U.S. v. Eggersdorf

• Decision Date: 04 November 1997
• Docket Number: No. 96-4245,96-4245
• Citation: 126 F.3d 1318
• Parties: 11 Fla. L. Weekly Fed. C 704 UNITED STATES of America, Plaintiff-Appellee, v. Carl John EGGERSDORF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1318

126 F.3d 1318

11 Fla. L. Weekly Fed. C 704

UNITED STATES of America, Plaintiff-Appellee, v. Carl John EGGERSDORF, Defendant-Appellant.

No. 96-4245.

United States Court of Appeals Eleventh Circuit.

Nov. 4, 1997.

Kathleen Williams, Federal Public Defender, Brenda Bryn, Asst. Federal Public Defender, Miami, FL, for Defendant-Appellant.

Kendall Coffey, U.S. Attorney, Linda Collins Hertz, Robert B. Cornell, Ann Taylor, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Circuit Judge, and KRAVITCH and WOOD ^*, Senior Circuit Judges.

EDMONDSON, Circuit Judge:

Defendant Carl Eggersdorf (Defendant) pled guilty to possession with intent to distribute at least 10 plants. At the time of Defendant's sentencing, the pertinent sentencing guideline provided that one marijuana plant was equivalent to one kilogram of marijuana, when fifty or more plants were involved. See U.S.S.G. § 2D1.1(c), n.* (November 1, 1990). The number of plants seized from Defendant was disputed; but for sentencing purposes, Defendant and the government agreed that Defendant would be held accountable for "more than 100 but less than 400." Defendant's guideline range, therefore, was 63 to 78 months. The court also noted that, had the guideline range been less than 60 months, the statutory mandatory minimum would have applied: Defendant's offense involved more than 100 plants. ¹ The district court sentenced Defendant to 63 months in prison; he appealed to this court, and we affirmed.

In November 1995, the Sentencing Commission (the Commission) amended U.S.S.G. § 2D1.1(c) to provide that each marijuana plant would be the equivalent of 100 grams, instead of one kilogram, of marijuana and designated that the amendment have retroactive effect. Defendant then filed this motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), arguing that his sentence under the new guideline would only be 27 to 33 months. The government argued that the statutory minimum would still apply, maintaining his sentence at a level of at least 60 months. The government pointed out that the district court had the discretion to resentence the defendant from 63 to 60 months but encouraged the court not to do so based on the facts and circumstances of the case. Then, the district court--after it reviewed the motions, the Government's January 12, 1996 Opposition to Defendant's Motion for Modification of Sentence, the record, and being otherwise duly advised--declined to resentence Defendant, and Defendant appealed.

Discussion

I. Amendment 516

Defendant argues that, in the light of the Commission's Amendment 516--an amendment of U.S.S.G. § 2D1.1(c) that reduces the weight attributable to a marijuana plant--his sentence should have been recalculated and lowered. He contends that the guideline amendment constructively alters the effect of 21 U.S.C. § 841(b)(1)(B), which requires a five year term of imprisonment for a person convicted of an offense involving "100 kilograms or more of a mixture or substance containing a detectable amount of marijuana, or 100 or more marijuana plants regardless of weight." (emphasis added). Defendant essentially says that the amendment--and Congress's endorsement of it--demonstrates the Commission's and Congress's belief that the previous weight levels for calculations were too rigid and resulted in unfairly harsh sentences: In other words, the statutory minimum has been, in effect, changed to reflect the intent and purpose of the guideline amendment.

Regardless of the guideline amendment, the language of the statutory minimum is clear and has been unaltered by Congress. The statute controls in the event of a conflict between the guideline and the statute. United States v. LaBonte, --- U.S. ----, ----, 117 S.Ct. 1673, 1677, 137 L.Ed.2d 1001 (1997). And the statute plainly states that the five-year mandatory minimum sentence applies in cases involving 100 plants or more, regardless of weight. As one court summarized:

Although the inconsistency between the amended guideline and the statute produces a seemingly arbitrary disparity and results in a dual system between the guidelines and the statute, Congress' acquiescence to the guideline cannot alter the explicit language of the statute, which imposes a mandatory minimum sentence for violations involving one hundred or more plants "regardless of weight." The eradication of this anomaly requires Congressional action, not judicial legerdemain, to bring the statutory quantities into line with the guidelines.

United States v. Emigh, 933 F.Supp. 1055, 1057-58 (M.D.Fla.1996) (internal citation omitted).

Of the circuit courts to consider this specific issue, all have agreed that Amendment 516 does not affect the statutory minimum sentence. See United States v. Mullanix, 99 F.3d 323, 324 (9th Cir.1996); United States v. Marshall, 95 F.3d 700, 701 (8th Cir.1996); United States v. Silvers, 84 F.3d 1317, 1325 (10th Cir.1996); see also United States v. Gonda, 99 F.3d 1140 (6th Cir.1996) (unpublished opinion).

Defendant's reliance on United States v. Munoz-Realpe, 21 F.3d 375 (11th Cir.1994), is misplaced. In Munoz-Realpe, this court was faced with the question of whether an amendment to the guideline's definition of cocaine base should affect calculations under the mandatory minimum statute, despite a previous--and different--pronouncement by this court of the definition of "cocaine base" as used in the statute. In determining that the guideline applied, and not the court's prior definition, we wrote When the Sentencing Commission proposes an amendment to the Guidelines themselves (as opposed to commentary or other explanatory matter), the amendment is first submitted to Congress, which may act to disapprove or change the proposed amendment within a specified time (at least 180 days). 28 U.S.C. § 994(p). If Congress takes no action, the amendment becomes effective. Id. By allowing the amendment to take effect, Congress has given its imprimatur to the new definition of "cocaine base"; Congress indicated that it intends the term "cocaine base" to include only crack cocaine. Because Congress has provided this new definition, we think it is proper for us to look to the Guidelines in determining the meaning of "cocaine base" in the mandatory minimum statute, especially since both provisions seek to address the same problem.

Munoz-Realpe, 21 F.3d at 377-78.

The crucial distinction, however, between Munoz-Realpe and our situation is that the statute at issue in that case did not define the term "cocaine base"; in enacting the mandatory minimum statute, Congress failed to fill in this blank. The Munoz-Realpe decision recognized that Congress's decision to allow the term "cocaine base"--which was previously undefined--to be defined by the Commission was the best evidence of Congress's intent. Munoz-Realpe, 21 F.3d at 378 n. 6 ("[W]e suggest that Congress has approved a particular definition of cocaine base in one context, which has persuasive force as to Congress' intended definition of the same term in a similar context."). ²

In contrast, no such ambiguity or "blanks" exist in the statute at issue here. Because the statute's language is plain, the alternative interpretations should have no effect. See Emigh, 933 F.Supp. at 1057. We conclude that Amendment 516 did not constructively alter the mandatory minimum statute; the statutory minimum, therefore, is applicable to Defendant's sentence.

II. Resentencing

Defendant also contends that, even if the mandatory minimum applies, the district court abused its discretion in refusing to resentence Defendant to the mandatory minimum sentence--60 months--without articulating reasons or factual findings. The government responds that it is clear from the record as a whole that the district court considered all of the section 3553(a) factors ³ and urges that the district court's decision should be affirmed on this basis.

When a sentencing guideline is amended and given retroactive effect, the district court, "after considering the factors set forth in section 3553(a) to the extent that they are applicable," may reduce a previous sentence under the amendment "if such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). The law permits, but does not require, the district court to resentence a defendant. United States v. Vazquez, 53 F.3d 1216, 1227-28 (11th Cir.1995).

In this circuit, we have not resolved the question of what findings--if any--a district court must make to explain its decision not to resentence a defendant. In United States v. Brown, 104 F.3d 1254, 1255 (11th Cir.1997), however, we intimated that detailed findings were probably unnecessary:

At least two other circuits, however, have held that specific findings are not required. United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 446, 136 L.Ed.2d 342 (1996); United States v. LaBonte, 70 F.3d 1396, 1411-12 (1st Cir.1995), [rev d on other grounds, --- U.S. ----, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997) ]. Those courts considered it sufficient that the sentencing court had stated the reasons for its action, Dorrough, 84 F.3d at 1311, or that the record clearly demonstrated the judge had considered the section 3553(a) factors, LaBonte, 70 F.3d at 1411.

Now, we decide that a district court commits no reversible error by failing to articulate specifically the applicability--if any--of each of the section 3553(a) factors, as long as the record demonstrates that the pertinent factors were taken into account by the district court.

Neither our recent decision in United States v. Carter, 110 F.3d 759 (11th Cir.1997), nor the cases cited therein, contradicts this view. In Carter, we said that, when determining whether to reduce the defendant's sentence, "[t]he court is not required to...