U.S. v. Rouse

• Decision Date: 26 March 2004
• Docket Number: No. 02-4956.,02-4956.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony K. ROUSE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

362 F.3d 256

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

No. 02-4956.

United States Court of Appeals, Fourth Circuit.

Argued: January 21, 2004.

Decided: March 26, 2004.

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ARGUED:

J. Lloyd Snook, III, Snook & Haughey, P.C., Charlottesville, Virginia, for Appellant. Nancy Spodick Healey, Assistant United States Attorney, Charlottesville, Virginia, for Appellee.

ON BRIEF:

John L. Brownlee, United States Attorney, Charlottesville, Virginia, for Appellee.

Before WILKINS, Chief Judge, and NIEMEYER and TRAXLER, Circuit Judges.

OPINION

WILKINS, Chief Judge:

Anthony K. Rouse appeals the sentence imposed on him by the district court following his plea of guilty to conspiracy to distribute cocaine base, see 21 U.S.C.A. § 846 (West 1999). Rouse argues that the district court was required by United States Sentencing Guidelines Manual § 5G1.3(b) (2000) to impose his federal sentence to be served concurrently with a state sentence Rouse was serving for a previous drug distribution conviction. We affirm.

I.

Rouse was involved in a drug distribution conspiracy in Orange County, Virginia, between 1999 and late 2000. The primary object of the conspiracy was the distribution of cocaine base. On April 6, 2000, Rouse sold one third of a gram of cocaine base to an undercover officer ("the April 6 drug sale"). In April 2001, Rouse pleaded guilty in state court to distribution of cocaine and was sentenced to 13 years imprisonment with six and one-half years suspended.

In June 2001, Rouse pleaded guilty in federal court to one count of conspiracy to distribute 50 or more grams of cocaine base. Regarding the April 6 drug sale, the plea agreement provided:

The United States stipulates and agrees that my recent conviction in April 2001 for drug distribution in Orange County, Virginia, was for a distribution that was a part of the conspiracy to which I am now pleading guilty in accordance with this plea agreement.

J.A. 14. The plea agreement also contained a stipulation by Rouse that "the total drug weight for which I should be held accountable ... is at least 50 grams but less than 150 grams of cocaine base, unless the presentence investigation shows a lesser amount." Id. at 13-14.

Consistent with the plea agreement, the presentencing report (PSR) predicated Rouse's base offense level on a drug quantity of between 50 and 150 grams of cocaine base. See U.S.S.G. § 2D1.1(c)(4). However, because Rouse is a career offender, his offense level was adjusted to level 37 based not on drug quantity, but rather on the statutory maximum penalty of life imprisonment for the offense of conviction.^* See id. § 4B1.1(A). After three levels were subtracted for acceptance of responsibility, Rouse's adjusted offense level was 34. This offense level, combined with the mandatory Criminal History Category VI, see id. § 4B1.1, resulted in a guideline range of 262 to 327 months imprisonment. Rouse raised no objections to the PSR.

At sentencing, the district court granted the Government's motion for a downward departure based on Rouse's substantial assistance, see id. § 5K1.1, and imposed the statutory minimum sentence of ten years. Following the imposition of this sentence, Rouse's counsel asked whether Rouse would receive any credit on his federal sentence for the state sentence Rouse was serving for the April 6 drug sale. The district court responded, "The Court has the authority to direct that the sentence run consecutively or concurrently.... [I]n this case, it does seem appropriate to the Court that he serve these sentences consecutively...." J.A. 38. Counsel did not object.

Rouse now appeals, arguing only that the district court was required to order that his federal sentence be served concurrently with his state sentence.

II.

Section 5G1.3 of the Guidelines provides instructions concerning the imposition of sentence when the defendant is subject to an undischarged term of imprisonment. At the time of Rouse's sentencing, § 5G1.3 provided in pertinent part:

(b) If ... the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.

(c) (Policy Statement) In any other case, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.

U.S.S.G. § 5G1.3(b), (c). Rouse contends that the April 6 drug sale was "fully taken into account" in his sentencing for the instant offense and thus that the district court was required by § 5G1.3(b) to impose a concurrent sentence.

The Government contends, and we agree, that Rouse did not adequately raise this issue before the district court. While Rouse's counsel did inquire of the court whether the federal sentence would be served concurrently or consecutively to the state sentence, he neither cited § 5G1.3(b) nor argued that the court was required to impose a concurrent sentence. Therefore, our review is for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish plain error, Rouse must show that an error occurred, that the error was plain, and that the error affected his substantial rights. See Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even if Rouse makes this three-part showing, correction of the error remains within our discretion, which we "should not exercise ... unless the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (alteration in original)).

A.

Before turning to the application of the plain error standard, we pause for a housekeeping matter. Effective November 1, 2003, § 5G1.3 and the accompanying commentary were amended. As amended, § 5G1.3(b) provides as follows:

If subsection (a) does not apply, and a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction ... and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be imposed as follows:

(1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and

(2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment.

U.S.S.G. § 5G1.3(b) (2003), available at http://www.ussc.gov/2003guid/5g1_3.htm. Clarifying amendments are relevant in our construction of previous versions of the guidelines. See United States v. Butner, 277 F.3d 481, 489 (4th Cir.2002). We therefore must consider whether the amendment of § 5G1.3(b) is clarifying or substantive.

A clarifying amendment "changes nothing concerning the legal effect of the guidelines, but merely clarifies what the Commission deems the guidelines to have already meant." United States v. Capers, 61 F.3d 1100, 1109 (4th Cir.1995) (internal quotation marks omitted). In contrast, "[s]ubstantive amendments typically reflect new policy choices by the Commission." United States v. Goines, 357 F.3d 469, 2004 WL 144119, at *4 (4th Cir. Jan.28, 2004). Our primary guide in determining whether an amendment is clarifying or substantive is the "purpose and effect" of the amendment. Capers, 61 F.3d at 1110. The Commission's characterization of an amendment as clarifying or substantive is relevant but not conclusive, for otherwise the Commission would be able to enact substantive amendments under the guise of mere clarification. See id.

The Commission has characterized the amendment of § 5G1.3(b) and its accompanying commentary as clarifying. See U.S.S.G.App. C, amend. 660. Nevertheless, application of the principles outlined above makes it clear that the amendment is substantive. Prior to the amendment, a prior offense could be "fully taken into account" even if inclusion of the offense as relevant conduct did not effect a change in the defendant's offense level. Compare U.S.S.G. § 5G1.3, comment. (n.2) (providing an example in which the offense of conviction involved the sale of 30 grams of cocaine and "the defendant is held accountable for the sale of an additional 15 grams of cocaine, an offense for which the defendant has been convicted and sentenced in state court"), with U.S.S.G. § 2D1.1(c)(13) (providing a base offense level of 14 for "[a]t least 25 G but less than 50 G of Cocaine"). The amended guideline, however, requires the conduct underlying the prior conviction to have been "the basis for an increase in the offense level for the instant offense." U.S.S.G. § 5G1.3(b) (2003). The amendment thus "works a substantive change in the operation of the guideline," Capers, 61 F.3d at 1110, and cannot be considered clarifying.

B.

Turning to review of the issue before us, we first must decide whether there was error. The question on appeal — whether the April 6 drug sale was "fully taken into account in determining the offense level for the instant offense" — involves two subsidiary questions: (1) What rule applies in determining whether a prior offense has been fully taken into account? and (2) How does that rule apply here? These are both issues of guideline interpretation subject to de novo review. See Elliott v. United States, 332 F.3d 753, 761 (4th Cir.), cert. denied, 540 U.S. 991, 124 S.Ct. 487, 157 L.Ed.2d 388 (2003).

In interpreting a guideline, ordinary...