942 F.2d 606 (9th Cir. 1991), 89-10059, United States v. Anderson

Docket Nº:89-10059.
Citation:942 F.2d 606
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Earl Thomas ANDERSON, Defendant-Appellant.
Case Date:August 06, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 606

942 F.2d 606 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Earl Thomas ANDERSON, Defendant-Appellant.

No. 89-10059.

United States Court of Appeals, Ninth Circuit

August 6, 1991

Argued and Submitted En Banc Jan. 24, 1991.

As Amended Sept. 5, 1991.

Page 607

Robert M. Holley, Asst. Federal Defender, Sacramento, Cal., for defendant-appellant.

Thomas E. Flynn, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before BROWNING, GOODWIN, TANG, POOLE, D.W. NELSON, CANBY, BEEZER, HALL, WIGGINS, KOZINSKI and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Earl Thomas Anderson was convicted of armed bank robbery and sentenced to forty-six months under the sentencing guidelines. The district court included in the calculation of Anderson's total offense level an upward adjustment for being an organizer, leader, manager, or supervisor under U.S.S.G. § 3B1.1(c), even though it assumed that Anderson was the only person criminally responsible for committing the offense. While the guideline itself says nothing about requiring more than one criminally responsible person, the Introductory Commentary instructs that § 3B1.1 applies only if the offense involves more than one participant, and Application Note 1 defines "participant" as a "person who is criminally responsible for the commission of the offense." This case requires us to determine the proper weight to be given to the sentencing guidelines' commentary and the correct interpretation of § 3B1.1(c) in light of the commentary. We vacate and remand.

I

On December 17, 1987, Anderson robbed a bank at gunpoint, and his codefendant, Gary Lee Hambley, drove the getaway car. Police arrested both of them. After the arrest, Hambley told officers that he had not known that Anderson was going to rob the bank and that, instead, Anderson had picked him up on the ruse of going to work. Hambley said that when they parked the car near the bank, Anderson told him to open the trunk and wait for him; then, Anderson came out of the bank, jumped into the trunk, and told Hambley to drive to another individual's house. According to Hambley, Anderson did not tell him about robbing the bank until after they had arrived at the house.

Anderson pled guilty to armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d). Hambley was charged with armed bank robbery and with the lesser offense of accessory after the fact in violation of 18 U.S.C. § 3. He pled not guilty, and his trial ended with a hung jury. He then pled guilty to misprision of a felony in violation of 18 U.S.C. § 4. 1 Counsel for both sides in the Hambley proceeding stipulated that

Page 608

Hambley did not know that Anderson was robbing the bank until after they had arrived at the house and that Hambley then failed to notify authorities and drove Anderson to another person's home.

Anderson's presentence report calculated his total offense level at twenty-two, which included a two-level upward adjustment for role in the offense. The report stated:

Since there is strong evidence the defendant was in the process of recruiting a getaway driver prior to the robbery, and two people are known to have been recruited, coupled with the fact the defendant's and codefendant's statements indicate the codefendant was not aware of the robbery until after it occurred, it would appear the defendant had an aggravating role in the offense. Even if one believes the codefendant was tricked into being the getaway driver, the mere act of trickery to cause the codefendant to become a participant in the crime would appear to strongly forward the proposition the defendant played a leadership role. Pursuant to Section 3B1.1(c), two levels are added.

U.S.S.G. § 3B1.1(c) provides for a 2-level upward adjustment when the defendant is "an organizer, leader, manager, or supervisor" in the criminal activity.

Anderson moved to correct the presentence report to eliminate the two-level adjustment for aggravating role in the offense. He argued that U.S.S.G. § 3B1.1(c) only applies when the offense is committed by more than one criminally responsible person, and since Hambley was not criminally responsible for the robbery, it did not apply in his case. The guideline, in subsection (c), says nothing about any required number of criminally responsible persons. The Introductory Commentary, however, says that "[w]hen an offense is committed by more than one participant, § 3B1.1 or § 3B1.2 (or neither) may apply," and Application Note 1 explains that "[a] 'participant' is a person who is criminally responsible for the commission of the offense."

The district court denied Anderson's motion, concluding that § 3B1.1(c) applies regardless of whether Anderson was the sole "participant." The district judge explained: "I don't find anything that satisfies me under the governing provision that I think I have to follow that the other person or persons must be a knowing participant." Anderson's offense level was established at twenty-two, and he was sentenced to forty-six months in prison.

Anderson has appealed this sentence twice. The first time, we summarily remanded for resentencing in light of Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988), vacated, 488 U.S. 1036, 109 S.Ct. 859, 102 L.Ed.2d 984 (1989), in which this court had held the sentencing guidelines to be unconstitutional. Before Anderson's resentencing, the Supreme Court upheld the constitutionality of the guidelines. Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The district court therefore resentenced Anderson to the same sentence.

On Anderson's second appeal, the panel affirmed the sentence. United States v. Anderson, 895 F.2d 641 (9th Cir.1990). The majority concluded that the two-level adjustment under § 3B1.1(c) was appropriate because subsection (c) does not mention any requirement of more than one participant. Concluding that the commentary to the guidelines is to be treated like legislative history, which normally need not be considered in reviewing a statute that is clear on its face, the majority declined to consider the commentary. The dissent would have treated the commentary instead as an integral part of the guidelines and therefore would have interpreted subsection (c) to apply only when the offense is committed by more than one person who is criminally responsible for the commission of the offense.

We granted rehearing en banc to reconsider the interpretation of § 3B1.1 and to decide the broader question of the appropriate weight to give to the commentary when interpreting the guidelines.

II

Anderson's appeal is properly before us because it raises the issue of an incorrect application of the guidelines. 18

Page 609

U.S.C. § 3742(a)(2). Because the facts are not in dispute and the interpretation of U.S.S.G. § 3B1.1 is a purely legal question, we review the district court's decision de novo. See United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

As the panel opinion illustrates, the interpretation of § 3B1.1 and probably many other guidelines can turn on the weight given to the commentary. Section 3B1.1 itself does not say that any particular number of participants is required to trigger application of the guideline, so it is only by referring to the commentary that courts could conclude that such a requirement exists. Our first task, therefore, is to determine how much weight courts must give to the commentary when interpreting the guidelines.

A

Congress created the United States Sentencing Commission and directed it to promulgate guidelines and general policy statements for use by the federal courts in determining criminal sentences. 28 U.S.C. §§ 991(a) and 994(a). In April 1987, the Commission submitted its original guidelines package to Congress for approval. Although the Commission was required only to submit "sentencing guidelines" to Congress, Pub.L. No. 98-473 § 235(a)(1)(B), 98 Stat. 1837, 2031-32, the Commission submitted commentary along with the guidelines, see United States Sentencing Commission, Sentencing Guidelines and Policy Statements (Apr. 13, 1987). Congress had six months to review the guidelines package, and the guidelines became effective November 1, 1987. 2

Since 1987, the Commission has amended both the guidelines and the commentary. Although only required to submit "amendments to the guidelines" to Congress for approval, 28 U.S.C. § 994(p), the Commission has submitted its amendments to the commentary to Congress as well, United States Sentencing Commission, 1989 Annual Report 19. Each year, the Commission publishes its Guidelines Manual, and in that manual prints its commentary immediately before and after each guideline.

Apart from an amendment to 18 U.S.C. § 3553, 3 Congress has not specifically addressed the commentary in its statutory provisions, and we have found nothing in the legislative history explaining its significance. We are therefore left to determine its status without Congress's guidance. On one end of the spectrum, the commentary could be viewed as equal to the guidelines themselves. In that case, courts would consider a guideline and its attendant commentary together and treat them as if they were different subsections of a single statute. In the event of a conflict, the language of the commentary could prevail over the language of the guideline as easily as the other way around.

On the other end of the spectrum, the commentary could be viewed as legislative history. In that case, it would never prevail over a guideline, and courts normally could ignore it if the language of the guideline is unambiguous. See, e.g., Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981) ("When we find the terms of a statute...

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