U.S. v. Kissick, 95-6055

• Decision Date: 06 November 1995
• Docket Number: No. 95-6055,95-6055
• Citation: 69 F.3d 1048
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Michael KISSICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1048

69 F.3d 1048

64 USLW 2367

UNITED STATES of America, Plaintiff-Appellee, v. Charles Michael KISSICK, Defendant-Appellant.

No. 95-6055.

United States Court of Appeals, Tenth Circuit.

Nov. 6, 1995.

Charles Michael Kissick, pro se.

Patrick M. Ryan, United States Attorney, Vicki Zemp Behenna, Assistant United States Attorney, Oklahoma City, Oklahoma, on the brief, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, McKAY, and HENRY, Circuit Judges. ^*

HENRY, Circuit Judge.

Petitioner Charles Michael Kissick appeals the district court's denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Sec. 2255. For the reasons set forth below, we vacate the district court's decision and remand for further proceedings.

I. BACKGROUND

In February 1989, a jury convicted Mr. Kissick of fourteen counts of various drug charges, including possession of cocaine with the intent to distribute, distribution of cocaine, and conspiracy to commit those offenses. Following his conviction, the United States Probation Office prepared a presentence report that classified Mr. Kissick as a career offender pursuant to Sec. 4B1.1 of the United States Sentencing Guidelines (USSG) on the basis of three related Oklahoma convictions for unlawful distribution of a controlled dangerous substance in 1971 and a 1985 conviction in Florida for possession of cocaine. Rec. vol. VIII, pt. B (presentence report). In light of these prior convictions the presentence report assigned Mr. Kissick a criminal history category of VI. Id. pt. C. The report also assigned Mr. Kissick a total offense level of 38, based in part on the amount of cocaine that he had distributed and on the fact that brown powder in plastic bags in Mr. Kissick's possession when he was arrested was subsequently determined to be cocaine base. The report concluded, "After cocaine base is converted to cocaine equivalent, the total amount attributable to the defendant is over 5 kilos." Id. pt. A, p 19.

Mr. Kissick objected to certain sections of the presentence report, and, on April 17, 1989, the district court held a sentencing hearing. At the conclusion of the hearing, the court found that certain testimony regarding quantities of cocaine allegedly distributed by Mr. Kissick was not credible. It therefore reduced the total amount of cocaine attributable to him.

Based on these findings, the court also reduced Mr. Kissick's offense level to 36. However, the court continued to assign Mr. Kissick a criminal history category of VI. Noting that the guidelines range was 324 to 405 months, the court sentenced Mr. Kissick to 328 months imprisonment for count 1 and counts 4 through 14. As to counts 2 and 3 (which alleged conduct before the effective date of the guidelines) the court imposed sentences of 10 years incarceration and ordered these terms to run concurrently with the sentences on the other counts. The court also imposed a 6 year term of special parole following Mr. Kissick's release from prison. Observing that application of the guidelines was harsh, the court stated that it sentenced Mr. Kissick at the lower end of the guidelines range, in part because the 1971 Oklahoma County convictions occurred when Mr. Kissick was 18 and serious punishment had not been imposed for those offenses.

On direct appeal, this Court affirmed Mr. Kissick's conviction and sentence. See United States v. Kissick, No. 89-6143 (10th Cir. May 30, 1990) (per curiam). Mr. Kissick then filed a motion to reduce his sentence, which the district court denied in February 1991.

In August 1994, Mr. Kissick filed the Section 2255 motion that is the subject of this appeal. He advanced two claims: (1) that he was entitled to resentencing under USSG Amendment 487, which became effective on November 1, 1993; and (2) that he should not have been sentenced as a career offender. The district court rejected both arguments, concluding that Amendment 487 should be applied prospectively and that Mr. Kissick's career offender challenge "was raised and argued by defendant at his sentencing and not pursued on appeal. The Court finds no basis to reconsider it now." Rec. supp. vol. I, doc. 135, at 5.

II. DISCUSSION

The district court's interpretation of the guidelines raises legal questions that we review de novo. United States v. Flower, 29 F.3d 530, 534 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 939, 130 L.Ed.2d 884 (1995). We also engage in de novo review of the district court's rulings on legal questions in Section 2255 proceedings. See United States v. Cook, 49 F.3d 663, 665 (10th Cir.1995). Findings of fact made by the district court in applying the guidelines must be upheld unless they are clearly erroneous. United States v. Bauer, 995 F.2d 182, 183 (10th Cir.1993).

A. Effect of Amendment 487

After Mr. Kissick's trial, his direct appeal, and the denial of his motion for reduction of sentence under Fed.R.Crim.P. 35, the Sentencing Commission amended USSG Sec. 2D1.1(c) to resolve an inter-circuit conflict regarding the definition of "cocaine base":

Section 2D1.1(c) is amended in the notes following the Drug Quantity Table by inserting the following additional paragraph as the third paragraph.

" 'Cocaine base,' for the purposes of this guideline, means 'crack.' 'Crack' is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.".

This amendment provides that, for purposes of the guidelines, "cocaine base" means "crack." The amendment addresses an inter-circuit conflict. Compare, e.g., United States v. Shaw, 936 F.2d 412 (9th Cir.1991) (cocaine base means crack) with United States v. Jackson, 968 F.2d 158 (2d Cir) (cocaine base has a scientific, chemical definition that is more inclusive than crack), cert. denied, [--- U.S. ----] 113 S.Ct. 664 (1992). Under this amendment, forms of cocaine base other than crack (e.g., coca paste, an intermediate step in the processing of coca leaves into cocaine hydrochloride, scientifically is a base form of cocaine, but it is not crack) will be treated as cocaine. The effective date of this amendment is November 1, 1993.

USSG App. C, Amend. 487 (November 1, 1993).

Mr. Kissick argues that this amendment should be applied retroactively to allow his sentence to be recalculated. He maintains that because the substance in his possession when he was arrested was "cocaine base" (in the broader sense) rather than crack, the substance should be treated as cocaine under Amendment 487 for purposes of making the guidelines calculation. Under Mr. Kissick's theory, the substance found in his possession should be treated as 46.3 grams of cocaine rather than the exponentially greater quantity used by the sentencing court after it employed a multiplier to convert the amount of cocaine base into a corresponding amount of cocaine. The district court rejected Mr. Kissick's argument, characterizing Amendment 487 as a substantive change in the guidelines that should be applied prospectively.

As a general rule, it is the guidelines provisions in effect at the time of sentencing that must be applied by the district court. USSG Sec. 1B1.11(a); United States v. Gerber, 24 F.3d 93, 95 (10th Cir.1994); United States v. Camacho, 40 F.3d 349, 354 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995). ¹ However, Congress has granted the Sentencing Commission the authority to determine whether and to what extent guidelines amendments that reduce sentences will be given retroactive effect. See 28 U.S.C. Sec. 994(a); Braxton v. United States, 500 U.S. 344, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991). Pursuant to 28 U.S.C. Sec. 994, the Commission has promulgated USSG Sec. 1B1.10, which lists specific amendments that sentencing courts may apply retroactively to reduce a defendant's sentence. ²

Additionally, even if an amendment is not listed in USSG Sec. 1B1.10, sentencing and reviewing courts may still give retroactive effect to amendments that are "clarifying (as opposed to substantive)." United States v. Capers, 61 F.3d 1100, 1109 (4th Cir.1995). The distinction between clarifying and substantive amendments is often difficult to draw. "Where the line is to be drawn may well reflect not only language and intent but also implicit judgments as to the Sentencing Commission's function and the role of guideline commentary." Isabel v. United States, 980 F.2d 60, 62 (1st Cir.1992). A variety of factors may be considered, including the Commission's characterization of the amendment, whether the amendment changes the text of the guidelines or merely the accompanying commentary, and whether the amendment alters the controlling pre-amendment interpretation of the guideline at issue. See Capers, 61 F.3d at 1109-10; Gerber, 24 F.3d at 96-97. Because Amendment 487 is not listed in USSG Sec. 1B1.10 as having retroactive effect, we must apply these factors to determine whether it is clarifying or substantive, and whether, as a result, it may be applied retroactively.

With regard to the third factor, this Circuit has held that an amendment that effectively overrules existing precedent should be classified as substantive rather than clarifying. United States v. Saucedo, 950 F.2d 1508, 1514 (10th Cir.1991), overruled on other grounds, Stinson v. United States, --- U.S. ----, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); see also United States v. Mondaine, 956 F.2d 939, 942 (10th Cir.1992) ("In Saucedo, we refused to accept the Commission's characterization of an amendment as merely clarifying because we were required to overrule precedent construing the guideline in order to interpret it consistently with the amended commentary.").

With regard to the issue raised by Mr. Kissick--whether the term "cocaine base," as used in USSG Sec. 2D1.1(c), includes substances other than crack--our Circuit had reached a conclusion contrary to the Sentencing...