Sunday, October 30th, 2011

Between the Cracks

United States v. Rivera, No. 10-1199 (2d Cir. October 21, 2011) (Katzmann, Chin, CJJ, Gleeson, DJ)

This interesting decision answers an unanswered question in the circuit’s jurisprudence on § 3582(c)(2) motions. The outcome is favorable for Mr. Rivera, but will likely not last. An amended version of U.S.S.G. § 1B1.10 goes into effect on November 1, 2011, that is, at least arguably, intended to render defendants in his situation ineligible for a sentence reduction.


Convicted by a jury, Rivera faced a base offense level of 38 for trafficking in more than 1.5 kilograms of crack cocaine. There were no adjustments, so 38 was also his total offense level. He was in criminal history category IV, so his range would have been 324 to 415 months. But, he was a career offender. The highest offense level in the career offender table is 37, so the district court correctly “borrowed” the actual offense level of 38, and matched it to the career offender criminal history category of VI. This produced a range of 360 to life. The court then departed down from level 38 by 3 levels due to Rivera’s mental health; at level 35 and category VI, the range was 292 to 365. The court sentenced him to 292 months’ imprisonment.

Rivera moved pro se for a sentence reduction based on the 2007 retroactive reduction in the guidelines for crack cocaine offenses, but the district court appointed counsel for him. It then twice held that, as a career offender, Rivera was ineligible for a reduction. Here, the circuit reversed.

The Court’s View

Two circuit opinions serve as the background to this. In Martinez, see “PC World,” posted July 28, 2009, the court held that a defendant who received a career offender sentence was ineligible for a sentence reduction under § 3582(c)(2) and § 1B1.10, because his sentencing range “remains unaltered by the crack cocaine amendments.” In that situation, the sentence was not “based on” a range that the Sentencing Commission has subsequently lowered. On the other hand, in McGee, see “Crack a Smile,” posted January 25, 2009, the court held that, where the district court departs from the career offender range to the range provided by the offense guidelines, the defendant is eligible because the sentence is “explicitly based on the range produced by the offense guideline.”

This case is unlike either of those, between the cracks, as it were. Rivera received neither a career offender sentence nor a sentence within the original, non-career offender range. Rather, in his case, the court departed by three levels from the career offender range due to Rivera’s mental health, and the resulting sentence was below, not within, the original offense guideline range.

The court’s view of the case turned on a fine analysis of the relevant provisions – § 3582’s requirement that the original sentence be “based on” a range that has subsequently been lowered, and § 1B1.10’s requirement that a defendant is only eligible if his “applicable guideline range” has been lowered. The court held that the two phrases should be understood to mean the same thing – “the range the initial sentence was ‘based on’ within the meaning of the statute is also generally the range that was ‘applicable’ within the meaning of the guideline.”

And, with that, the court had to decide which range Rivera’s sentence was “based on” – “that is, what was his ‘applicable’ sentencing range?” Was it the career offender range of 360 to life – or was it the departure range of 292-265?

The career offender guideline range would not change under the retroactive amendment – the offense level would drop from 38 (that was the crack quantity, which was higher than the career offender level of 37) to 37 (because applying the amendment to Rivera’s 3.3 kilograms of crack would reduce it to 36, so the career offender level would apply), but both 37 and 38 produce a range of 360 to life at CHC VI.

But, if his sentence was “based on” the range to which the court departed, he would be eligible for a reduction of up to 30 months. Under this scenario, the the starting point would have been level 37, and a departure to 34 would produce a range of 262 to 327. And this is the scenario that the majority went with: “We hold Rivera’s sentence was ‘based on’ the range produced by subtracting three offense levels from the career offender computation. The resulting range was the one the sentencing judge found to be ‘applicable’ to Rivera, and he chose a sentence at the low end of that range. That range is lowered when the retroactive amendment at issue is plugged into its calculation, even if everything else remains the same. Rivera is therefore eligible for a reduction.”

In the end, the circuit followed the reasoning of McGee, rejecting the government’s view that the sentence should be considered “based on” the pre-departure career offender range. Here, as in McGee, the court concluded that it would be excessively formalistic to conclude that the “applicable” range was the one rejected by the sentencing court. The court also found support for this methodology in the Supreme Court’s recent decision in Freeman, in which the plurality held that a court should “isolate whatever marginal effect the since-rejected Guideline had on the defendant’s sentence” and “revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence.” Here, that “marginal effect” is “easily isolated” as the 30-month difference between 262 and 292.

Finally, the court reinforced its view that its role in construing retroactive guideline amendments is so as to “allow inequalities to be fixed.” Accordingly, the court “let[s] lenity play a role in the construction of the Guidelines where there is doubt about their scope.” “Where the sentencing judge departs from a range computed under the career offender guideline to a lower range, the sentence imposed was ‘based on’ the latter range” under both § 3582(c)(2) and § 1B1.10. “If a subsequently-lowered guideline range was a relevant part of the analytic framework the judge used to determine the sentence … a § 3582(c)(2) proceeding [should] be available to allow the sentencing court the opportunity to remedy an injustice.”

The opinion with a long rejection of the approach of other circuits, which have construed the phrase “applicable guideline range” in career offender cases to be limited to the career offender range, regardless of the range within which the defendant is sentenced. To the Second Circuit, that phrase should be construed differently in the context of § 1B1.10 cases, where the question becomes not what the original range was, but what range the sentencing court actually applied, “even if, as in this case, that range different from the one that was the starting point of the initial sentencing proceeding.” Thus, “[n]ow that Rivera seeks a modification of his sentence, the 292-365 month range to which his sentencing judge departed is his applicable range.”

The court closes with an acknowledgment that the November 1, 2011, version of § 1B1.10 will “dramatically alter” this “landscape,” because it will codify a construction of “applicable guideline range” that the court “refuse[s] to give the existing guideline,” and will limit it it to the “pre-departure range from the initial sentencing.” Recognizing that this change would “render Rivera himself ineligible for a sentence reduction if it were applied to his case,” the court held that it could not “fairly be applied retroactively to Rivera” on remand.

Judge Katzmann wrote a concurring opinion, in which he agreed with both the majority’s outcome and its reasoning. But Judge Katzmann would rely more heavily on the rule of lenity. To him, the relationship between § 3582(c)(2)’s “based on a sentencing range that has subsequently been lowered” and § 1B1.10’s “applicable guideline range” is a “close and difficult question.” In McGee, the court resolved that question in the defendant’s favor under the rule of lenity, and to Judge Katzmann, McGee requires the same outcome here. The “ambiguity described in McGee does not disappear merely because Rivera’s departure falls under Chapter Five of the Guidelines Manual and was based on his diminished mental condition,” as opposed to the Chapter 4 departure at issue in McGee.

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