U.S. v. Mashek

• Decision Date: 10 May 2005
• Docket Number: No. 04-2560.,04-2560.
• Parties: UNITED STATES of America, Appellee, v. Shelly MASHEK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

406 F.3d 1012

UNITED STATES of America, Appellee, v. Shelly MASHEK, Appellant.

No. 04-2560.

United States Court of Appeals, Eighth Circuit.

Submitted: February 15, 2005.

Filed: May 10, 2005.

Rockne O. Cole, argued, Iowa City, Iowa, for appellant.

Matthew J. Cole, argued, Assistant U.S. Attorney, Cedar Rapids, Iowa, for appellee.

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Shelly Mashek pled guilty to a one-count information charging her with knowingly making available her residence for the purpose of manufacturing methamphetamine in violation of 21 U.S.C. § 856. She appeals the decision of the district court denying her a two-level reduction based on U.S.S.G. § 2D1.1(b)(6). U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(b)(6) (2003). The district court held that the two-level reduction is inapplicable to a sentence based on a conviction under 21 U.S.C. § 856 because this offense is not enumerated in the federal sentencing guidelines safety-valve provision, U.S.S.G. § 5C1.2(a).¹ On appeal, Mashek argues that the plain language of § 2D1.1(b)(6) does not incorporate the safety-valve provision's limitation to the specific offenses enumerated in § 5C1.2(a). We agree that the district court erred in calculating the appropriate federal sentencing guidelines range and that this error was not harmless. Therefore, we vacate Mashek's sentence and remand for resentencing.

I. BACKGROUND

After Mashek's guilty plea to a charge of knowingly making available her residence for the purpose of manufacturing methamphetamine, in violation of 21 U.S.C. § 856, the district court directed the U.S. Probation Office to prepare a presentence investigation report (PSR), including an initial calculation of Mashek's guidelines range. Applying U.S.S.G. § 2D1.8, the PSR cross-referenced to § 2D1.1, which provided for a base offense level of 28. Pursuant to § 2D1.1(b)(6),² the PSR recommended a two-level reduction because Mashek met the requirements of § 5C1.2(a)(1)-(5).³ The Government objected, arguing that the two-level reduction is only available for a defendant who is convicted of one of the offenses enumerated in § 5C1.2(a). The offense to which Mashek pled guilty, 21 U.S.C. § 856, is not among those enumerated in the safety-valve provision.

The district court upheld the Government's objection and denied the two-level reduction. The district court then granted a three-level acceptance-of-responsibility reduction, resulting in a total offense level of 25 with a guidelines range of 57 to 71 months. Finally, the district court granted the Government's U.S.S.G. § 5K1.1 motion for substantial assistance and departed downward from the guidelines range by approximately 20%, effectively reducing Mashek's total offense level by two levels. With an ultimate offense level of 23 and a sentencing range of 46 to 57 months, the district court sentenced Mashek to 46 months' imprisonment. Mashek's timely notice of appeal followed.

II. DISCUSSION

A. Post-Booker Appellate Review

We now know that relying on judicial fact-finding to impose a sentence under mandatory sentencing guidelines violates the Sixth Amendment. United States v. Booker, ___ U.S. ___, ___, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005). The Supreme Court recognized, however, that "[i]f the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment." Id. at 750. To remedy the constitutional violation, the Booker Court excised only those provisions of the Sentencing Reform Act that made the guidelines mandatory. Booker, 125 S.Ct. at 764-66. Guiding the Supreme Court's decision was, among other things, the desire to retain Congress's basic statutory goal of creating "a [sentencing] system that diminishes sentencing disparity." Id. at 759. To this end, only "two specific statutory provisions [were severed and excised]: the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range (in the absence of circumstances that justify a departure), see 18 U.S.C. § 3553(b)(1) (Supp.2004), and the provision that sets forth standards of review on appeal, including de novo review of departures from the applicable Guidelines range, see § 3742(e) (main ed. and Supp.2004)." Id. at 764; see also United States v. Christenson, No. 04-2084, 2005 WL 840125 (8th Cir. Apr.13, 2005) (reviewing the district court's downward departure based on § 5K1.1 for reasonableness).

Mashek does not argue that her sentence, pronounced under a mandatory guidelines system, is unconstitutional in light of Booker. Instead, Mashek only challenges the district court's interpretation and application of the relevant guidelines provision, § 2D1.1. However, we apply Booker's remedial holdings to all cases pending on direct review. Booker, 125 S.Ct. at 769. We must therefore determine the effect of, and standard of review for, a timely raised challenge to the district court's interpretation of the guidelines in light of Booker.

Under the sentencing scheme that survives Booker, both the defendant and the Government retain the statutory right to challenge on appeal the district court's interpretation or application of the guidelines. 18 U.S.C. §§ 3742(a), (b). "If the court of appeals determines that ... the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate." 18 U.S.C. § 3742(f)(1); see also Booker, 125 S.Ct. at 767 (recognizing that § 3742(f) remains applicable to appellate review under an advisory guidelines system). The duty to remand all sentences imposed as a result of an incorrect application of the guidelines exists independently of whether we would find the resulting sentence reasonable under the standard of review announced in Booker. As the Supreme Court has recognized in the context of departures, § 3742(f) does not provide for a reviewing court to affirm a sentence based on its overall reasonableness when it was imposed as a result of an incorrect application of the guidelines. Instead, § 3742(f)(1) commands the reviewing court to remand a case where the district court incorrectly applied the guidelines. Williams v. United States, 503 U.S. 193, 201-03, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992).

Given the statutory mandate to review the district court's interpretation and application of the guidelines independently of the reasonableness of the sentence, we must now determine the appropriate standard of review for such an inquiry. By excising subpart (e) from § 3742, the Supreme Court eliminated the familiar statutory standards of review for sentences imposed under the guidelines. The Supreme Court partially filled the resulting void when it concluded that sentences should be reviewed for reasonableness in light of § 3553(a). The Supreme Court did not, however, announce a standard for reviewing the legal conclusions inherent in the district court's application of the advisory guidelines.⁴ To fill this remaining void, we, like the Supreme Court, look to the implications of the remaining statutory provisions and to experience from past practices of appellate courts. Booker, 125 S.Ct. at 765.

In deciding that a sentence must be reviewed for reasonableness, the Supreme Court looked to appellate practices prior to the PROTECT Act, Pub.L. 108-21, § 401(d)(1), 117 Stat. 670 (2003). Booker, 125 S.Ct. at 765; see also United States v. Villegas, 404 F.3d 355 (5th Cir.2005). After examining our appellate practices prior to 2003,⁵ we believe the most appropriate standard for reviewing a district court's interpretation and application of the guidelines is the de novo standard. United States v. Mathijssen, No. 04-1995, 406 F.3d 496, 498, 2005 WL 1005003 (8th Cir. May 2, 2005); see also Villegas, 404 F.3d 355 (identifying the Fourth, Sixth and Tenth Circuits as continuing to review a district court's application of the guidelines de novo and adopting the de novo standard of review for the Fifth Circuit) (citing United States v. Hughes, 401 F.3d 540, 546-47, 556-57 (4th Cir.) (on panel rehearing), reh'g en banc denied, (Apr. 8, 2005); United States v. Hazelwood, 398 F.3d 792, 794-95, 800-01 (6th Cir.2005); United States v. Doe, 398 F.3d 1254, 1257-58 & n. 5 (10th Cir.2005)).

We see no reason to deviate in this one instance from our normal practice of reviewing de novo a district court's legal conclusions. We would expect that if the Supreme Court intended to change fundamentally the manner in which we review a district court's legal conclusions, even in just one circumstance, it would have said so explicitly. See Villegas, 404 F.3d 355 (concluding that Booker neither imposed the reasonableness standard for reviewing a district court's interpretation and application of the guidelines nor precluded appellate courts from reviewing such legal conclusions de novo). Finally, we believe that applying the de novo standard of review to the application of the guidelines under § 3742(f)(1) before reviewing the resulting sentence for reasonableness ensures fidelity to Congress's goal of diminishing sentencing disparities while preserving the constitutionality of the now-advisory guidelines.

In summary, post-Booker review of a timely raised challenge to the district court's interpretation and application of the guidelines is a two-step process. Cf. Mathijssen, 406 F.3d at 498 (noting that our review of the district court's application of the guidelines is different from our review of the ultimate sentence for reasonableness). First, we will continue to examine de novo whether the district court correctly interpreted and applied the guidelines.⁶ We will also continue to review...