Change Attorneys and Courts Can Believe In: Reviewing the Retroactive Application of Amendments to the Federal Sentencing Guidelines in United States v. Tolliver, 570 F.3d 1062 (8th Cir. 2009)

• Publication year: 2021
• Citation: Vol. 90

90 Nebraska L. Rev. 862. Change Attorneys and Courts Can Believe In: Reviewing the Retroactive Application of Amendments to the Federal Sentencing Guidelines in United States v. Tolliver, 570 F.3d 1062 (8th Cir. 2009)

Change Attorneys and Courts Can Believe In: Reviewing the Retroactive Application of Amendments to the Federal Sentencing Guidelines in United States v. Tolliver, 570 F.3d 1062 (8th Cir. 2009)

Note(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 863

II. The Sentencing Guidelines ............................ 865
A. Application of the Guidelines ...................... 866
B. Modification of Sentences .......................... 869

III. Amendments .......................................... 869
A. Designated Retroactive Amendments-Amendment 706 ............................................... 870
B. Substantive or Clarifying Amendments- Amendment 651 ................................... 871

IV. The Circuit Split ...................................... 872
A. United States v. Flemming ........................ 873
1. Applicable Guideline Range .................... 873
2. Amendment 651 ............................... 875
B. United States v. Tolliver ........................... 876
1. Applicable Guideline Range .................... 877
2. Amendment 651 ............................... 878

V. Analysis .............................................. 878
A. The Flemming Test ............................... 879
B. A New Test ....................................... 880
C. Applying the New Test ............................ 882

VI. Conclusion ............................................ 885

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I. INTRODUCTION

Politicians enjoy talking about change. This was aptly demonstrated by Barack Obama's 2008 presidential campaign slogan: "Change We Can Believe In." While change is often viewed positively in the political arena, more often than not change proves to be painful and difficult-especially with the law. Arnold Bennett, a British novelist, once stated, "Any change, even a change for the better, is always accompanied by drawbacks and discomforts."(fn1) Change and its accompanying discomforts are familiar concepts to the attorneys and courts that regularly deal with the Federal Sentencing Guidelines (the Guidelines). There have been over 700 proposed amendments to the Guidelines since their inception in 1987.(fn2) Some of these changes have been minor clarifications or adjustments, while others have been large, substantive changes.(fn3) The amendments present attorneys and courts with difficult questions of what the changes mean for today's sentences, for future sentences, and for claims for post-conviction relief.

As a general rule, in claims for post-conviction relief, courts must apply the version of the Guidelines in effect at the time the defendant is sentenced.(fn4) Subsequent amendments to the Guidelines may be used, however, if the particular amendment has been (1) designated as retroactive by the sentencing commission or (2) the amendment is merely clarifying as opposed to substantive.(fn5) A recent circuit split on the effect of amendment 706(fn6) which lowered the base offense level

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for most offenses involving crack cocaine by two levels(fn7) illuminates both methods for retroactive application. Amendment 706, which created the split, was specifically designated retroactive,(fn8) and its retroactive applicability to sentences based solely on possession of crack cocaine was not contested. The split occurs when defendants are initially sentenced based on crack cocaine but their sentences are enhanced (because their criminal history qualifies them as career offenders under the Guidelines) and then reduced (because the judge grants them a 4A1.3 departure).(fn9) While the application of amendment 706 to career offenders created the split, another amendment- amendment 651-if applicable, may resolve it. Amendment 651 was not designated retroactive and, therefore, is only applicable if it is a clarifying amendment.(fn10)

The Eighth Circuit in United States v. Tolliver, relying in part on amendment 651, reached the correct conclusion that defendants convicted of crack cocaine offenses, who qualify as career offenders (an enhancement to their sentence) and are later granted a downward departure, are not eligible for a sentence reduction under amendment 706.(fn11) Though the conclusion is reasonable, the court failed to provide any justification for relying on amendment 651. The court never addressed whether the amendment was substantive or clarifying and its lack of reasoning was attacked by later decisions.(fn12)

This Note seeks to supplement the reasoning in Tolliver by explaining why the Eighth Circuit was justified in relying on amendment 651 to reach its conclusion and how properly resolving the applicability of amendment 651 cures the circuit split. More generally, this Note seeks to provide a framework for determining when subsequent amendments are clarifying and may properly be relied upon by attorneys and courts.

Part II of this Note discusses the Guidelines, their history, and their proper application. Part III reviews the retroactive applicability of amendments and specifically amendments 651 and 706. Part IV addresses the current circuit split and the divergent reasoning regarding the applicability of the amendments. Part V analyzes the flaws of both sides of the split in determining the applicability of amendment 651 and proposes a new test for determining when an amendment is clarifying or substantive. Part VI concludes the Note by describing how the new test not only resolves the current split regarding the application

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of amendment 706 but also provides a framework for analyzing the applicability of retroactive amendments going forward.

II. THE SENTENCING GUIDELINES

Prior to the 1984 Sentencing Reform Act (the Act),(fn13) sentencing was appropriately referred to as "the lottery."(fn14) Judges enjoyed a great deal of latitude at sentencing which often resulted in disparate and inconsistent sentences among similarly situated defendants.(fn15) The problem was exacerbated by the ability of the Parole Commission to reduce a defendant's sentence-often resulting in defendants serving one-third or less of their actual sentence.(fn16) Through the Act, Congress sought to eliminate the real and perceived disparities by creating a clear and uniform sentencing procedure.(fn17) The stated objectives of the Act were threefold: to achieve (1) honesty in sentencing, (2) uniformity in sentencing, and (3) proportionality in sentencing.(fn18) Honesty in sentencing was to be achieved by ensuring the sentence imposed would be the sentence actually served and the abolition of parole was thought to realize this objective.(fn19) Uniformity and proportionality, while the Guidelines note that tension exists between these objectives,(fn20) both seek the same goal: to ensure similar crimes and similar criminals receive a similar sentence.(fn21) Though striving for greater uniformity, Congress also sought to provide judges with some discretion by allowing for departures when the Guidelines failed

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to account for a particular aggravating or mitigating circumstance.(fn22) Three years after the passage of the Act, Congress enacted the Federal Sentencing Guidelines.(fn23)

The Guidelines are based on the United States Sentencing Commission's (the Commission) empirical evaluation of approximately 10,000 presentence investigations from pre-Guideline cases.(fn24) The Commission looked at "the differing elements of various crimes as distinguished in substantive criminal statutes, the United States Parole Commission's guidelines and statistics, and data from other relevant sources" to determine what courts considered important in pre-Guide-line sentencing practices.(fn25) The Guidelines resulted in a structured formula where specific traits of the criminal and specific facts of the crime are calculated to provide a defendant's sentencing range.(fn26)

A. Application of the Guidelines

While an extensive discussion of the Guideline's application process is not warranted in this Note,(fn27) a solid understanding of their application is important. As a starting point, the Guidelines must be applied in the particular order established by the Commission.(fn28) The application instructions (Instructions) for the Guidelines dictate that order and consist of nine steps (a)(i).(fn29) Applying these steps in order will provide courts with a sentencing range for a particular defendant.(fn30) The sentencing ranges are based on a grid, known as the Guidelines Sentencing Table (Sentencing Table), which consists of vertical (base offense level) numbers ranging from 1-43 and horizontal (criminal history category) numbers ranging from I-VI.(fn31) The first five steps of the Instructions relate to the vertical axis, or the defendant's

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base offense level.(fn32) The base offense level pertains to the defendant's conduct and starts with the number assigned by the Guidelines for a particular offense(fn33)-for example, possession of crack cocaine has a base offense level of eight.(fn34) From there, the Instructions ask the court to make any applicable adjustments, up or down, to the base offense level, including: adjustments for specific characteristics of the offense,(fn35) the defendant's role in the offense,(fn36) and the defendant's...