U.S. v. Havener, 89-1484

• Decision Date: 08 February 1990
• Docket Number: No. 89-1484,89-1484
• Citation: 905 F.2d 3
• Parties: UNITED STATES, Appellee, v. Larry C. HAVENER, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 3

905 F.2d 3

59 USLW 2011

UNITED STATES, Appellee, v. Larry C. HAVENER, Defendant, Appellant.

No. 89-1484.

United States Court of Appeals First Circuit.

Heard Feb. 8, 1990.

Decided June 5, 1990.

Judith Mizner, Newburyport, Mass., for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Nicholas M. Gess, Asst. U.S. Atty., Portland, Me., were on brief, for appellee.

Before BREYER, ALDRICH and TORRUELLA, Circuit Judges.

BREYER, Circuit Judge.

This appeal raises a narrow issue about the applicability of a change that the Sentencing Commission recently made in one of its guidelines. The guideline in question governs the sentencing of a "career offender," a person convicted for a third time of an offense involving drugs or violence. See United States Sentencing Commission, Guidelines Manual [hereinafter U.S.S.G.; all citations are to the latest edition of the Manual (November 1, 1989) unless otherwise noted] Sec. 4B1.1; 28 U.S.C. Sec. 994(h) (mandating that the Commission assure that certain "career" offenders receive a sentence to a term of imprisonment "at or near the maximum term authorized"). The change in question permits a two-level downward adjustment for the offender's "acceptance of responsibility." See U.S.S.G. App. C, at C.137 (setting forth Amendment 266 to the Guidelines, effective November 1, 1989). We conclude that the change comes too late to help the appellant, who was sentenced 6 months prior to its effective date. Because we reject his other arguments as well, we affirm the district court's judgment.

I. Background

After the appellant, Larry Havener, pled guilty to drug charges, the district court, on April 28, 1989, sentenced him to a prison term of 18 years (216 months). In doing so, the court applied the Sentencing Guideline for a career offender. See U.S.S.G. Sec. 4B1.1 (October 15, 1988). It found the relevant sentencing level, Level 32. It found the relevant Criminal History Category, Category VI. It found, at the relevant intersection of row and column, a guideline sentencing range of 210-262 months. And, it chose a sentence within that range, namely 216 months.

The court rejected Havener's argument that it should subtract two levels from Level 32 in light of Havener's "acceptance of responsibility." It conceded that Havener had indeed accepted responsibility for his crime, but it found that the special "career offender" guideline did not permit that deduction. We have held that the district court's interpretation of that guideline is correct. United States v. Alves, 873 F.2d 495, 498 (1st Cir.1989).

Subsequently, on May 17, 1989, the Sentencing Commission promulgated Amendment 266, and sent it to Congress for review. See 54 Fed.Reg. 21,348, 21,379 (May 17, 1989); 28 U.S.C. Sec. 994(p) (mandating a period of Congressional review before guideline amendments take effect). The amendment took effect on November 1, 1989. See U.S.S.G. App. C, at C.137. Havener argues here that the amendment makes a difference to his sentence.

II. Retroactive Application of Amendment 266

1. Havener argues that Amendment 266 applies to his case because it simply "clarifies" the preexisting guideline. The "clarification," in his view, shows that our initial interpretation of the unamended guideline, see Alves, 873 F.2d at 498, was incorrect.

We do not accept this argument because we do not believe the amendment simply clarifies the earlier guideline. The original "career offender" guideline instructed the sentencing court to calculate a sentence in the ordinary way, adjusting for "acceptance of responsibility" as appropriate. It then referred the court to a table and told the court to use the table's sentence level if it was higher than the level calculated in the ordinary way. See U.S.S.G. Sec. 4B1.1 (October 15, 1988). The guideline thereby quite clearly instructed the court not to make a further (acceptance of responsibility) adjustment after using the table. See Alves, 873 F.2d at 497-98.

The amendment adds a sentence to the "career offender" guideline. The new sentence tells the court what to do when the court applies the table and after the court applies the table. The new sentence says that the court then should determine whether the offender qualifies for an "acceptance of responsibility" adjustment, and, if so, the court should "decrease the offense level by 2 levels." U.S.S.G. Sec. 4B1.1. This new sentence is not clarification; it is change.

The Commission's explanation of Amendment 266's purpose also suggests the Amendment was not intended just to clarify the preexisting guideline. In the past, when the Commission has intended to change a guideline for purposes of clarification, it has normally explained that purpose, by, for example, explicitly mentioning "unclear or otherwise problematic ... interpretations" of the Guidelines that required a clarifying change. See, e.g., 53 Fed.Reg. 15,530 (April 29, 1988) (introducing a prior set of guideline amendments). In the case of Amendment 266, however, it said nothing about lack of clarity. Rather, it said simply that the "purpose of this amendment is to authorize the application of Sec. 3E.1.1 (Acceptance of Responsibility) to the determination of the offense level under this section." 54 Fed.Reg. 21,379 (May 17, 1989); U.S.S.G. App. C, at C.137. In addition, the Commission did not include Amendment 266 on the list of amendments to which it gave retroactive application. See U.S.S.G. Sec. 1B1.10(d), p.s. Had the Commission intended merely to clarify, would it not likely have made the clarification retroactive?

2. We have considered a further argument. One principle of statutory interpretation urges an appellate court to assume that a legislature intended a new law to apply to cases on appeal, even if the new law leads to a different outcome. As the Supreme Court has described this principle,

a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.

Bradley v. School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974); see Thorpe v. Housing Authority, 393 U.S. 268, 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969); New England Power Co. v. United States, 693 F.2d 239, 244-45 (1st Cir.1982). Does this principle require us to apply Amendment 266 to the case now before us?

After considering the parties' supplementary briefs on this point, we have concluded that the principle does not apply in the case before us. For one thing, as a general matter, the "law in effect" canon would seem to govern matters of procedural law, and substantive civil law; it does not ordinarily apply in the context of substantive criminal law. That is because the Constitution's ex post facto clause forbids the application of any law or rule that increases punishment to preexisting criminal conduct. See U.S. Const. Art. I, Sec. 9, cl. 3; cf. U.S. Const. Art. I, Sec. 10, cl. 1; Miller v. Florida, 482 U.S. 423, 429-35, 107 S.Ct. 2446, 2454, 96 L.Ed.2d 351 (1987) (holding that application of revised Florida guidelines law, which increased punishment for crimes in question, to defendant whose crimes occurred before the law's effective date, violated the ex post facto prohibition). At the same time, a special Congressional statute provides that new statutes that decrease punishment normally do not affect pending prosecutions. This latter statute says that the

repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

1 U.S.C. Sec. 109. Congress enacted this statute expressly to overcome the "law in effect" presumption, as embodied in the "common-law presumption that the repeal of a criminal statute resulted in the abatement of 'all prosecutions which had not reached final disposition in the highest court authorized to review them.' " Warden v. Marrero, 417 U.S. 653, 660, 94 S.Ct. 2532, 2536, 41 L.Ed.2d 383 (1974) (quoting Bradley v. United States, 410 U.S. 605, 607, 93 S.Ct. 1151, 1153, 35 L.Ed.2d 528 (1973)). Of course, this statute itself applies to statutes, not Commission rules. And it applies to substantive changes, not to "procedural" changes. See, e.g., Marrero, 417 U.S. at 661, 94 S.Ct. at 2537; Hallowell v. Commons, 239 U.S. 506, 508, 36 S.Ct. 202, 203, 60 L.Ed. 409 (1916); United States v. Obermeier, 186 F.2d 243, 254 (2d Cir.1950), cert. denied 340 U.S. 951, 71 S.Ct. 569, 573, 95 L.Ed. 685 (1951); United States v. Blue Sea Line, 553 F.2d 445, 448 (5th Cir.1977); United States v. Mechem, 509 F.2d 1193, 1194-95 (10th Cir.1975); United States v. Provenzano, 423 F.Supp. 662, 669 (S.D.N.Y.1976), aff'd, 556 F.2d 562 (2d Cir.1977). Yet, the change at issue here, affecting amount of punishment, would seem more substantive than procedural. And, given the statute, the ex post facto clause, and the absence of contrary authority, we cannot find a "law in effect" presumption at work in the field of substantive criminal law.

For another thing, the language of the sentencing statute, read literally, prevents us from applying the new amendment on appeal without authorization, express or implied, from the Sentencing Commission (an authorization lacking here). The relevant, complicated, statutory provision says that once a sentence "has been imposed," it must stand, with certain exceptions. Read literally, the words say that once the district court imposes the sentence, no one can change it, unless the offender shows some very unusual hardship, or some other statute permits such a change, or a court of appeals finds the sentence was unlawfully imposed,...