United States v. Floyd ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-27-2007
    USA v. Floyd
    Precedential or Non-Precedential: Precedential
    Docket No. 06-1513
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    Recommended Citation
    "USA v. Floyd" (2007). 2007 Decisions. Paper 486.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/486
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 06-1513
    UNITED STATES OF AMERICA
    v.
    BENNAE FLOYD,
    Appellant.
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. No. 02-cr-00295-6)
    District Judge: Honorable Christopher C. Conner
    Argued on January 22, 2007
    Before: SCIRICA, Chief Judge, FUENTES and CHAGARES,
    Circuit Judges.
    (Filed: August 27, 2007)
    John A. Abom (Argued)
    Abom & Kutulakis
    36 South Hanover Street
    Carlisle, PA 17013
    Attorney for Appellant
    Christy H. Fawcett
    Lorna N. Graham (Argued)
    Office of the United States Attorney
    228 Walnut Street, P.O. Box 11754
    220 Federal Building and Courthouse
    Harrisburg, PA 17108
    Attorney for Appellee
    OPINION OF THE COURT
    FUENTES, Circuit Judge.
    In this sentencing appeal, the District Court granted a
    downward departure on account of Bennae Floyd’s substantial
    assistance to the government, but sentenced her within the
    originally calculated Guidelines range. In doing so, the Court
    departed from a previously imposed sentence that we vacated in a
    prior appeal. For the reasons that follow, we will again vacate and
    remand for resentencing.
    I. Factual and Procedural Background
    In 2004, Floyd was indicted on various counts arising from
    a conspiracy to distribute at least 50 grams of crack cocaine and 5
    kilograms of cocaine powder.1 Pursuant to a plea agreement, Floyd
    pleaded guilty to just one count of traveling interstate or causing
    others to travel interstate to facilitate drug trafficking, which
    carried a maximum sentence of 60 months in prison. 18 U.S.C. §
    1
    We previously recited a more detailed procedural history
    of this case in United States v. Floyd, 
    428 F.3d 513
    (3d Cir. 2005)
    (“Floyd I”).
    -2-
    1952(a)(3). In exchange for pleading guilty, the government
    agreed to dismiss the remaining charges and to request a downward
    departure based on Floyd’s substantial assistance with the
    government’s prosecution of her co-defendants.2
    At Floyd’s sentencing hearing, however, the government did
    not move for a downward departure—in the government’s view, its
    dismissal of Floyd’s remaining charges resulted in a sufficient
    reduction in her sentence.3 With no departure motion before it, the
    District Court calculated an applicable Guidelines range of 41 to 51
    months and sentenced Floyd to 48 months in prison.
    Floyd appealed, arguing that the government breached its
    promise to move for a downward departure. Floyd 
    I, 428 F.3d at 514
    . We agreed with Floyd, reasoning that “the [g]overnment did
    not reserve the right not to recommend a downward departure on
    the ground that the charge bargain turned out to be more favorable
    than it had originally anticipated.” 
    Id. at 517.
    We remanded to the
    District Court to determine whether Floyd’s assistance was
    “substantial.” 
    Id. at 518.
    On remand, however, the government
    chose to forego an evidentiary hearing and simply moved for the
    downward departure.
    At Floyd’s resentencing, the District Court incorporated its
    prior rulings that established a Guidelines range of 41 to 51
    months. With respect to the government’s motion to depart, it
    2
    Guidelines Section § 5K1.1 provides that the government
    may move for a downward departure when a defendant has
    provided “substantial assistance in the investigation or prosecution
    of another person who has committed an offense.” U.S. Sentencing
    Guidelines Manual § 5K1.1 (2003). The day before entering her
    plea, Floyd met with a co-defendant to persuade him to plead
    guilty. That co-defendant, as well as two others, decided to plead
    guilty shortly thereafter.
    3
    Had Floyd been convicted of all charges set forth in the
    indictment, she would have faced a potential Guidelines range of
    292 to 365 months, as compared to the 60-month statutory
    maximum she faced on the drug trafficking charge.
    -3-
    ruled:
    Assessing all the factors enumerated in section
    5K1.1, and giving weight to the government’s
    evaluation of the defendant’s assistance, the court
    concludes that this case marginally meets the criteria
    for a downward departure from the original sentence
    of 48 months. Therefore the court will grant the
    motion.
    (App. 47-48.) As a result, the Court reduced the original sentence
    of 48 months by 6 months. The Court then stated that the sentence
    “satisfie[d] the purposes” of the factors outlined in 18 U.S.C. §
    3553(a), and, without altering Floyd’s sentence further, imposed
    the sentence of 42 months. (App. 52-53.)
    Floyd’s attorney objected, arguing that despite having
    granted the government’s departure motion, the Court had “in
    essence . . . imposed a guideline sentence, just downward from the
    initial sentence.” (App. 56.) Defense counsel asked whether the
    Court had intended to “not downwardly depart . . . from the
    guideline but simply depart downward from the initial sentence?”
    (Id.) The Court responded that it had, in fact, granted a downward
    departure, explaining:
    The decision of 42 months does reflect a downward
    departure, and we have the benefit of an original
    sentence, and rather than go through the calculation
    of what my offense level arrived at in terms of a
    guideline, I thought it better just to give you the
    specific sentence departure. So I don’t think it’s
    accurate to say that the departure doesn’t reflect the
    court’s assessment of the guideline range.
    (App. 56-57.)4
    4
    The District Court also stated that “I departed downward
    approximately 12.5 percent from the original sentence, and that
    also reflects a departure in the offense level. A departure of 10
    percent results in a guideline range of 36.9 to 45.9 months. 12
    -4-
    On appeal, Floyd asks us to remand for resentencing
    because the District Court never provided her the benefit of the
    departure it granted.
    II. Discussion
    A.
    The Supreme Court rendered the Sentencing Guidelines
    advisory in United States v. Booker, 
    543 U.S. 220
    (2005), and we
    now review sentences for reasonableness, United States v. Cooper,
    
    437 F.3d 324
    , 326-27 (3d Cir. 2005). In spite of these changes,
    district courts must still calculate an applicable Guidelines range
    and rule on any motions for departure. United States v. King, 
    454 F.3d 187
    , 196 (3d Cir. 2006). We have thus described post-Booker
    sentencing as proceeding in the following three steps:
    (1)    Courts must continue to calculate a
    defendant’s Guidelines sentence precisely as
    they would have before Booker.
    (2)    In doing so, they must formally rule on the
    motions of both parties and state on the
    record whether they are granting a departure
    and how that departure affects the Guidelines
    calculation, and take into account our
    Circuit’s pre-Booker case law, which
    continues to have advisory force.
    (3)    Finally, they are required to exercise their
    discretion by considering the relevant §
    3553(a) factors in setting the sentence they
    impose regardless whether it varies from the
    sentence calculated under the Guidelines.
    United States v. Gunter, 
    462 F.3d 237
    , 247 (3d Cir. 2006) (internal
    quotation marks, citations, and alterations omitted). This process
    serves to clarify the basis for the sentence imposed. See United
    percent would be slightly more than that.” (Id. at 56.)
    -5-
    States v. Jackson, 
    467 F.3d 834
    , 838-39 (3d Cir. 2006). The
    calculations of the first two steps provide “a natural starting point”
    from which a court exercises its discretion at step three. 
    Cooper, 437 F.3d at 331
    .
    Under the advisory Guidelines regime, we have
    distinguished between two types of sentence that diverge from the
    original Guidelines range. See United States v. Vampire Nation,
    
    451 F.3d 189
    , 195 & n.2 (3d Cir. 2006) (adopting distinction
    between departures and variances). A traditional sentencing
    “departure” diverges at step 2 from the originally calculated range
    “for reasons contemplated by the Guidelines themselves.” 
    Jackson, 467 F.3d at 837
    n.2. In contrast, a “variance” diverges at step 3
    from the Guidelines, including any departures, based on an exercise
    of the court’s discretion under § 3553(a). 
    Gunter, 462 F.3d at 247
    n.10. Although a departure or a variance could, in the end, lead to
    the same outcome—i.e., a reduction (or increase) in sentence as
    compared to the originally calculated range—it is important for
    sentencing courts to distinguish between the two, as departures are
    subject to different requirements than variances.5
    B.
    The District Court sentenced Floyd without the benefit of
    our recent decisions distinguishing between variances and
    departures, and clarifying the preferred three-step sentencing
    5
    For example, in United States v. Colon, 
    474 F.3d 95
    (3d
    Cir. 2007), we held that a district court did not err in failing to
    engage in a “ratcheting” procedure applicable to upward departures
    because it imposed an above-Guidelines sentence as a variance, not
    a departure. 
    Id. at 99
    & n.8. Moreover, in Vampire Nation, we
    held that the notice requirement for upward departures would not
    apply to 
    variances. 451 F.3d at 197
    ; see also Fed. R. Crim. Pro.
    32(h). Importantly, we observed in Vampire Nation that
    sentencing courts should “be careful to articulate whether a
    sentence is a departure or a variance from an advisory Guidelines
    
    range,” 451 F.3d at 198
    , and we have noted that this terminology
    “aid[s] our review of criminal sentences.” 
    Jackson, 467 F.3d at 837
    n.2.
    -6-
    process. The parties nevertheless agree that the disputed action of
    the District Court involved a departure, rather than a variance, and
    it is clear from the record that the Court granted a departure motion
    under § 5K1.1, rather than varying Floyd’s sentence based on the
    factors listed at § 3553(a). The parties dispute only whether the
    Court properly effected the departure it granted.
    Floyd argues that a downward departure under the
    Guidelines must result in a sentence below the otherwise applicable
    range and that the District Court “misunderstood the definition of
    a downward departure.” Floyd’s Br. at 9. In our view, her
    challenge relates to whether the Court properly determined, at step
    2 of the Gunter process, how its departure “affect[ed] the [original]
    Guidelines calculation.” 
    Gunter, 462 F.3d at 247
    .
    For the reasons that follow, we conclude that the manner by
    which the District Court reduced Floyd’s sentence—that is, from
    a prior sentence of 48 months to a new sentence of 42
    months—was inconsistent with proper sentencing procedure.6
    6
    We note that Floyd does not challenge the District Court’s
    specific method for reducing her sentence on account of the
    departure motion. Post-Booker, § 5K1.1 continues to set out the
    considerations relevant to the “appropriate reduction.” See United
    States v. Torres, 
    251 F.3d 138
    , 146 (3d Cir. 2001) (listing the
    factors to be considered). However, it does not specify the method
    by which to effectuate that reduction, and we have suggested that
    courts have latitude in choosing their methodology. United States
    v. Faulks, 
    143 F.3d 133
    , 137 n.2 (3d Cir. 1998). Indeed, we have
    reviewed § 5K1.1 departures effected by various methods. See,
    e.g., 
    Torres, 251 F.3d at 151
    (approving § 5K1.1 departure of one-
    month from bottom of calculated range); United States v. Casiano,
    
    113 F.3d 420
    , 428, 431 (3d Cir. 1997) (affirming § 5K1.1 departure
    of 3 offense levels, resulting in reduced range). Unlike § 5K1.1,
    other departure provisions refer explicitly to departing by means of
    a reduction in the applicable offense level or criminal history
    category. See U.S.S.G. § 5K3.1 (2003) (allowing a downward
    departure of no more than “4 levels” under “early disposition
    program”); U.S.S.G. § 4A1.3 (2003) (providing for departures by
    adjusting a defendant’s criminal history category).
    -7-
    C.
    The parties agree that the Guidelines define the phrase
    “downward departure” but dispute whether the § 5K1.1
    “departure” granted by the District Court falls within that
    definition.7 The Application Notes to Guideline § 1B1.1 define a
    “[d]eparture” as the “imposition of a sentence outside the
    applicable guideline range or of a sentence that is otherwise
    different from the guideline sentence.” U.S.S.G. § 1B1.1 cmt.
    n.1(E) (2003).8 The Notes offer two definitions of a downward
    departure: either (1) a “departure that effects a sentence less than
    a sentence that could be imposed under the applicable guideline
    range” or (2) “a sentence that is otherwise less than the guideline
    sentence.” 
    Id. Under the
    first definition, the sentence reached after
    granting a departure motion must be less than the bottom of the
    otherwise applicable Guidelines range. In this case, after granting
    the departure motion, the District Court arrived at a sentence of 42
    months. Because this sentence was within the originally calculated
    range of 41 to 51 months, it was clearly not a departure under the
    first definition.
    7
    The Guidelines definitions cited by the parties were added
    by amendment in 2003 pursuant to the Prosecutorial Remedies and
    Tools Against the Exploitation of Children Today Act of 2003
    (“the PROTECT Act”), Pub. L. No. 108-21, § 401(m), 117 Stat.
    650, 675. The stated purpose of this amendment was simply to
    “provide uniform definitions of departure, upward departure, and
    downward departure.” U.S.S.G. app C, vol II, amend. 651, at 366
    (2003).
    8
    A separate definition is provided for departures under §
    4A1.3, a provision that addresses departures from the applicable
    criminal history category. A departure under that provision is the
    “assignment of a criminal history category other than the otherwise
    applicable criminal history category, in order to effect a sentence
    outside the applicable guideline range.” 
    Id. -8- The
    government argues, however, that the District Court’s
    reduction in Floyd’s sentence falls within the second definition,
    under which a downward departure is “otherwise less than the
    guideline sentence.” It contends that the original 48-month
    sentence was “the guideline sentence,” and that the Court’s 42-
    month sentence was therefore “otherwise less than the guideline
    sentence.” We do not agree. The government cites no authority
    for departing from a previously-imposed, vacated sentence, and we
    do not believe the second definition was intended to enable such a
    procedure.
    Presumably, the government’s basis for considering the 48-
    month sentence to be “the guideline sentence” is that it falls within
    the applicable Guidelines range and was imposed pursuant to the
    Guidelines. Under such a view, however, every sentence that is
    lower than a within-range sentence can be considered “otherwise
    less than the guideline sentence” (and thus a downward departure),
    even when it is within the applicable range. This reading would
    effectively nullify any distinction between simply reducing a
    sentence within a range and formally departing from it.
    Moreover, this reading would conflict with what we stated
    in our first opinion in this case. In remanding to the District Court,
    we remarked that the government’s motion for a downward
    departure under § 5K1.1 “offered Floyd the hope of a downward
    departure from the sentencing guideline range.” Floyd 
    I, 428 F.3d at 518
    (emphasis added). This language mirrored the terms of the
    government’s agreement with Floyd, which stated that, should
    Floyd provide “substantial assistance,” the government would
    “request the Court to depart below the guideline range when fixing
    a sentence.” (A22 (emphasis added).) Similarly, we have
    previously stated that “when someone is promised the possibility
    of ‘a departure from the guidelines’ under U.S.S.G. § 5K1.1, he or
    she may reasonably expect to be afforded the possibility of a
    sentence below the guideline range.” United States v. Faulks, 
    143 F.3d 133
    , 136 (3d Cir. 1998) (emphasis added); see also United
    States v. Torres, 
    251 F.3d 138
    , 145 (3d Cir. 2001) (“Reducing a
    sentence under § 5K1.1 . . . permits a sentencing judge to depart
    from the Guidelines range based upon a defendant's substantial
    -9-
    assistance.”) (emphasis added).9 Accordingly, the District Court
    should have considered a departure from the calculated range of 41
    to 51 months, not from the vacated sentence of 48 months. As the
    Guidelines definitions suggest, such a departure would have
    contemplated a sentence below 41 months, the bottom of that
    range.10
    Furthermore, we observe that by departing from a
    previously imposed sentence, rather than from the calculated
    Guidelines range, the District Court effectively inverted the
    sentencing procedure laid out in Gunter. Under the three-step
    9
    We note that the phrase “the guideline sentence” also
    appears in § 5G1.1. Under that provision, a statutory minimum
    becomes “the guideline sentence” when it is greater than the top of
    the applicable Guidelines range. U.S.S.G. § 5G1.1(b) (2003). See
    United States v. Booth, 
    432 F.3d 542
    , 547 n.7 (3d Cir. 2005)
    (“[Had defendant’s] statutory minimum sentence . . . been greater
    than his possible guideline sentence, [then] the 60-month statutory
    minimum sentence would have been the guideline sentence
    pursuant to section 5G1.1(b).”). Conversely, a statutory maximum
    becomes “the guideline sentence” when it is lower than the bottom
    of the Guidelines range. § 5G1.1(a).
    The second definition encompasses a downward departure
    from such a statutory minimum. See United States v. Cordero, 
    313 F.3d 161
    , 165 (3d Cir. 2002) (affirming § 5K1.1 downward
    departure from 120-month statutory minimum, as “the guideline
    sentence” under § 5G1.1(b), rather than from Guidelines range of
    63 to 78 months). A statutory minimum is not involved in this
    case.
    10
    The District Court mentioned, as an alternative way to
    view its reduction in Floyd’s sentence, that the sentence “also
    reflect[ed]” a departure in the applicable range. (App. 56-57.)
    This statement, however, does not make clear that the District
    Court was actually considering below-range sentences on account
    of the departure motion, particularly because the Court repeatedly
    stated that it was departing from the original sentence.
    -10-
    process, district courts are asked to rule on departure motions
    before balancing the § 3553(a) factors, and just after calculating the
    applicable Guidelines range. Here, the District Court departed
    from the sentence it originally imposed and therefore effectively
    departed after balancing the factors (assuming the 48-month
    sentence resulted from statutory balancing). This inversion of the
    sentencing process makes it impossible for us to review effectively
    the basis for the sentence. Cf. 
    King, 454 F.3d at 196-97
    (“[District
    courts] should observe the requirement to state adequate reasons
    for a sentence on the record so that this court can engage in
    meaningful appellate review.”).
    This is not to say that a 42-month sentence is necessarily
    unreasonable, or that the Court could not have reached that
    sentence. The Court, for example, could have departed below the
    41 to 51 month range (at step 2), and then varied upward within the
    range by balancing the § 3553(a) factors (at step 3). We would
    review for reasonableness. Moreover, as we noted in Faulks, the
    Court could have “denied the motion for a departure and then gone
    on to acknowledge [Floyd’s] substantial assistance by sentencing
    lower in the guideline range than it would otherwise have 
    done.” 143 F.3d at 137
    .11
    Here, after assessing the factors under § 5K1.1, the Court
    stated that Floyd’s assistance “marginally [met] the criteria for a
    downward departure from the original sentence of 48 months.”
    (App. 48.) From this statement, it is unclear whether the Court
    meant that Floyd’s assistance satisfied the requirements for a §
    5K1.1 departure (thereby warranting consideration of a sentence
    below the Guidelines range), or if Floyd’s assistance warranted
    only a reduction within the range (but not a departure below it).
    Without speculating about the Court’s preferred course of action,
    we cannot determine which option it intended.
    III. Conclusion
    11
    We recognized in Faulks that failing to engage in this
    procedure—i.e., granting a § 5K1.1 motion but arriving at an in-
    range sentence—tends to raise questions about, for example, “what
    sentence the judge actually intended” 
    Id. -11- For
    the reasons stated, we vacate the sentence and remand
    for resentencing.
    -12-