Federal Sentencing Guidelines - Andrea Wilson

• Publication year: 1998

Federal Sentencing Guidelinesby Andrea Wilson^*

I. Introduction

Appeals attempting to resolve issues concerning the United States Sentencing Guidelines ("U.S.S.G.")¹ continue to require much of the resources of the Eleventh Circuit Court of Appeals. The sentencing guidelines are the driving force behind thousands of prosecutions and appeals each year. However, the number of amendments to the guidelines has diminished in recent years, and the court seems to be free to do more fine-tuning than in the past.

II. Overview of United States Supreme Court Cases Interpreting the Sentencing Guidelines

Any review of circuit case law must begin where the circuit court itself begins its analysis: with a discussion of precedent issued by the highest court of the land. Two opinions rendered by the Supreme Court in recent years played prominent roles in Eleventh Circuit cases in 1997. Last year, the Supreme Court issued two more opinions that will begin to shape the rulings of the Eleventh Circuit very soon.

A. Koon and Bailey: Already Under Scrutiny

These cases have been discussed in this publication in the past; however, they are just now being interpreted by the appellate courts.

Title 18, section 924(c) of the United States Code ("U.S.C.")² prescribes a mandatory penalty for defendants who "use or carry" a firearm during the commission of a drug, or violent, felony. In United States v. Bailey,³ the Supreme Court defined the term "use or carry" more narrowly than many circuit courts had in the past. Because the application of the term is by nature fact-specific, circuit courts of appeals have been interpreting and applying Bailey ever since it was issued.

In Koon v. United States,⁴ the Supreme Court attempted to clarify the standard of review for departures from the sentencing guidelines. Henceforth, departures are to be reviewed for abuse of discretion.⁵ Whether a factor is the appropriate basis for a departure is a question of law, and an incorrect determination of a question of law is an abuse of discretion.⁶ This holding maintains the right of district courts to depart from the guidelines and limits appellate review of those departures. Thus, in considering departures, courts must apply a strict standard by asking the following questions:

1) What features of this case, potentially, take it outside the Guidelines' "heartland" and make it a special or unusual case?

2) Has the Commission forbidden departures based on those features?

3) If not, has the Commission encouraged departures based on those features?

4) If not, has the Commission discouraged departures based on those features?⁷

B. Gonzalez and LaBonte: Fodder for the Future from Two 1997 Opinions

Criminal defendants often find themselves charged in both state and federal venues for the same-offense conduct. Congress and the Sentencing Commission have put forth a great deal of effort trying to balance the problems raised by these twin prosecutions. In one case, United States v. Gonzalez,⁸ defendants had been convicted in New Mexico state courts for holding up undercover officers at gunpoint during a drug sting operation.⁹ New Mexico sentenced defendants to prison, but they were soon convicted in federal courts of drug and gun charges stemming from the same conduct.¹⁰ They were convicted of violating 18 U.S.C. Sec. 924(c) for use of a firearm during a violent felony, which requires a sixty-month mandatory sentence that "shall [not] . . . run concurrently with any other term of imprisonment."¹¹ The district court read the statute literally and imposed the federal sentences consecutively to the state sentences.¹² The Tenth Circuit, finding a more ambiguous interpretation of section 924(c), held that when there is a state sentence for the same conduct already in place, section 924(c) does not require the federal sentence to run consecutively.¹³

A majority of the Supreme Court supported the district court's reading of the statute and held that the plain language of section 924(c) strictly prohibits a sentence under that subsection to be served concurrently with any state or federal sentence.¹⁴ Though this ruling seems clear enough, there are two strongly worded dissents. Justice Stevens was troubled that the majority's interpretation turned on the timing of the prosecutions—if the federal convictions had preceded the state convictions, there would have been no state sentence to run first, and the sentences could have been served concurrently.¹⁵ Justice Breyer, joined by Justice Stevens, added a different scenario—one in which the state has a statute identical to section 924(c).¹⁶ He believed this circumstance would create double jeopardy problems and treat certain federal offenders far differently from others.¹⁷ The majority refused to address these hypothetical situations,¹⁸ so the issue remains to be settled by the circuit courts of appeals. Practitioners should consider the implications when trying to resolve joint federal and state prosecutions, and they should carefully choose which forum takes the first shot at sentencing the defendant.

In United States v. LaBonte,¹⁹ the high Court invalidated an amendment that sought to define a critical term in the career offender guideline.²⁰ Again, as has become the norm, there was a strong dissent by Justices Breyer, Stevens, and Ginsburg.²¹ To understand the holding, one must first understand the career offender enhancement provision of the sentencing guidelines, its background, its language, and its amendments.

As part of the original implementation of the guidelines, Congress ordered the Sentencing Commission to assure that certain career offenders receive a sentence of imprisonment at or near the maximum term authorized.²² Several statutes, most notably 21 U.S.C. Sec. 841,²³ contain a tiered sentencing scheme based first on the offense and second on the defendant's prior record. For instance, the possession of five hundred grams of cocaine carries a five-year mandatory minimum for a defendant who has never been convicted of certain felonies. However, for that same offense, a defendant with one qualifying prior conviction is subject to a ten-year minimum mandatory sentence, and additional convictions lead to still higher mandatory penalties.²⁴

The Commission designed a guideline that applied increased offense levels based on the "offense statutory maximum" and then defined that term as "the maximum term of imprisonment authorized for the offense of conviction" but did not say whether the maximum term should include statutory enhancements based on criminal history.²⁵ Appellate courts began to interpret maximum term to include all statutory enhancements.²⁶ This was apparently not the result the Commission intended. Partly because the Commission was concerned about "double-counting" a defendant's prior convictions,²⁷ it amended the guideline to define "offense statutory maximum" as: "the maximum term of imprisonment authorized for the offense of conviction that is a crime of violence or controlled substance offense, not including any increase in that maximum term under a sentencing enhancement provision that applies because of the defendant's prior criminal record."²⁸

In deciding LaBonte, the Court was called upon to resolve consolidated appeals that had reached different results in the courts below. Each defendant had been sentenced as a career offender based on enhanced statutory penalties, and when the commission issued its retroactive amendment, each defendant moved to reduce his sentence. Defendants Hunnewell and Dyer were unsuccessful because the district judge hearing their cases found that the amendment ran afoul of 18 U.S.C. Sec. 841(b)(1)(C) and 29 U.S.C. Sec. 994(h).²⁹ Defendant LaBonte was more successful. A different judge of the same district applied the amendment and reduced LaBonte's sentence.³⁰ The appeals were consolidated and eventually made their way to the Supreme Court.³¹

The Supreme Court holding was simple enough: "[W]e hold that the phrase 'at or near the maximum term authorized' is unambiguous and requires a court to sentence a career offender 'at or near' the 'maximum' prison term available once all relevant statutory sentencing enhancements are taken into account."³²

The dissenting Justices found that the terms were ambiguous and found that the Sentencing Commission had the authority to interpret those terms as it deemed appropriate.³³ As one indication that the term "authorized" was ambiguous, the dissent maintained that the lengthy and complex discussion of policy and statutory construction contained in the majority opinion would not be necessary if the term were clear.³⁴

III. Opinions of the Eleventh Circuit Court of Appeals in 1997

A. Cases of General Sentencing Application

Although most of the opinions discussed in this Article directly interpret the sentencing guidelines, there are a few other topics that are sufficiently related to the guidelines to merit discussion.

1. Waiver of the Right to Appeal. The enforceability of appellate waivers in plea agreements is one topic that merits discussion. More and more defendants are agreeing to waive their right to appeal in hope of sustaining an appeal of guideline and other issues. Since 1993, the Eleventh Circuit has been enforcing these waivers and dismissing appeals.³⁵ Waivers almost always contain some exceptions, such as in the case of a sentence above the statutory maximum, so it is almost always necessary for the defendant to brief the case before any action can be taken on the waiver. When a review of the issues raised by the defendant makes it clear that they were waived, the government routinely files a motion to dismiss the appeal. As a matter of course, the Clerk of the Eleventh Circuit has been carrying those motions with the case, effectively requiring the government to brief the case before the court has an opportunity to determine whether the motion to dismiss should be granted.³⁶ The court, sympathetic to the undue...