Over-VI’ed

United States v. Preacely, No. 09-2580-cr (2d Cir. December 21, 2010) (Raggi, Lynch, Wallace, CJJ)

In this unusual, three-opinion decision the majority remanded for resentencing, finding that the record was ambiguous as to whether the district judge understood his departure authority.

Background

Jamar Preacely pled guilty to a five-year-mando crack conspiracy pursuant to a cooperation agreement. Twenty-seven years old when he was arrested, he had sustained several drug convictions when he was younger, and was categorized by the Sentencing Guidelines as a “career offender.”

He spent about two years in custody on the federal case, then was released on bail. For the next three years, it seems, Preacely turned his life around. He entered and excelled at several rehabilitation programs, stopped using drugs, and actively cooperated in several criminal investigations.

At sentencing, as a career offender, he faced an offense level of 31 and was automatically placed in criminal history category VI, with a sentencing range of 188 to 235 months. Despite a very strong government § 5K1.1 motion and the vigorous arguments of his counsel, the district court sentenced him to 94 months’ imprisonment.

Judge Wallace’s Opinion

A two-judge majority vacated the sentence. For his part, Judge Wallace found that the record was unclear whether the sentencing judge understood that he had the authority to depart “horizontally” from Category VI, even though the record made clear that the judge understood that he could downward depart in other ways.

What concerned Judge Wallace was that the judge repeatedly harped on the fact that Preacely was in category VI, and made it seem as if he did not understand that career offender treatment was not mandatory. For example, after hearing a summary of Preacely’s extraordinary rehabilitation, the judge answered: “I am dealing with a Category VI career offender, regardless of all of what you said.”

The Circuit remanded so that the district court could expressly consider departing from career offender treatment based on “an individualized consideration” of Preacely’s case.

Judge Lynch’s Opinion

Judge Lynch concurred, citing the same ambiguity in the record. The sentencing court was required to consider both Preacely’s evidence of rehabilitation and his designation as a “category VI” offender, not merely the latter. Judge Lynch also added some interesting language about the severity of career offender treatment, calling the resulting sentence here “distinctly inflated”: “[E]ven for a man with a history of multiple (if mostly minor) criminal convictions (almost exclusively tied to the possession and sale of narcotics), a sentence of nearly sixteen years in prison for the possession of a few thousand dollars worth of cocaine seems remarkably severe.”

Judge Raggi’s Opinion

Judge Raggi dissented because she did not see the any ambiguity in the record. The district court “frequently - and correctly - ... put Preacely in Category VI because he qualified as a career offender.” Moreover, the district court “manifested an understanding of its complete discretion to sentence outside the Guidelines.” Even if there were an ambiguity, however, Judge Raggi would have remanded for “clarification,” not for resentencing.

Sorry, Wrong Number

United States v. Poindexter, No. 07-1151-pr (2d Cir. February 10, 2009) (Walker, Calabresi, Katzmann, CJJ) (per curiam)

In 1995, Melvin Poindexter was charged with a cocaine conspiracy, with no drug quantity specified in the indictment. He therefore faced a 20-year maximum, but no mandatory minimum. Before trial, the government filed a prior felony information, which increased his statutory maximum to 30 years. After a jury convicted him, the court concluded that he was responsible for 15 to 50 kilograms of cocaine, and that he was a career offender. The court then used the career offender offense level for offenses with a statutory maximum of life, since that would have been his maximum if he had been indicted for the quantity of cocaine the court found, which of course, he was not. The corresponding guideline range was 360 to life, and the court sentenced him to 360 months. His original appeal did not challenge the district court’s selection of the higher base offense level.

In 2006, Poindexter filed a section 3582(c)(2) motion based on a retroactive Guideline Amendment, number 591, which requires that the initial selection of the offense guideline be based “only on the statute or offense of conviction,” and not on judicial findings. Poindexter correctly noted that the district court had erroneously selected the wrong career offender base offense level, because it did not use the one for the maximum term of imprisonment authorized for the offense of conviction. It used its own judicial fact-finding to compute a higher offense statutory maximum. Correctly calculated, Poindexter’s base offense level should have been 34, not 37.

Nevertheless, the district court denied the motion, and the circuit affirmed. The plain language of Amendment 591 “applies only to the choice of the applicable offense guideline” itself “and not to the subsequent selection of the base offense level.” The court agreed that career offender cases are somewhat different, since the career offender guideline uses the term “offense of conviction” to determine both the applicable guideline and the offense level within the guideline. Nevertheless, the court adopted the reasoning of an unreported Eleventh Circuit case to reject that distinction. Amendment 591 does not shape the meaning of “offense of conviction” throughout the Guidelines; it is “limited in scope to the determination of the applicable offense guidelines in Chapter Two of the Sentencing Guidelines.” Since Poindexter did not challenge the district court’s choice of applicable offense guideline, Amendment 591 does not help him.

Comment

While one cannot quibble with the reasoning of this case, the outcome is quite frustrating, since Poindexter’s sentence was clearly illegal. And this was no trivial error. The bottom of the correct range would have been nearly 100 months shorter - 262 instead of 360. The problem, of course, is that his attorneys did not raise the error originally, at least not in his first appeal; it is unclear whether they raised it when he was sentenced. One would hope that someone can figure out a way to get this guy some relief.

Building Block

United States v. Hurell, No. 06-5653-cr (2d Cir. January 28, 2009) (Kearse, Calabresi, Sack, CJJ) (per curiam)

In each of these three consolidated cases, all government appeals, the district court held that New York convictions for burglary in the third degree or attempted burglary in the third degree were not crimes of violence as defined in the career offender provisions of the Sentencing Guidelines. Based on an intervening decision, United States v. Brown, 514 F.3d 256 (2d Cir. 2008), the court reversed.

More importantly, however, the court noted that there is a circuit split on whether burglary of a building, as opposed to a dwelling, constitutes a crime of violence under the relevant sections. The court not weigh in on the issue here, but rather called upon the Sentencing Commission resolve it, noting that the issue is of “particular significance” in the quest to avoid unwarranted sentencing disparities.

Remand Performance

United States v. Ogman, No. 06-0203-cr (2d Cir. July 24, 2008) (Sotomayor, Livingson, CJJ, Preska, DJ) (per curiam)

This published opinion replaces a summary order filed in this case back in April. [It was blogged in that month’s Summary Summary.] The case holds that, in a crack cocaine prosecution, a Regalado remand is not warranted when the defendant was sentenced as a career offender. The range that applies in such cases is the product of the career offender guideline, and not of the 100-to-1 powder to crack ratio.

Youthful Indiscretion

United States v. Parnell, No. 06-4551-cr (2d Cir. April 23, 2008) (Winter, Straub, Sack, CJJ) (per curiam)

In this case, the court again holds that a New York youthful offender adjudication (a “y.o.”) - here, it was for attempted burglary in the second degree - must be included in the defendant’s criminal history score under the sentencing guidelines and, where applicable, can trigger the “career offender” enhancement.

There is nothing new or surprising about this. What is interesting about this case is its strong dicta that a y.o is not a predicate under the Armed Career Criminal Act (ACCA). Indeed, the circuit cites with approval United States v. Fernandez, 390 F. Supp.2d 277 (S.D.N.Y. 2005) (litigated and won by this very blogger), which so held, and notes that, here, the district court followed Fernandez in declining to sentence Parnell under ACCA, a sentence, not incidentally, that the government did not appeal.

Career Angst

United States v. Sanchez, No. 05-3812-cr (2d Cir. February 29, 2008) (Kearse, Straub, Pooler, CJJ).

In this long opinion, the court considered several challenges to recidivist sentences in a drug case. Two defendants, both “career offenders” under Guidelines section 4B1.1, got relief. A third, sentenced to an enhanced mandatory minimum, did not.

Career Offender

Title 28 U.S.C. § 994(h) directed the Sentencing Commission to develop Sentencing Guidelines for career offenders that would fix a Guideline range “at or near” the statutory maximum. Here, the district judge made statements that seemed to indicate that she believed that this section required her to sentence the defendants above the mandatory minimum, which was 120 months. She gave one defendant 235 months, and the other 188.

The court appellate court concluded that the district court’s apparent belief was incorrect. It noted that § 994(h) is a direction to the Commission, not the courts; moreover, there is no statute giving similar instructions to judges. Indeed, Congress rejected such legislation when fashioning the 1984 Sentencing Reform Act. The circuit concluded that for both defendants, the record was at least ambiguous as to whether the court would have imposed the same sentence if it correctly understood that § 994(h) did not restrict its sentencing authority.

The court remanded for clarification without vacating the sentences, and gave some interesting instructions for the remand. Since the policy considerations behind § 994(h) are relevant to several of the factors set out in 18 U.S.C. § 3553(a), this “must be taken into account” by the district court. The circuit instructed the district court to first “provide the necessary clarifications” regarding its reasons for imposing the sentences it selected, under a procedure similar to a Crosby remand. If that clarification reveals that the court would have imposed the same sentence, it need take no other action. If the clarification reveals that the district court would have imposed a different sentence on either defendant, then it should vacate that sentence and resentence him.

The Prior Felony Information

A third defendant received an enhanced mandatory minimum, 20 years instead of 10, after the government filed a prior felony information. See 21 U.S.C. § 851. The court rejected two constitutional challenges to the sentence.

First, it held that the statutory delegation to the United States Attorney of the power to raise the mandatory minimum did not violate the constitutional principle of separation of powers. Section 851 does give the government “some degree of control” over the ultimate sentence. But this is simply part of the government’s legitimate power to decide whether to prosecute at all and, if so, to decide which among the various available statutes - with different maximums and minimums - to use.

The defendant also argued that the government’s failure to explain why it had chosen to file a prior felony information against this one defendant, but not the others, was a due process violation. The court disagreed. Here, there was no evidence of an improper motive that would overcome the presumption of regularity of prosecutorial decision-making.