U.S. v. LaBonte
| Decision Date | 02 August 1995 |
| Docket Number | Nos. 95-1538,95-1101 and 95-1264,95-1226,s. 95-1538 |
| Citation | 70 F.3d 1396 |
| Parties | UNITED STATES of America, Appellant, v. George LaBONTE, Defendant, Appellee. UNITED STATES of America, Appellee, v. David E. PIPER, Defendant, Appellant. UNITED STATES of America, Appellee, v. Alfred Lawrence HUNNEWELL, Defendant, Appellant. Stephen DYER, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, Jonathan R. Chapman and George T. Dilworth, Assistant United States Attorneys, were on brief, for the United States.
John A. Ciraldo, with whom Perkins, Thompson, Hinckley & Keddy, P.A. was on brief, Portland, ME, for George LaBonte.
Peter Clifford, Kennebunk, ME, for David E. Piper.
Michael C. Bourbeau, with whom Bourbeau and Bourbeau was on brief, Boston, MA, for Alfred Lawrence Hunnewell.
Cloud H. Miller, with whom Stephen Dyer was on brief pro se, Chuluota, FL, for Stephen Dyer.
Before SELYA, CYR and STAHL, Circuit Judges.
After many years of study and debate, Congress passed the Sentencing Reform Act of 1984, Pub.L. 98-473, tit. II, Sec. 212(a), 98 Stat. 1837 (1984) (). The legislation took effect on November 1, 1987, and caused dramatic changes both in the methodology of criminal sentencing and in the outcomes produced. These changes did not go unremarked: sentencing appeals, once rare in federal criminal cases, became commonplace. Predictably, the tidal wave of appeals loosed a flood of judicial opinions distilling the meaning, scope, and application of a seemingly boundless sea of guidelines, policy statements, notes, and commentary. And whenever it appeared that the flood waters might recede, the Sentencing Commission launched a fresh deluge of revisions that required the courts to paddle even faster in a Sisyphean effort to stay afloat.
These four consolidated appeals are emblematic of the difficulties that courts face in dealing with the new sentencing regime. All four appeals implicate Application Note 2 to the Career Offender Guideline, as modified by Amendment 506, United States Sentencing Commission, Guidelines Manual Sec. 4B1.1, comment. (n. 2) (Nov. 1994). No appellate court has addressed the validity of Amendment 506, and, in the quartet of criminal cases underlying these appeals, two able district judges reached diametrically opposite conclusions. Although the call is close, we hold that Amendment 506 is a reasonable implementation of the statutory mandate, 28 U.S.C. Sec. 994(h) (1988 & Supp. V 1993), and is therefore valid. Thus, after answering other case-specific questions raised by the various parties, we affirm the judgments in the LaBonte and Piper cases; vacate the judgment in the Hunnewell case and remand for reconsideration of the appropriateness of resentencing; affirm the judgment in the Dyer case in respect to all non-sentence-related matters and vacate the sentence-related aspect of that judgment, remanding for reconsideration.
Congress created the Sentencing Commission in 1984 to design and implement federal sentencing guidelines. Three principal forces propelled the legislation: Congress sought to establish truth in sentencing by eliminating parole, to guarantee uniformity in sentencing for similarly situated defendants, and to ensure that the punishment fit the crime. See U.S.S.G. ch. 1, pt. A(3), & 2; see also United States v. Unger, 915 F.2d 759, 762-63 (1st Cir.1990) (), cert. denied, 498 U.S. 1104, 111 S.Ct. 1005, 112 L.Ed.2d 1088 (1991). In addition to general guidance, see, e.g., 28 U.S.C. Sec. 991(b), Congress also gave the Commission some specific marching orders.
One such set of marching orders is conveyed by 28 U.S.C. Sec. 994(h), which provides in part:
The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and [has been convicted of a violent crime or felony drug offense and has at least two such prior convictions].
The Commission implemented section 994(h) through the Career Offender Guideline. See U.S.S.G. Sec. 4B1.1, comment. (backg'd). This guideline sets forth a table of enhanced total offense levels (TOLs)--said to be a function of the "Offense Statutory Maximum"--to be employed in calculating the sentences of so-called "career offenders." See U.S.S.G. Sec. 4B1.1. A defendant is regarded as a career offender if he was at least eighteen years old at the time of the offense of conviction, that offense is a crime of violence or a drug-related felony, and he has two prior convictions for drug felonies or crimes of violence. See id.; see also United States v. Piper, 35 F.3d 611, 613 n. 1 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1118, 130 L.Ed.2d 1082 (1995).
When the Commission issued the Career Offender Guideline, it coined the phrase "Offense Statutory Maximum," but did not define the phrase beyond saying that "the term 'Offense Statutory Maximum' refers to the maximum term of imprisonment authorized for the offense of conviction." U.S.S.G. Sec. 4B1.1, comment. (n. 2) (Nov. 1987). Since this definition was tautological, it proved unilluminating. Faced with a need to improvise, several courts of appeals concluded that the phrase encompassed not merely the statutory maximum applicable to the offense of conviction simpliciter, but also the upgraded statutory maximum that results after available enhancements for prior criminal activity are taken into account. See United States v. Smith, 984 F.2d 1084, 1085 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 204, 126 L.Ed.2d 161 (1993); United States v. Garrett, 959 F.2d 1005, 1009-11 (D.C.Cir.1992); United States v. Amis, 926 F.2d 328, 329-30 (3d Cir.1991); United States v. Sanchez-Lopez, 879 F.2d 541, 558-60 (9th Cir.1989). This lexicographical choice carried with it important consequences; under the courts' construction, a defendant whose maximum possible term of imprisonment for a crime of violence or drug offense was enhanced from, say, twenty to thirty years on account of prior criminal activity, netted two additional offense levels (increasing his TOL from thirty-two to thirty-four) and found himself in a steeper sentencing range.
In Amendment 506, the Commission first meaningfully defined the phrase "Offense Statutory Maximum." The amendment provides that the phrase, for the purpose of the Career Offender Guideline, "refers to the maximum term of imprisonment authorized for the offense of conviction that is a crime of violence or controlled substance offense, not including any increase in that maximum term under a sentencing enhancement provision that applies because of the defendant's prior criminal record." U.S.S.G. Sec. 4B1.1, comment. (n. 2) (Nov. 1994). The amended note offers the example of a defendant who is subject to a sentencing enhancement under 21 U.S.C. Sec. 841(b)(1)(C), in which case "the 'Offense Statutory Maximum' for the purposes of this guideline is twenty years and not thirty years." Finally, the Commission opted to give Amendment 506 retroactive effect. See U.S.S.G. Sec. 1B1.10(c) (Nov. 1994).
Initially, the Commission attempted to justify the amendment as "avoid[ing] unwarranted double-counting as well as unwarranted disparity associated with variations in the exercise of prosecutorial discretion in seeking enhanced penalties based on prior convictions." U.S.S.G., App. C, Amend. 506, at 409 (Nov. 1994). In addition, the Commission observed that Congress enacted the array of sentence-enhancing laws after the statutory predicate for the Career Offender Guideline had become law. See id. Subsequently, the Commission attempted to explain its newly emergent interpretation of the Career Offender Guideline in terms of a desire to avoid unwarranted disparity and to achieve consistency. See Amendment Notice, 60 Fed.Reg. 14,054, 14,055 (1995); see also United States v. LaBonte, 885 F.Supp. 19, 23 n. 4 (D.Me.1995). Whatever may be its provenance, it is nose-on-the-face plain that, in many instances, Amendment 506 produces lower TOLs (and, ultimately, shorter sentences) than the unembellished Career Offender Guideline (as interpreted by the courts). Due to this palliative effect, critics view it as inimical to congressional intent. 1
These four defendants all were sentenced in the District of Maine as career offenders prior to the birth of Amendment 506. In each instance, the prosecution filed a notice under 21 U.S.C. Sec. 851(a)(1) signalling its intention to seek enhanced penalties for prior convictions, and the sentencing court arrived at the defendant's "Offense Statutory Maximum" by factoring the statutory enhancement into the mix. The court then set each defendant's TOL and guideline sentencing range (GSR) accordingly. Following the promulgation of the amendment, all four defendants tried to avail themselves of it. We limn their individual circumstances.
A grand jury indicted LaBonte for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) & (b)(1)(C). After he pleaded guilty, the district court (Hornby, U.S.D.J.) sentenced him under the Career Offender Guideline. Using an enhanced statutory maximum derived from LaBonte's record of prior drug convictions, Judge Hornby set LaBonte's TOL at thirty-four, granted a three-level downward adjustment for acceptance of responsibility, see U.S.S.G. Sec. 3E1.1, arrived at a GSR of 188-235 months, and sentenced him to serve 188 months. We affirmed. See United...
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