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.
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.