United States v. Montanez

• Decision Date: 30 May 2013
• Docket Number: Docket Nos. 11–4933–cr(L) & 11–4935–cr(con).
• Citation: 717 F.3d 287
• Parties: UNITED STATES of America, Appellee, v. Edwin MONTANEZ, aka Sha, aka Sha Dic, aka Shadigga, aka Shy, Ken Kinsey, Jr., aka Benji, aka Jade, Karriem Williams, aka Calo, Larry Benton, aka Weezy, aka Lil Wayne, aka Squeezy, Quantae Wright, aka Little Nova, Andre Robinson, aka Dre Dre, aka Team, Marc L. Stanley, aka Imf, Robert Murray, aka Killa, aka Killer, Patrick Brumfield, aka P–Dog, Matthew Brumfield, aka Augustus, aka Stallion, Bobby Everson, aka Pino, aka Styles, Jeffrey Johnson, aka Bling, Defendants, Clifton Stith, aka Tony, aka Yayo, Adib Brantley, aka Sha Blood, Defendants–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

717 F.3d 287

UNITED STATES of America, Appellee,

v. Edwin MONTANEZ, aka Sha, aka Sha Dic, aka Shadigga, aka Shy, Ken Kinsey, Jr., aka Benji, aka Jade, Karriem Williams, aka Calo, Larry Benton, aka Weezy, aka Lil Wayne, aka Squeezy, Quantae Wright, aka Little Nova, Andre Robinson, aka Dre Dre, aka Team, Marc L. Stanley, aka Imf, Robert Murray, aka Killa, aka Killer, Patrick Brumfield, aka P–Dog, Matthew Brumfield, aka Augustus, aka Stallion, Bobby Everson, aka Pino, aka Styles, Jeffrey Johnson, aka Bling, Defendants,Clifton Stith, aka Tony, aka Yayo, Adib Brantley, aka Sha Blood, Defendants–Appellants.

Docket Nos. 11–4933–cr(L) & 11–4935–cr(con).

United States Court of Appeals, Second Circuit.

Argued: March 6, 2013.

Decided: May 30, 2013.

Paul D. Silver (John M. Katko, on the brief), Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, NY, for Appellee.

James P. Egan (Lisa A. Peebles, on the brief), Federal Public Defender's Office, Syracuse, NY, for Defendants–Appellants.

Before: KATZMANN, PARKER, Circuit Judges, and KUNTZ, District Judge. ^*

PER CURIAM:

This case presents two issues: (1) whether U.S.S.G. § 1B1.10(b)(2)(A) constitutes a valid exercise of the United States Sentencing Commission's authority, and thus binds district courts whenever they reduce a defendant's sentence under 18 U.S.C. § 3582(c)(2); and (2) whether, even if § 1B1.10(b)(2)(A) binds district courts, it nonetheless permits them to depart from a defendant's amended guideline range under U.S.S.G. § 4A1.3. Defendants–Appellants Adib Brantley and Clifton Stith appeal from two orders entered on November 16, 2011 by the United States District Court for the Northern District of New York (Mordue, J.). In those orders, the district court reduced Brantley's and Stith's terms of imprisonment under 18 U.S.C. § 3582(c)(2). Nonetheless, the district court concluded that U.S.S.G. § 1B1.10(b)(2)(A) prohibited it from reducing Brantley's and Stith's sentences “to a term [of imprisonment] that is less than the minimum of the[ir] amended guideline range[s].” Based on this conclusion, the district court declined to grant Brantley's and Stith's request for a departure under U.S.S.G. § 4A1.3, even though it had previously departed under that provision at the Defendants–Appellants' initial sentencings.

On appeal, Brantley and Stith argue that the district court erred in concluding that § 1B1.10(b)(2)(A) prohibited it from further reducing their sentences. First, they contend that § 1B1.10(b)(2)(A) does not bind district courts because the United States Sentencing Commission (“the Commission”) exceeded its authority when it enacted that provision. Second, they argue that, even if § 1B1.10(b)(2)(A) binds district courts, it does not prohibit them from departing under U.S.S.G. § 4A1.3 in order to account for the fact that a defendant's “criminal history category substantially over-represents the seriousness” of his past crimes. For the reasons set forth below, we affirm the district court's judgments.

I. Background

On June 4, 2007, Brantley pled guilty to one count of conspiracy to engage in a pattern of racketeering in violation of 18 U.S.C. § 1962(d). At his initial sentencing on December 6, 2007, Brantley's guideline range recommended a sentence of 151 to 188 months of imprisonment. Because the district court found that Brantley's criminal history category overstated the seriousness of his past crimes, it granted a downward departure under U.S.S.G. § 4A1.3(b), reducing his range to 121 to 151 months. Considering this range, the district court imposed a sentence of 135 months.

Stith's case has a similar history. On May 16, 2007, he pled guilty to one count of conspiracy to engage in a pattern of racketeering in violation of 18 U.S.C. § 1962(d). At his initial sentencing on December 10, 2007, Stith's guideline range was 140 to 175 months of imprisonment. The district court departed from Stith's guideline range under U.S.S.G. § 4A1.3(b), reducing that range to 121 to 151 months. Considering this range, the district court imposed a sentence of 121 months.

In 2010, Congress passed the Fair Sentencing Act (“FSA”), which sought to “restore fairness to Federal cocaine sentencing” by increasing the amounts of crack cocaine a defendant needed to distribute in order to trigger statutory sentencing minimums. Pub.L. No 111–220, §§ 1–2, 124 Stat. 2372, 2372 (2010). The FSA also authorized the Commission to “make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guidelines provisions and applicable law.” Id. § 8, 124 Stat. at 2374. Acting under this authority, the Commission amended the United States Sentencing Guidelines (“the guidelines”) to conform them to the new statutory scheme and to increase the amounts of crack cocaine a defendant needed to distribute in order to incur harsher penalties. U.S.S.G. app. C, amends. 748 & 750 (2011). Effective November 1, 2011, the Commission made the crack-cocaine amendments retroactive, applying them to defendants, such as Brantley and Stith, who had been sentenced before the amendments' enactment. U.S.S.G. app. C, amend. 759 (2011).

When it made the crack-cocaine amendments retroactive, the Commission also amended the guideline provision that governs the extent to which a district court may reduce a defendant's term of imprisonment in response to guideline amendments. Id. Under U.S.S.G. § 1B1.10(b)(2)(A), a district court may not “reduce [a] defendant's term of imprisonment ... to a term that is less than the minimum of the amended guideline range.” In 2010, the sentencing guidelines recognized an exception to § 1B1.10(b)(2)(A) wherever “the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing.” U.S.S.G. § 1B1.10(b)(2)(B) (2010).¹ In cases to which the exception applied— i.e., where the district court had previously departed from a defendant's guideline range— § 1B1.10(b)(2)(B) permitted the district court to grant “a reduction comparably less than the amended guideline range.” Id. The 2011 amendment narrowed the scope of § 1B1.10(b)(2)(B)' s exception, applying it only where a defendant had initially received a below-guideline sentence because she had provided “substantial assistance to authorities.” U.S.S.G. § 1B1.10(b)(2)(B) (2011); see also U.S.S.G. app. C, amend. 759 (2011).

In 2011, Brantley and Stith asked the district court to reduce their terms of imprisonment based on the retroactive amendments to the guidelines. The district court found that, under those amendments, Brantley had an amended guideline range of 110 to 137 months, and Stith had an amended guideline range of 100 to 125 months. On November 16, 2011, the districtcourt reduced Brantley's sentence to 110 months, and Stith's sentence to 100 months. Responding to Brantley's and Stith's requests for a downward departure under U.S.S.G. § 4A1.3, however, the district court stated that:

Under the new amendment to § 1B1.10 (eff. Nov. 1, 2011), defendants do not benefit from any previously-given downward departures except those given for substantial assistance.... Thus, this order modifying defendant's sentence ... does not reflect the previous departure from defendant's criminal history category under U.S.S.G. § 4A1.3(b).

Brantley's App'x at 95; Stith's App'x at 64.

Brantley and Stith now appeal.

II. Discussion

“We review the district court's interpretation of statutes and the [g]uidelines de novo.” United States v. Savoy, 567 F.3d 71, 72 (2d Cir.2009) (per curiam). Similarly, we review de novo any questions of constitutional interpretation raised by a district court's application of the guidelines. See United States v. Awadallah, 349 F.3d 42, 51 (2d Cir.2003).

Brantley and Stith advance two, alternative arguments. First, they argue that § 1B1.10(b)(2)(A) does not bind district courts for four different reasons: (1) the enactment of § 1B1.10(b)(2)(A) exceeded the authority that the Commission exercises under 28 U.S.C. § 994(u); (2) the enactment of § 1B1.10(b)(2)(A) required the Commission to exercise legislative power in violation of the Constitution; (3) § 1B1.10(b)(2)(A) usurps power that the Constitution reserves for the judiciary; and (4) the Commission failed, in enacting § 1B1.10(b)(2)(A), to comply with the notice-and-comment procedures required by 5 U.S.C. § 553. We have recently addressed each of these contentions. See United States v. Johnson, No. 12–921, slip op. at 8–17 (2d Cir. May 23, 2013). Specifically, we held in Johnson that: (1) “[i]n amending § 1B1.10[,] ... the Commission has done precisely that which it was permitted, and congressionally encouraged, to do,” id. at 11; (2) “Congress has ... sufficiently instructed the Commission as to both the contours of its authority ... and the means by which it may [exercise that authority],” id. at 13–14; (3) “the Commission [has not] ... wrongfully limit[ed] judicial powers,” id. at 16; and (4) “the Commission's failure to follow procedures prescribed under [5 U.S.C. § 553,] ... which [were] not required to amend a policy statement such as § 1B1.10, can[not] render that subsection invalid,” id. at 17. Thus, for the reasons set forth in Johnson, we agree with the district court that § 1B1.10(b)(2)(A) prohibited any reduction of Stith's and Brantley's sentences to a term of imprisonment that fell below their amended guideline ranges.

Second, Stith and Brantley argue that, even if § 1B1.10(b)(2)(A) bound the district court, it nonetheless did not prohibit the district court from departing under § 4A1.3. Section 4A1.3(b)(1) permits departures whenever a “defendant's criminal history category substantially over-represents the seriousness” of his past crimes. Stith and Brantley contend that courts may incorporate § 4A1.3...