U.S. v. Caraballo

• Decision Date: 22 December 2008
• Docket Number: No. 08-1555.,08-1555.
• Citation: 552 F.3d 6
• Parties: UNITED STATES of America, Appellee, v. Luis CARABALLO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

552 F.3d 6

UNITED STATES of America, Appellee, v. Luis CARABALLO, Defendant, Appellant.

No. 08-1555.

United States Court of Appeals, First Circuit.

Heard November 5, 2008.

Decided December 22, 2008.

Bjorn Lange, Assistant Federal Public Defender, for appellant.

Aixa Maldonado-Quiñones, Assistant United States Attorney, with whom Thomas P. Colantuono, United States Attorney was on brief, for appellee.

Before LYNCH, Chief Judge, SELYA and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

This single-issue criminal appeal raises a question of first impression in this circuit: Does the Sentencing Commission's recent amendment to the drug quantity table, USSG App. C, Amend. 706 (2007), offer a potential remedy to a defendant who, although convicted of a drug-trafficking offense involving crack cocaine, was ultimately sentenced as a career offender? The district court answered that question in the negative, concluding that the amendment does not benefit the defendant in the circumstances of this case. We affirm the denial of the defendant's motion for a reduced sentence.¹

The facts and posture of the case are straightforward. On April 6, 2005, defendant-appellant Luis Caraballo pleaded guilty to two counts of possessing crack cocaine with intent to distribute. See 21 U.S.C. § 841(a)(1). The district court computed the guideline sentencing range as follows. It started with a base offense level of 22, premised on a drug quantity of 3.65 grams of crack cocaine. See USSG § 2D1.1. Concluding that the defendant's criminal record qualified him as a career offender, id. § 4B1.1(a), the court performed the alternate calculation required by the career offender guideline, see id. § 4B1.1(b). That alternate calculation implicated a higher base offense level (32) than the non-career-offender calculation (22). Consequently, as prescribed in the career offender guideline, id. § 4B1.1(b) the court employed the enhanced offense level. It then applied a three-level credit for acceptance of responsibility. See id. § 3E1.1. These adjustments yielded a guideline sentencing range of 151 to 188 months.

On September 7, 2005, the district court convened the disposition hearing. The court announced its view that the career offender calculations controlled. The defendant did not challenge the court's decision to invoke the enhanced career offender sentencing range. Instead, he argued for a downwardly variant 48-month sentence under the aegis of United States v. Booker, 543 U.S. 220, 245-46, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The defendant premised his plea primarily on his deteriorating health.

The district court granted a less generous variance and sentenced the defendant to a 108-month incarcerative term on each count, to run concurrently, together with three years of supervised release. The defendant appealed. We denied relief, finding the sentence reasonable. United States v. Caraballo, 447 F.3d 26, 28 (1st Cir.2006).

For many years before and after the imposition of the defendant's sentence, a vigorous debate had been waged about the relatively heavy level of punishment associated with crack cocaine offenses as compared to the somewhat lighter level of punishment associated with crimes involving powdered cocaine. See, e.g., Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 568-70, 169 L.Ed.2d 481 (2007) (limning the history of this debate); United States v. Pho, 433 F.3d 53, 54-57 (1st Cir.2006) (similar). On November 1, 2007, the Sentencing Commission took definitive action by revising a portion of the drug quantity table. See USSG App. C, Amend. 706 (2007). Generally speaking, Amendment 706 adjusts downward by two levels the base offense level ascribed to various quantities of crack cocaine under USSG § 2D1.1(c), thereby shrinking the guideline disparity between crack cocaine offenses and powdered cocaine offenses. Shortly after promulgating Amendment 706, the Commission imbued it with retroactive effect. See USSG App. C, Amend. 713 (Supp. May 1, 2008).

Cognizant of these developments, the defendant lost little time in filing a motion for reduction of his sentence. He claimed that his sentence derived from the drug quantity table for crack cocaine; that Amendment 706 has altered that guideline; and that, therefore, he was eligible for a shorter sentence.² As a vehicle for the achievement of that goal, he identified 18 U.S.C. § 3582(c)(2) (quoted infra).

The district court did not agree that section 3582(c)(2) applied. Noting that the defendant had been sentenced as a career offender, the court found that it lacked authority to reconsider the sentence. Accordingly, the court denied the defendant's motion. United States v. Caraballo, No. 04-CR-035-01 (D.N.H. Apr. 23, 2008) (unpublished order). This timely appeal followed.

We review a district court's denial of a motion for reduction of sentence under section 3582(c)(2) for abuse of discretion. United States v. Rodríguez-Peña, 470 F.3d 431, 432 (1st Cir.2006) (per curiam). A material error of law is perforce an abuse of discretion. United States v. Snyder, 136 F.3d 65, 67 (1st Cir.1998). That subsidiary doctrine has particular pertinence here: this case requires us to determine, as a threshold matter, whether the district court had authority to act under section 3582(c)(2). That is purely a question of statutory interpretation and, to that extent, the court's answer to it engenders de novo review. See United States v. Leahy, 473 F.3d 401, 405 (1st Cir.2007); United States v. Gibbens, 25 F.3d 28, 32 (1st Cir.1994).

Finality is an important attribute of judgments and, typically, once a pronounced sentence in a criminal case becomes final and unappealable, it may not be modified. See, e.g., United States v. Lawrence, 535 F.3d 631, 637 (7th Cir. 2008); United States v. Jordan, 162 F.3d 1, 2 (1st Cir.1998); see also 18 U.S.C. § 3582(c). But this general rule, like virtually every general rule, admits of exceptions. One such exception is embodied in the statute alluded to above, which provides in relevant part that:

in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). In enacting this statute, Congress spoke with unmistakable clarity: before a district court can consider a sentence modification thereunder, it must satisfy itself that the original sentence was "based on a sentencing range that has subsequently been lowered." Id. (emphasis supplied).

In the case at hand, the defendant acknowledges that the lower court sentenced him as a career offender, and he eschews any challenge to that designation. He nonetheless maintains that his sentence was "based on" the crack cocaine guideline, USSG § 2D1.1, because the court used that guideline in the series of calculations leading up to its production of the sentencing range that it ultimately found applicable.

Refined to bare essence, the defendant's suggestion is that, even though his sentence was not dictated exclusively by the crack cocaine guideline, it was "based on" that guideline because that guideline was a way station along the road that the district court traveled in arriving at the appropriate sentencing range. He insists that, given this imbrication, Amendment 706 unlocks section 3582(c)(2) and authorizes the district court, on his motion, to recalculate his sentencing range and determine anew, in light of generally applicable sentencing factors, see 18 U.S.C. § 3553(a), whether a sentence reduction is warranted.

We are not persuaded. Here, the district court first determined the offense level applicable to the underlying drug-trafficking offenses, using the crack cocaine guideline. It then determined the alternate offense level resulting from the defendant's status as a career offender. Only then did it choose the offense level that it actually used in sentencing the defendant: the enhanced career offender level.

The defendant's argument that this oblique reference to the crack cocaine guideline was enough to trigger section 3582(c)(2) disregards the way in which the career offender guideline operates. As we explained in United States v. Ventura, 353 F.3d 84 (1st Cir.2003), the career offender guideline incorporates its own sentencing table. Id. at 90. If the offense level for a career offender from that table "is greater than the offense level otherwise applicable, the offense level from the [career offender] table ... shall apply." USSG § 4B1.1(b). That usually will be the case, since the career offender guideline "sets forth a tabulation of offense levels that are determined by reference to the statutory maximum sentences authorized for various offenses of conviction." Ventura, 353 F.3d at 90.

Given this architecture, the sentencing court's authority is severely limited in career offender cases:

[T]he sentencing court must take the applicable offense level from the career offender table and compare it to the offense level that would be applicable absent a career offender designation. If the former exceeds the latter, the court must use it in determining the defendant's [guideline sentencing range].

Id. (emphasis supplied).

This case hewed to the normal pattern: the career offender guideline provided the higher offense level and, thus, yielded a more punitive sentencing range. That was the range that the district court actually used at sentencing. Consequently, to say that the defendant's sentence was "based on" the crack cocaine guideline strains credulity. Reaching that result would require us to rewrite section 3582(c)(2) and, in the bargain, invade Congress's exclusive preserve.

Nor is there room for any...