U.S. v. Novey, 95-6249

• Decision Date: 15 March 1996
• Docket Number: No. 95-6249,95-6249
• Citation: 78 F.3d 1483
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Antoin NOVEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1483

78 F.3d 1483

64 USLW 2627

UNITED STATES of America, Plaintiff-Appellee, v. Charles Antoin NOVEY, Defendant-Appellant.

No. 95-6249.

United States Court of Appeals Tenth Circuit.

March 15, 1996.

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CR-89-95-T).

Susan M. Otto, Federal Public Defender, Oklahoma City, Okla., for Defendant/Appellant.

Frank Michael Ringer, Assistant United States Attorney, Oklahoma City, Okla. (Patrick M. Ryan, United States Attorney, with him on the brief), for Plaintiff/Appellee.

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

This appeal from the denial of Charles Novey's petition to reduce his sentence implicates the authority of the United States Sentencing Commission to enact Amendment 506, which amended the commentary to United States Sentencing Guideline § 4B1.1 to reduce the penalty for career offenders. For the reasons stated below, we hold that the Commission exceeded its authority in enacting Amendment 506, and we AFFIRM the district court.

I.

In June 1989, Charles Novey pled guilty to making a false statement to the Postal Service, in violation of 18 U.S.C. § 1001, and possession with intent to distribute 3837.5 grams of marijuana, in violation of 21 U.S.C. 841(a)(1). Ten days prior to the guilty pleas, the government filed an information alleging that the defendant had been previously convicted of a controlled substance offense. Under 21 U.S.C. 841(b)(1)(C), the prior conviction raised the maximum penalty Novey could receive for his drug trafficking conviction from twenty to thirty years.

The presentence investigation report stated that Novey in fact had two prior convictions involving controlled substances. Based on these two prior convictions, the district court determined that Novey was a career offender for purposes of the United States Sentencing Guidelines. Guideline 4B1.1, which implements 28 U.S.C. 994(h), provides that "[a] career offender's criminal history category in every case shall be Category VI" and that the defendant's offense level is to be calculated on the basis of the "Offense Statutory Maximum." The district court found that the Offense Statutory Maximum for Novey's drug trafficking conviction was thirty years, as this was the maximum sentence he could receive after applying the enhancement under 21 U.S.C. 841(b)(1)(C). Under the Career Offender Guideline, an Offense Statutory Maximum of twenty-five years or more results in an offense level of 34. The court thus calculated a level 34 and category VI range of 262 to 327 months. Novey was sentenced to 262 months on the drug trafficking charge and 40 months, to run concurrently, on the false statements charge.

The district court's calculation of Novey's sentence was affirmed by this court. See United States v. Novey, 922 F.2d 624 (10th Cir.), cert. denied, 501 U.S. 1234, 111 S.Ct. 2861, 115 L.Ed.2d 1028 (1991). However, effective November 1, 1994, the United States Sentencing Commission enacted Amendment 506, which modifies the application note defining "Offense Statutory Maximum" for purposes of Guideline 4B1.1. ¹ As amended, application note 2 to 4B1.1 provides that the Offense Statutory Maximum "refers to the maximum term of imprisonment authorized ..., not including any increase in that maximum term under a sentencing enhancement provision that applies because of the defendant's prior criminal record ...." (emphasis added). As directed by the amended application note 2, the Offense Statutory Maximum for Novey's offense would be only twenty years: the maximum penalty provided by 21 U.S.C. 841(b)(1)(C) without the enhancement for a prior felony conviction. This recalculation would lower Novey's offense level from 34 to 32, and would lower the appropriate sentencing range from 262-327 months to 210-262 months.

Based on Amendment 506's reduction of the applicable Guidelines range to his offense, Novey filed a motion pursuant to 18 U.S.C. 3582(c) and 3742(a)(2) seeking a reduction of his sentence. The government responded that Amendment 506 is invalid, as it is inconsistent with Congress' mandate that sentences for career offenders be set "at or near the maximum term authorized." 28 U.S.C. 994(h). The district court agreed with the government that Amendment 506 "clearly conflicts" with 994(h). Accordingly, the district court found Amendment 506 "not binding" and denied Novey's motion for sentencing relief pursuant to that amendment. We affirm.

II.

The Sentencing Guidelines are promulgated by the Sentencing Commission pursuant to the enabling legislation enacted by Congress. See 28 U.S.C. 991-998. The duties of the Commission are enumerated at 28 U.S.C. 994. At issue in this case is section 994(h), which provides:

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 or older and [has been convicted of a crime of violence or enumerated felony drug offense and has at least two such prior convictions].

Pursuant to this statutory mandate, the Commission promulgated Guideline 4B1.1, entitled "Career Offender." The Guideline's definition of career offender tracks the language of 994(h):

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

Section 4B1.1 goes on to provide that a career offender automatically receives a criminal history of VI, and the defendant's offense level is keyed to the "Offense Statutory Maximum."

Before the enactment of Amendment 506, the commentary to Guideline 4B1.1 defined Offense Statutory Maximum simply as "the maximum term of imprisonment authorized for the offense of conviction that is a crime of violence or controlled substance offense." U.S.S.G. 4B1.1, comment., n. 2 (Nov. 1993). The commentary further explained that "[t]he legislative history of this provision suggests that the phrase 'maximum term authorized' should be construed as the maximum term authorized by statute." Id., comment., back'd. Where a statute, such as 21 U.S.C. 841(b)(1)(C), provides for an enhanced maximum penalty because of a defendant's prior criminal record, the circuit courts that addressed the issue prior to the Sentencing Commission's adoption of Amendment 506 have interpreted "Offense Statutory Maximum" to mean the enhanced statutory maximum. See United States v. Smith, 984 F.2d 1084, 1086-87 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 204, 126 L.Ed.2d 161 (1993); United States v. Sanchez, 988 F.2d 1384, 1394-97 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 217, 126 L.Ed.2d 173 (1993); United States v. Saunders, 973 F.2d 1354, 1364 (7th Cir.1992), cert. denied, 506 U.S. 1070, 113 S.Ct. 1026, 122 L.Ed.2d 171 (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). Under this interpretation, a defendant's prior convictions are, in effect, used twice: first to enhance the defendant's criminal history category and again to enhance the defendant's offense level. The courts, while acknowledging this result, found it to be consistent both with Guideline 4B1.1 and with Congress' desire to sentence career offenders at or near the statutory maximum. See, e.g., Smith, 984 F.2d at 1087.

With Amendment 506, the Commission amended application note 2 of the Commentary to 4B1.1 to define the term "Offense Statutory Maximum" as the statutory maximum without considering any enhancement based on the defendant's prior criminal record. The amended definition reads, in part, as follows:

"Offense Statutory Maximum," for the purposes of this 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 a defendant's prior criminal record (such sentencing enhancement provisions are contained, for example, in 21 U.S.C. 841(b)(1)(A), (b)(1)(B), (b)(1)(C), and (b)(1)(D))....

U.S.S.G. 4B1.1, comment., n. 2 (Nov. 1994).

The government protests, and the district court agreed, that this definition of "Offense Statutory Maximum" is inconsistent with 994(h)'s mandate that a sentence be set for career offenders that is "at or near the maximum term authorized."

III.

"[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). Our review of any amendment to the commentary is therefore deferential. ² Nonetheless, the Sentencing Commission does not have the authority to override or amend a statute. See Neal v. United States, --- U.S. ----, ----, ----, 116 S.Ct. 763, 766, 768, 133 L.Ed.2d 709 (1996). We are compelled by the clear directive of 994(h) to hold that Amendment 506 is inconsistent with that statute, and is therefore invalid as beyond the scope of the Commission's authority delegated to it by Congress.

We turn first to the language of 994(h) itself. The statute directs the Commission to assure that the guidelines specify a sentence "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 crime of violence or enumerated drug offense and has two such prior convictions]."...