. 185, 188 (N.D.
Iowa 1995), and, accordingly, this court should defer to the
Commission's reasonable interpretation. Moreover, the
defendants argue that 994(h) is only one of many
congressional directives which the Commission had the
responsibility and duty to harmonize in promulgating the
sentencing guidelines. Specifically, the defendants note
that one of the main purposes of the Sentencing Commission is
to reduce "unwarranted disparities" in sentencing and, thus,
assure that individuals who have committed similar acts
receive similar sentences. See 28 U.S.C. 991(b)(1)(B). They
maintain that Amendment 506 achieves this goal because it
eliminates "unwarranted" disparity resulting from exercise of
unchecked prosecutorial discretion in deciding whether or not
to seek the enhanced penalties provided in statutes like
841.
21. I do not restate the facts or describe how the Career
Offender guideline operates. For a thorough discussion of
these matters see Majority Opinion at 4-11.
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51
In response, the government contends that Amendment
506 is invalid because it is inconsistent with the plain
language of 28 U.S.C. 994(h). The government argues that
the sentencing ranges resulting from application of the
amendment do not satisfy 994(h)'s clear command that career
offenders should be sentenced "at or near" the maximum term
authorized. I agree with the government.
First, in analyzing 28 U.S.C. 994(h), I disagree
with the defendants that its command that career offenders
should receive sentences "at or near" the statutory maximum
is unclear and ambiguous. Though Congress undoubtedly could
have been more precise in limiting the Commission's
discretion in this context, the phrase "at or near" has a
fairly unambiguous and narrow ordinary meaning. Common
definitions of the term "near" specify that an object (or
limit) is "near" another if it is "not a far distan[ce] from"
or "close to" the other object (or limit). Webster's Third
New International Dictionary (1986); accord The American
Heritage Dictionary (2d College Ed. 1985) (defining "near" as
"To, at, or within a short distance or interval in space or
time."). The Commission's attempt to implement the "at or
near" directive (as ultimately expressed in Amendment 506),
however, does not satisfy this standard. For example, under
Amendment 506, a defendant who qualifies as a Career Offender
and whose punishment has been enhanced pursuant to 21 U.S.C.
-52-
52
841(b)(1)(C) to a maximum possible penalty of thirty years
is assigned a base sentencing range of only 210 to 262
months. Such a range is but 58.3 to 72.78 percent of the
maximum possible term of thirty years (360 months).
Notwithstanding a certain amount of ambiguity in the term
"near" at the margins, I think it plainly obvious that a
guideline interpretation that, even before any adjustment for
acceptance of responsibility, prescribes such a sentencing
range does not assure that defendants will be sentenced "at
or near" the maximum term authorized.
Moreover, a comparison of 994(h) with 994(i)
makes clear beyond doubt that Congress intended the language
"at or near" to limit narrowly the Commission's discretion to
prescribe sentencing ranges for career offenders. Subsection
994(i), which was added to the enabling legislation in the
Senate prior to the addition of 994(h),22 provides that
22. The guidelines enabling legislation, ultimately enacted
in 1984, has a long and complex legislative history. See
generally Kate Stith & Steve Y. Koh, A Decade of Sentencing
Guidelines: Revisiting the Role of the Legislature, 28 Wake
Forest L. Rev. 223 (1993). Indeed, the legislation enacted
in 1984 traces its roots to a sentencing reform measure
originally introduced by Senator Kennedy in 1975. Id. at
225. Subsection 994(i) first appeared in a Senate version of
the legislation in 1978. See S. 1437, 95th Cong., 2d Sess.
124 (1978) (proposed tit. 28, 994(h)); 124 Cong. Rec. 1463
(1978). The Senate subsequently added 994(h) to a later
version of the legislation in 1983. See S. 668, 98th Cong.,
1st Sess. 7 (1983 (proposed tit. 28, 994(h)); 129 cong.
Rec. 22,883 (1983). Both provisions were part of the
guidelines enabling legislation ultimately enacted in 1984.
Pub. L. No. 98-473, 217, 98 Stat. 2021-22 (codified as
amended 28 U.S.C. 994(h),(i)).
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53
the "Commission shall assure that the guidelines specify a
sentence to a substantial term of imprisonment" for habitual
offenders, racketeers, defendants who commit crimes while
released on bail, and felony drug offenders. 28 U.S.C.
994(i) (emphasis added).23 Subsection 994(i) applies to a
broad class of defendants including all defendants subject to
994(h). Id. 994(i)(1) (subsection applies, inter alia,
to all defendants who have "a history of two or more prior
Federal, State, or local felony convictions for offenses
committed on different occasions"). Subsection 994(h), on
the other hand, applies to a narrower subset of defendants
that Congress felt must be punished even more stringently.
In offering the original version of 994(h), Senator Kennedy
argued that the amendment was needed because "Career
criminals must be put on notice that their chronic violence
will be punished by maximum prison sentences for their
offenses, without parole."24 128 Cong. Rec. 26,518 (1982)
(emphasis added). By adding 994(h), Congress sought to
indicate that certain career offenders, with serious criminal
histories, should receive not simply a "substantial term of
23. See, supra, note 20.
24. Section 994(h) derives from an amendment originally
offered in 1982 by Senator Kennedy to S. 2572. See S. Rep.
225 at 175, reprinted in 1984 U.S.C.C.A.N. 3182, 3358. The
1982 amendment provided in relevant part that "A career
criminal shall receive the maximum or approximately the
maximum penalty for the current offense." 128 Cong. Rec.
26,511-12 (1982).
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54
imprisonment" as prescribed by 994(i), but instead a term of
imprisonment that was at or near the statutory maximum.
Indeed, if 994(h) is only, as the defendants argue, a
general admonishment -- which the Commission has broad
discretion to implement -- to punish career offenders more
harshly than it otherwise would, the subsection adds little
direction not already provided by 994(i).25
Second, the basic structure of the enabling
legislation undercuts the defendants' argument that this
court should defer to the Commission's attempt to harmonize
994(h) with other purportedly conflicting congressional
directives. The goal of avoiding unwarranted sentencing
disparities is, indeed, one of the broad underlying purposes
that motivated Congress's creation of the Sentencing
Commission. See 28 U.S.C. 991(b)(1)(B). Though Congress
restated the goal as one of the directives to which the
Commission should "pay particular attention" in promulgating
the guidelines, see 28 U.S.C. 994(f), it is nonetheless a
general objective not specific to any particular guideline.
25. The point made here, that a comparison of 994(h) with
994(i) clearly evinces Congress's intent in enacting
994(h) to narrow the Commission's discretion in sentencing
career criminals, provides further support for my analysis in
part I. In other words, it strikes me as quite odd to note,
on the one hand, that Congress clearly directed the
Commission to sentence career criminals at or near the
maximum, while noting, on the other, that it gave the
Commission complete discretion to define what that maximum
is.
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55
The directive expressed by 994(h), on the other hand, is a
specific command aimed at a narrow class of defendants who
are established as career criminals. In essence, 994(h) is
a specific exception, dealing with a narrow class of criminal
offenders, that limits the discretion otherwise granted to
the Commission to create sentencing guidelines. Therefore,
while the Commission should strive to harmonize the
implementation of 994(h) with other, more general,
congressional directives, to the extent that 994(h) is in
tension with them, I believe that the more general directives
must bend to accommodate the more specific 994(h), rather
than the other way around.
Third, I find the defendants' and the Commission's
disparity arguments to be largely irrelevant in this context.
One of the principal justifications cited by the Commission
in promulgating Amendment 506 was the perceived need to
eliminate the disparity resulting from the exercise of
prosecutorial discretion in deciding whether or not to seek
maximum penalty enhancements. See U.S.S.G. App. C, Amendment
506, at 409 (November 1994). A review of the legislative
history, however, strongly suggests that the sentencing
disparity that Congress hoped to eliminate did not stem from
prosecutorial discretion, but, instead, from two other
sources: (1) unchecked judicial discretion in formulating
sentences, and (2) the imposition of indefinite sentences
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56
subject to parole board review. See S. Rep. 225 at 38,
reprinted in 1984 U.S.C.C.A.N. 3182, 3221. More
specifically, it is apparent that Congress was particularly
concerned by the fact that different judges -- due to
differing views on the purposes and goals of punishment --
tended to mete out substantially different sentences to
similarly situated individuals convicted of the same crimes.
S. Rep. 225 at 41-46, reprinted in 1984 U.S.C.C.A.N. at 3224-
29.26 It is not apparent, however, that Congress was
overly (or even marginally) concerned with disparities
resulting from prosecutorial discretion over charging
decisions. Indeed, one of the principal criticisms expressed
against adopting the enabling legislation was that sentencing
guidelines would simply shift the unchecked discretion in
sentencing from judges to prosecutors. See S. Rep. 225 at
63, reprinted in 1984 U.S.C.C.A.N. at 3246. Congress could
hardly have been seeking to reduce sentencing disparities
arising from exercise of prosecutorial discretion when the
legislation under consideration would, if anything, enhance
that discretion. Hence, the unwarranted disparities that
Congress intended the Commission to correct were those
26. Senator Kennedy argued that sentencing guidelines were
necessary because "[f]ederal criminal sentencing is a
national disgrace. Under current sentencing procedures,
judges mete out an unjustifiably wide range of sentences to
offenders convicted of similar crimes." 129 Cong. Rec. 1644
(1984).
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57
primarily arising from judicial, not prosecutorial,
discretion.
Finally, as I have noted, 994(h) specifically
refers to the enhanced penalty statutes (e.g. 21 U.S.C.
841) to which it applies. These statutes, in turn, expressly
vest discretion in the prosecutor to seek application of the
criminal history enhancements. See 21 U.S.C. 851. Thus,
it is reasonable to conclude that Congress understood that
its command to sentence at or near the maximum term
authorized could result in disparate sentences for similarly
situated individuals depending on whether or not the
prosecutor had chosen to seek the enhanced penalties provided
by the underlying statutes. Thus, I think the disparities
that result from an implementation of 994(h)'s clear
directive to sentence "at or near" the maximum are not the
"unwarranted disparities" that Congress charged the
Commission to avoid.
While I am sympathetic to the concerns noted by the
Commission in promulgating Amendment 506, I nonetheless find
it contrary to Congress's clear command. In sum, I believe
the amendment is inconsistent with Congress's clearly
expressed intent to limit narrowly the Commission's
discretion to establish sentencing ranges for career
offenders. Accordingly, I dissent with respect to parts I-
IV.
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