U.S. v. Floyd

Decision Date27 August 2007
Docket NumberNo. 06-1513.,06-1513.
PartiesUNITED STATES of America v. Bennae FLOYD, Appellant.
CourtU.S. Court of Appeals — Third Circuit

John A. Abom (Argued), Abom & Kutulakis, Carlisle, PA, for Appellant.

Christy H. Fawcett, Lorna N. Graham (Argued), Office of the United States Attorney, Harrisburg, PA, for Appellee.

Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.

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. § 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 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

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, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and we now review sentences for reasonableness, United States v. Cooper, 437 F.3d 324, 326-27 (3d Cir.2006). 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 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 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

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.

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...

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