U.S. v. Mondaine, 90-3282

• Decision Date: 10 February 1992
• Docket Number: No. 90-3282,90-3282
• Citation: 956 F.2d 939
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony MONDAINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 939

956 F.2d 939

UNITED STATES of America, Plaintiff-Appellee, v. Anthony MONDAINE, Defendant-Appellant.

No. 90-3282.

United States Court of Appeals Tenth Circuit.

Feb. 10, 1992.

David J. Phillips, Asst. Federal Public Defender (Charles D. Anderson, Federal Public Defender with him, on the brief), Kansas City, Kan., for defendant-appellant.

Robert S. Streepy, Asst. U.S. Atty. (Lee Thompson, U.S. Atty., with him, on the brief), Kansas City, Kan., for plaintiff-appellee.

Before SEYMOUR and EBEL, Circuit Judges, and MATSCH, District Judge ^*.

SEYMOUR, Circuit Judge.

Anthony Mondaine appeals the district court's calculation of his sentence for distribution of cocaine. Mondaine was charged in two counts of a three-count indictment. Count one alleged that on March 1, 1989, Gregory Payton distributed cocaine base in violation of 21 U.S.C. § 841(a)(1) (1988); count two charged Payton and Mondaine with distributing cocaine base on April 7, 1989; and count three alleged that Mondaine distributed cocaine base on April 18, 1989. Mondaine pled guilty to count two and was sentenced to seventy-eight months in prison and four years of supervised release under the applicable version of the United States Sentencing Commission's Guidelines Manual (hereinafter "Guidelines"). On appeal, Mondaine challenges his sentence, contending that the district court erred (1) by counting a municipal ordinance conviction toward his criminal history score; and (2) by considering criminal conduct other than his offense of conviction in assessing whether he was a minor participant in the offense for which he pled guilty. We review legal questions concerning the sentencing guidelines de novo. United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990).

I.

The presentence report (PSR) assigned Mondaine a criminal history score of seven, which placed him in category IV. In calculating this score, the PSR included one point for a 1979 misdemeanor conviction in municipal court for which Mondaine received a fine of $100. ¹ Over Mondaine's objection, the district court concluded that the applicable guideline did not exclude the municipal conviction from the calculation of Mondaine's criminal history.

A defendant is ordinarily sentenced under the guidelines in effect on the date of sentencing. See United States v. Saucedo, 950 F.2d 1508, 1512 (10th Cir.1991). Mondaine was sentenced on September 10, 1989. The relevant guideline provided that misdemeanor offenses are counted in a defendant's criminal history score with the following exceptions, one of which Mondaine urges applies here:

"Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense:

Contempt of court

Disorderly conduct or disturbing the peace

Driving without a license or with a revoked or suspended license

False information to a police officer

Fish and game violations

Gambling

Hindering or failure to obey a police officer

Leaving the scene of an accident

Local ordinance violations

Non-support

Prostitution

Resisting arrest

Trespassing."

Guidelines, § 4A1.2(c)(1) (emphasis added).

Mondaine argues that his 1979 misdemeanor conviction was for a local ordinance violation and that, under the guideline set out above, the conviction should not be counted because he did not receive a sentence of at least a year of probation or thirty days in jail. The district court disagreed, stating that a local ordinance violation does not fall within the quoted exclusion if it "mirrors a state misdemeanor law." Rec., vol. IV, at 18.

The plain language of the guideline states that local ordinance violations are excluded from the criminal history calculation unless those violations result in the requisite sentence of probation or imprisonment. The exclusion does not qualify the term "local ordinance violations" in any way. We therefore conclude that the sentencing judge proceeded under an erroneous construction of the guideline.

This guideline has since been amended to reflect the district court's view, and now specifically states that the exception excludes "local ordinance violations that are also criminal offenses under state law." Guidelines, § 4A1.2(c)(1) (effective Nov. 1, 1990). Although "[c]ourts frequently consider clarifying amendments to discern the Sentencing Commission's intent as to application of the pre-amendment guideline," Saucedo, 950 F.2d at 1514 (emphasis added), relying on a substantive amendment that occurs after the date of the offense at issue and operates to the detriment of a defendant raises critical ex post facto problems. Id. The Sentencing Commission views the amendment here as merely one that "clarifies the application of § 4A1.2(c)(1) in respect to certain offenses prosecuted in municipal courts." Guidelines App. C, at C.197. The Commission's characterization, while entitled to deference, is not conclusive. See United States v. Frederick, 897 F.2d 490, 494 (10th Cir.) (quoting United States v. Guerrero, 863 F.2d 245, 250 (2d Cir.1988), cert. denied, --- U.S. ----, 111 S.Ct. 171, 112 L.Ed.2d 135 (1990)). In Saucedo, we refused to accept the Commission's characterization of an amendment to the commentary as merely clarifying because we were required to overrule precedent construing the guideline in order to interpret it consistently with the amended commentary. In the instant case, while we do not have judicial authority interpreting the guideline at issue, the language of the guideline itself has been amended. Notwithstanding the deference due the Commission, such a change is substantive unless it does no more than " 'clarify a meaning that was fairly to be drawn from the original version.' " Frederick, 897 F.2d at 494 (quoting Guerrero, 863 F.2d at 250).

Here, the amendment adds to the language of the guideline so as to broaden the range of municipal ordinance violations countable in the criminal history calculation and increase the potential sentence. Given the plain meaning of the pre-amendment version under which all municipal ordinance violations without the requisite sentences are excluded, we conclude that the amendment makes a substantive change in the law rather than a clarification of pre-existing law. Accordingly, we hold that the pre-amendment version of the guideline is applicable. See United States v. Hewitt, 902 F.2d 1082 (2d Cir.1990) (amendment pending appeal that removed minor offense limitation not applied because it altered rather than clarified the guideline). Under that guideline Mondaine's municipal ordinance conviction should not have been considered part of his criminal history.

II.

Mondaine also argues that the district court erred in its application of the guideline that provides a reduction in a defendant's base offense level for his role in the offense. The guideline states: "Based on the defendant's role in the offense, decrease the offense level as follows: .... If the defendant was a minor participant in any criminal activity, decrease by two levels." Guidelines, § 3B1.2(b). Mondaine argues that in assessing the availability of the minor-participant reduction, a district court must consider only the defendant's role in the offense of conviction, without reference to other instances of criminal conduct. The PSR, which the district court found to be correct, recommended that the decrease be denied. In so doing, the report considered Mondaine's conduct in the alleged April 18 distribution of cocaine, an offense for which he was not convicted.

The government concedes that under our decision in United States v. Pettit, 903 F.2d 1336, 1341 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 197, 112 L.Ed.2d 159 (1990), the district court could look only at the offense of conviction in considering whether Mondaine was a minor participant. ² Nonetheless, the government contends that the court's determination was not clearly erroneous in view of the evidence, and must therefore be upheld on appeal. We disagree. The district court stated that it believed the PSR had correctly analyzed the minor-participant issue when the PSR had, in fact, erroneously rested its analysis in part on conduct other than that underlying...