U.S. v. Corrado, 93-2086

• Decision Date: 08 May 1995
• Docket Number: No. 93-2086,93-2086
• Citation: 53 F.3d 620
• Parties: UNITED STATES of America v. Robert CORRADO. Robert A. Corrado, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 620

53 F.3d 620

UNITED STATES of America v. Robert CORRADO.

Robert A. Corrado, Appellant.

No. 93-2086.

United States Court of Appeals, Third Circuit.

Argued Nov. 2, 1994.

Decided May 8, 1995.

Scott DiClaudio (argued), and Louis T. Savino, Jr., Louis T. Savino & Associates, Philadelphia, PA, for appellant.

Walter S. Batty, Jr. (argued), Office of the U.S. Atty., Philadelphia, PA, for appellee.

Before: GREENBERG, SCIRICA and LEWIS, Circuit Judges.

OPINION OF THE COURT

LEWIS, Circuit Judge.

This appeal deals principally with only one issue: whether the district court properly relied upon section 1B1.11(b)(2) of the United States Sentencing Guidelines ("U.S.S.G." or "guidelines") in calculating the sentence it imposed in this case. Section 1B1.11(b)(2) is, in essence, the United States Sentencing Commission's codification of the so-called "one book rule," the practice of applying only one version of the guidelines when calculating a defendant's sentence. Prior to its codification, we had expressly disapproved the "one book rule"; thus, we are called upon to reconcile our prior rejection with its subsequent codification. Because we conclude that the Sentencing Commission's adoption of the "one book rule" is binding, we will affirm the district court's judgment of sentence in this regard. ¹

I.

During a period from June 1985 through May 1988, Corrado was involved in the operation of a stolen car ring and "chop shop," as well as a conspiracy to defraud Stereo Discounters Electronic World, Inc., an electronics retailer. Corrado entered a guilty plea to two counts of a 38-count indictment and, in November 1993, was sentenced to two concurrent 57-month terms of imprisonment. ² Pursuant to section 1B1.11(b)(1) of the November 1993 version of the guidelines (the edition in effect at the time of Corrado's sentencing), the district court looked to the 1987 version of the guidelines (the edition in effect at the time Corrado committed his crimes) to calculate the sentence. The court pursued this regimen because application of the 1993 version of the guidelines would have resulted in Corrado receiving a more severe sentence than he could have anticipated when he committed his crimes. See U.S.S.G. Sec. 1B1.11(b)(1) (1993) (directing courts to use the guidelines in effect at the time the offense was committed if the guidelines in effect at the time of sentencing would violate the Constitution's ex post facto clause). As part of the calculation of Corrado's sentence, the district court granted the two-level reduction for acceptance of responsibility available under the 1987 guidelines. See U.S.S.G. Sec. 3E1.1(a) (1987).

Corrado now argues that the district court erred because it did not grant him a three-level downward adjustment--the maximum reduction available under the 1993 version of the guidelines for acceptance of responsibility. See U.S.S.G. Sec. 3E1.1 (1993).

We have jurisdiction under 18 U.S.C. Sec. 3742(a).

II.

As a general rule, a defendant's sentence should be based on the guidelines "that are in effect on the date that the defendant is sentenced." United States v. Menon, 24 F.3d 550, 566 (3d Cir.1994); United States v. Cherry, 10 F.3d 1003, 1014 (3d Cir.1993); United States v. Kopp, 951 F.2d 521, 526 (3d Cir.1991); 18 U.S.C. Sec. 3553(a)(4); U.S.S.G. Sec. 1B1.11(a) (1993). When, however, the retroactive application of the version of the guidelines in effect at sentencing results in more severe penalties than those in effect at the time of the offense, the earlier version controls, United States v. Seligsohn, 981 F.2d 1418, 1424 (3d Cir.1992), citing Kopp, 951 F.2d at 526; see also United States v. Pollen 978 F.2d 78, 90 (3d Cir.1992); United States v. Chasmer, 952 F.2d 50, 52 (3d Cir.1991); U.S.S.G Sec. 1B1.11(b)(1) (1993), since, as already noted, to apply a change in the guidelines that enhances the penalty would offend the ex post facto clause of the United States Constitution. See Miller v. Florida, 482 U.S. 423, 431-35, 107 S.Ct. 2446, 2451-54, 96 L.Ed.2d 351 (1987); Menon, 24 F.3d at 566; U.S. Const. Art. I, Sec. 9. Moreover, if the application of the guideline manual in effect at the time of sentencing would violate the ex post facto clause, the manual in effect on the date of the offense should be used in its entirety. U.S.S.G. Sec. 1B1.11(b)(2) (1993) (emphasis added). The practice of applying only one version of the guidelines when calculating a defendant's sentence has been referred to as the "one book rule". ³

It is undisputed that the district court correctly looked to the 1987 version of the guidelines in determining Corrado's sentence. Indeed, there is no question but that Corrado would have received a more severe sentence had the 1993 guidelines been applied. Under the 1987 guidelines, Corrado's offense level was increased by eight levels to account for the monetary loss he caused, while under the 1993 guidelines the same loss would have resulted in an eleven-level increase. ⁴ Compare U.S.S.G. Sec. 2F1.1(b)(1)(I) (1987) with U.S.S.G. Sec. 2F1.1(b)(1)(L) (1993). This difference meant that, even with the three-level acceptance of responsibility adjustment, Corrado's applicable range under the 1993 guidelines would have been 70 to 87 months, while under the 1987 guidelines, with the two-level reduction, his sentencing range was only 57 to 71 months.

III.

Corrado suggests that the district court should have used the 1987 version of the guidelines when calculating his adjusted offense level and the 1993 version when determining the maximum permissible downward adjustment for acceptance of responsibility. He argues that because 18 U.S.C. Sec. 3553(a)(4) requires that sentences be calculated according to the guidelines in effect at the time of sentencing, he is entitled to the benefit of the 1993 provision governing acceptance of responsibility. In essence, Corrado challenges the district court's decision to apply the 1987 guidelines as a whole rather than considering each provision in isolation and applying only those provisions from the 1987 version of the guidelines which are more favorable. In support of his position, Corrado advances two distinct arguments. First, he claims that the district court was free to disregard section 1B1.11(b)(2) because it is "not a guideline as such, rather it is a policy statement[,] ... [which is] not binding on the sentencing court." Appellant's Br. at 17-18. Corrado also contends that the application of section 1B1.11, itself, violates the ex post facto clause; according to Corrado, but for that provision, which was added to the guidelines after he committed his crimes, the district court would have been free to apply the 1987 guidelines in determining his adjusted offense level and the 1993 provision for acceptance of responsibility--a process which would have resulted in a more favorable sentence.

We have plenary review of issues of law raised by the application of the guidelines. United States v. Mobley, 956 F.2d 450, 451 (3d Cir.1992). We will address Corrado's contentions in turn.

A.

Corrado's claim that the district court was not bound to follow section 1B1.11(b)(2) because it is a policy statement rather than a guideline is, quite simply, mistaken. The Guideline Manual contains three varieties of text: guidelines provisions, policy statements and commentary. Title 28 of the United States Code at section 994, draws an unequivocal distinction between "guidelines," 28 U.S.C. Sec. 994(a)(1), and "general policy statements regarding the application of the guidelines," 28 U.S.C. Sec. 994(a)(2), as do other sections of the statute. See, e.g., 28 U.S.C. Sec. 994(a)(3) (referring specifically to "guidelines or general policy statements"); Sec. 994(c) (referring specifically to "guidelines and policy statements"). Policy statements, unlike the guidelines, are not subject to formal legislative review and do not have the same degree of authority as guidelines. See United States v. Gaskill, 991 F.2d 82, 85 (3d Cir.1993). The Supreme Court, however, has stated that "[t]he principle that the Guidelines Manual is binding on federal courts applies as well to policy statements." Stinson v. United States, --- U.S. ----, ----, 113 S.Ct. 1913, 1917, 123 L.Ed.2d 598 (1993). Furthermore, where "a policy statement prohibits a district court from taking a specified action, the statement is an authoritative guide to the meaning of the applicable guideline." Williams v. United States, 503 U.S. 193, 201, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992); ⁵ United States v. Reilly, 33 F.3d 1396, 1424 n. 21 (3d Cir.1994). In this case, the policy statement at issue expressly prohibits district courts from doing precisely what Corrado suggests the district court here should have done--namely, to mix and match provisions from different versions of the guidelines in order to tailor a more favorable sentence. Because of its prohibitive nature, as well as the fact that we believe applying various provisions taken from different versions of the guidelines would upset the coherency and balance the Sentencing Commission obviously intended in promulgating the guidelines, see United States v. Kikumura, 918 F.2d 1084, 1109 (3d Cir.1990), we conclude that section 1B1.11(b)(2) is binding and, as such, was properly followed by the district court in this case.

We need not reach Corrado's claim that the district court "was obligated to ... follow the approach established by the Third Circuit" in Kopp and Seligsohn. See Appellant's Br. at 19. Although we previously held that the "so-called [one book] rule is inconsistent with United States v. Kopp and other cases in this Court[,]" and "expressly disapprove[d] of the 'one book' practice as in conflict with the Kopp opinion[,]" Seligsohn, 981 F.2d at 1424, the Sentencing Commission, through its adoption of section 1B1.11(b)(2), has effectively overruled those opinions insofar as they conflict with the codification of the "one book...