United States Court of Appeals
For the First Circuit
No. 09-1216
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL CARDOSA,
Defendant, Appellant.
____________________
No. 09-1231
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN RODRIGUEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
Judith H. Mizner, Assistant Federal Public Defender, Federal
Defender Office, for appellant Edwin Rodriguez.
Edwin Rodriguez on brief pro se.
Victoria M. Bonilla-Argudo, by appointment of the court, for
appellant Manuel Cardosa.
Manuel Cardosa on brief pro se.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief for
appellee.
May 28, 2010
BOUDIN, Circuit Judge. This decision addresses a single
(and recurring) problem that arises in the two appeals before us–-
those of Edwin Rodriguez and Manuel Cardosa--which were argued
together before the same panel and present variations on the theme.
The problem arises where a defendant who is found guilty of (or
pleads guilty to) a crack cocaine offense is classified at
sentencing as a career offender, the judge then gives a sentence
that varies or departs from the career offender guideline, and the
defendant later seeks resentencing on the ground that the crack
cocaine guidelines were thereafter lowered with retroactive
effect.1
This adjustment to the crack cocaine guidelines occurred
in 2007, after both of the convictions in this case, and it
provides the pivot on which both cases turn. Responding to
concerns about the disparity between the then-existing sentences
prescribed for dealing in cocaine powder and the far more severe
ones for equivalent amounts of crack cocaine, the U.S. Sentencing
Commission amended the guidelines for the latter to lower the
penalties for such violations and designated this change to have
retroactive effect. This does not by itself lower an existing
1
The relevant amendments are Amendment 706, which in 2007
reduced the base offense level associated with each quantity of
crack cocaine by two levels, U.S.S.G. app. C, amend. 706 (Supp.
Nov. 1, 2009), and Amendment 713, which made this retroactive, id.,
amend. 713. For convenience, we refer to these modifications as
having altered the "crack cocaine guidelines."
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sentence; rather, it allows a district court in its discretion to
revisit and revise a sentence previously imposed if the sentence
was "based on" the crack cocaine guidelines. See 18 U.S.C. §
3582(c)(2) (2006).
The facts in the two cases before us are uncomplicated.
In 2001, Edwin Rodriguez pled guilty to crack cocaine charges of
conspiracy, distribution, and possession with intent to distribute
(as well as to charges that he escaped from custody). Applying the
crack cocaine guidelines in force at the time, U.S.S.G. § 2D1.1
(2001), Rodriguez was initially classified as having an offense
level of 31 and a criminal history category of V; however, because
he had two prior predicate drug offenses, Rodriguez was classified
as a career offender, id. § 4B1.1, which resulted in an offense
level of 34 and a criminal history category of VI.2
At sentencing, the district court said that this
designation overstated the seriousness of Rodriguez' past acts,
that Rodriguez had suffered from difficult family circumstances and
that he had a "serious emotional disability." Based on these
factors, the district judge departed downward to an offense level
of 31 and a criminal history category of V. These were the offense
2
The base offense level was initially 32 under the crack
cocaine guidelines, but the district court applied a two-level
enhancement for obstruction of justice and a three-level reduction
for acceptance of responsibility. The base offense level was
initially 37 under the career offender guideline, but the three-
level reduction for acceptance of responsibility again applied.
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level and criminal history category that would have applied to an
ordinary crack cocaine case with comparable quantities, and the
180-month sentence imposed was around the middle of the resulting
range.
In 2008, while serving this sentence, Rodriguez filed a
motion to reduce this sentence based on the level-lowering
amendment to the crack cocaine guidelines already described. See
note 1, above. The district court rejected Rodriguez' motion. It
said that "[t]he fact that defendant was sentenced as a career
offender makes him ineligible for a sentence reduction" and relied
on this court's decision in United States v. Caraballo, 552 F.3d 6
(1st Cir. 2008), cert. denied, 129 S. Ct. 1929 (2009).3 Rodriguez
appealed from the refusal to consider resentencing.
Cardosa’s history is slightly different. In 2005, he
pled guilty to charges of possession with intent to distribute
cocaine base and was acquitted on firearms charges that went to
trial. At sentencing, based on prior predicate convictions, he was
classified as a career offender. The district judge chose to apply
the 2001 version of the guidelines when sentencing Cardosa. Under
those crack cocaine guidelines, his criminal history category would
3
In Caraballo, the career offender guideline was used as the
basis for calculating the sentencing range, with a variance granted
based on the defendant's medical condition, and this court held
that resentencing was precluded because the sentence was based on
the career offender guideline, not on the crack cocaine guidelines
that were subsequently lowered by the 2007 amendment. 552 F.3d at
11.
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have been VI and his adjusted offense level would have been 21,
while under the career offender guideline, his adjusted offense
level increased to 29, though his criminal history category
remained VI.4
At sentencing, the district judge said that the career
offender classification overstated Cardosa's criminal history and
that the court would "depart downward in this matter under the
guidelines to the offense level computation without the career
offender status." The district judge departed downward to an
offense level of 21, which resulted in a 77- to 96-month sentencing
range, the same range as would have applied had Cardosa never been
classified as a career offender. The judge imposed a 96-month
sentence, at the top end of the range.
In 2008, Cardosa filed a motion to reduce his sentence
based on the amendment to the crack cocaine guidelines; the
district court denied the motion, relying on Caraballo. Cardosa's
appeal followed. On his appeal, as on that of Rodriguez, the sole
issue is whether the district court had authority to consider
resentencing, an issue primarily (but not entirely) turning on the
interpretation of the governing statute.
4
The base offense level was 24 under the crack cocaine
guidelines and 32 under the career offender guideline, but in both
cases the district court applied a three-level reduction for
acceptance of responsibility.
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With limited exceptions, a sentence cannot be modified
once imposed, United States v. Jordan, 162 F.3d 1, 2-3 (1st Cir.
1998), cert. denied, 526 U.S. 1105 (1999), but one exception
established by statute is that post-sentence amendments to the
guidelines permit a district court to consider resentencing under
the following circumstances:
[I]n the case of a defendant who has been
sentenced to a term of imprisonment based on a
sentencing range that has subsequently been
lowered by the Sentencing Commission . . . the
court may reduce the term of imprisonment . .
. if such a reduction is consistent with
applicable policy statements issued by the
Sentencing Commission.
18 U.S.C. § 3582(c)(2). As noted above, the amendment that
modified the crack cocaine guidelines here was designated as one
that could be applied to those sentenced before its adoption, and
so Rodriguez and Cardosa claim they can benefit from it.
If a defendant not designated a career offender is
sentenced under the crack cocaine guidelines before the guideline
reduction, he may seek resentencing; if sentenced as a career
offender for the same offense, he may not as his sentence was not
based on the crack cocaine guidelines. United States v. Ayala-
Pizarro, 551 F.3d 84, 85 (1st Cir. 2008). What happens when a
defendant is classified as a career offender, but the judge
deviates from the career offender guideline and instead relies on
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a different guideline, is not straightforward, and the other courts
of appeals to have considered this question are divided.5
In the two cases before us, the district judges thought
our decision in Caraballo resolved this last issue and foreclosed
consideration of the resentencing motions. Construing our own
prior decision in that case, and construing the statute and
Sentencing Commission amendments at issue there and in this case,
present purely legal issues that we review de novo. Caraballo, 552
F.3d at 8-9. Our language in Caraballo may have misled the
district judges, but the circumstances there were different and
that decision–-which continues to be good law–-does not resolve the
appeals before us.
In Caraballo (see note 3, above), the district court
found that the defendant was a career offender, treated the career
offender guideline as the framework for the sentence, but then made
an adjustment in the defendant’s favor that cast no doubt on his
career offender designation but reflected an existing medical
condition (primarily the deterioration of his hips). See 552 F.3d
at 11; United States v. Caraballo, 447 F.3d 26, 26-27 (1st Cir.
5
Compare United States v. Munn, 595 F.3d 183, 194-95 (4th Cir.
2010) (allowing resentencing), United States v. McGee, 553 F.3d
225, 227-28 (2d Cir. 2009) (per curiam) (same), United States v.
Wesson, 583 F.3d 728, 732 (9th Cir. 2009), cert. denied, 2010 WL
373803 (2010) (dicta), and United States v. Moore, 541 F.3d 1323,
1329-30 (11th Cir. 2008), cert. denied, 129 S. Ct. 1601 (2009)
(dicta), with United States v. Darton, 595 F.3d 1191, 1195-97 (10th
Cir. 2010) (not allowing resentencing), and United States v.
Tolliver, 570 F.3d 1062, 1066-67 (8th Cir. 2009) (same).
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2006) (per curiam), cert. denied, 549 U.S. 928 (2006). Under these
circumstances, we held that the sentence was "based on" the
sentencing range prescribed for career offenders–-not the range
prescribed for crack cocaine offenses, which had never been
invoked–-so that the amendment lowering crack cocaine sentences
could not be used as a basis for resentencing. Caraballo, 552 F.3d
at 11.
This does not answer the question whether Cardosa's and
Rodriguez' sentences were "based on" the crack cocaine guidelines.
As a matter of words, one could say that a sentence was based on
the career offender guideline even if the judge, having found the
defendant to be a career offender, then chose to sentence the
defendant relying only upon the crack cocaine guidelines. But in
ordinary usage one would say that such a defendant had been
sentenced “based on” the crack cocaine guidelines and, if those
guidelines were later lowered by the Commission with retroactive
effect, then the defendant is eligible for resentencing.
Policy confirms this more natural reading. By statute,
the Commission may conclude that a guideline should be changed and
that it is just or suitable to allow a defendant sentenced under
the old guideline to request resentencing. 18 U.S.C. § 3582(c)(2);
28 U.S.C. § 994(o) (2006). Here, the old crack cocaine guidelines
were amended because the Commission concluded that the disparity
with powder cocaine, and an overstatement of the inherent dangers
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posed by crack, had produced an overly severe sentencing range for
crack. See U.S.S.G. app. C, amend. 706, Reason for Amendment;
Kimbrough v. United States, 552 U.S. 85, 94-100 (2007). Having
reduced the offense levels associated with the various quantities,
the Commission unsurprisingly also decided to allow resentencing
for defendants serving prison terms calculated under the old crack
cocaine guidelines.
The government says that such a defendant, if he had
initially been designated a career offender before the court
departed, could still be deemed one whose sentence was "based on"
the career offender guideline because that guideline was an initial
step: without it, the judge could hardly have had a guideline
sentencing range from which to depart. But the government fails to
explain why it would make sense to so read "based on," given that
it is both a less natural reading and is inconsistent with the
policy rationale for both the statute and amendments in this case.
The government next says that no new sentencing range is
established where a departure is ordered and so the statutory
precondition to resentencing, namely, that the defendant have been
originally sentenced "based on a sentencing range that has
subsequently been lowered by the Sentencing Commission," 18 U.S.C.
§ 3582(c)(2), is absent. The government's argument works in a case
like Caraballo where the adjustment of the career offender sentence
was based on a health problem and where there was no reliance on
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the crack cocaine guidelines. 552 F.3d at 8, 11. In such a case,
the sentence was not based on a guideline thereafter lowered.
But such cases are not all of one size or shape. Where
the judge in the original sentencing decides to depart from the
career offender guideline to some other guideline with its own
sentencing range, it is perfectly fair to say that the sentence
imposed is "based on" that adopted range and not the career
offender guideline range. And, where the guidelines chosen to
drive the sentence in lieu of the career offender guideline were
the crack cocaine guidelines, and those guidelines were later
reduced by the Commission with retroactive effect, the statutory
predicate to permit resentencing is satisfied.
Finally, the government seems to argue--based on supposed
usages in various statutes, guideline provisions and cases--that in
relation to eligibility for resentencing, any reference to a
"guideline range" or "sentencing range" is to a range that existed
before any departure is taken.6 That meaning is sometimes employed
and makes good sense where no other guideline range is adopted as
the final framework, but little sense where the departure is to a
new guideline: for then there is not one range in play but two, and
6
E.g., 18 U.S.C. § 3553(a)(4), (b)(1), (c); U.S.S.G. §§ 1B1.1,
1B1.1 cmt. n.1(E), 1B1.10, 1B1.10(b)(2)(B), 1B1.10 cmt. n.1(A),
1B1.10 cmt. n.3 (2009); United States v. Martin, 520 F.3d 87, 91,
96 (1st Cir. 2008); United States v. Roselli, 366 F.3d 58, 65 (1st
Cir. 2004).
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which is the proper referent can hardly be decided by looking at
instances where only one range exists.
So we conclude that where the defendant's existing
sentence was ultimately determined by the old crack cocaine
guidelines rather than by the career offender guideline,
resentencing is within the discretion of the district court. A
mere reference to the lower sentences provided by the crack cocaine
guidelines as a reason for a departure or variance is not enough.
Some cases will be easy to classify and some harder; but happily
there is a means of solving the problem of the harder, gray area
cases. We turn initially to Cardosa, whose case is easy, and then
address Rodriguez, whose case might appear a closer call.
At Cardosa's sentencing, the district judge stated not
only that the career offender guideline was not "a true reflection
of Mr. Cardosa's criminal history" but also that he was
"depart[ing] downward in this matter under the guidelines to the
offense level computation without the career offender status"
(emphasis added). The judge then employed the old crack cocaine
guidelines to determine the sentence. Cardosa's sentence was thus
plainly "based on" the crack cocaine guidelines, and so the
district judge is entitled to consider on remand whether he should
be resentenced.
As for Rodriguez, the district court said that the
career offender guideline range was "too high" and overstated the
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seriousness of his criminal history; but it also noted that--
somewhat akin to Caraballo--Rodriguez had difficult family
circumstances and suffered from diminished mental capacity.
Further, by contrast to Cardosa's case, the district judge never
said that he was departing downward to the crack cocaine guidelines
range, although the judge did in fact adopt an offense level,
criminal history classification and sentence corresponding to that
range.
If these facts stood alone, we would probably ourselves
say that the sentence was in fact based on the crack cocaine
guidelines and not the career offender guideline. But in rejecting
Rodriguez' motion for resentencing, the district court said that
"[t]he fact that defendant was sentenced as a career offender makes
him ineligible for a sentence reduction." This at least muddies
the waters, although the judge may well merely have meant that
Caraballo controlled and not that the career offender guideline was
relied on in setting the sentence.
There is an easy solution for gray area cases, which is
to let the district judge--who after all did the original
sentencing--decide in the first instance whether it was or was not
based on the crack cocaine guidelines. This is hardly an
administrative burden since that judge is the one to whom the
resentencing petition will be directed in the first instance and
eligibility is always a threshold issue. For petitions decided
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before today's clarifying of Caraballo, a few remands may be
necessary in gray area cases, but rarely in the future.
The judgments in both cases are vacated and the cases
remanded for reconsideration in light of this decision. Cardosa is
eligible for resentencing; whether to do so is within the
discretion of the district judge on remand. In the case of
Rodriguez, the district court on remand should determine whether or
not he is eligible by deciding whether the original sentence was
based on the crack cocaine guidelines and, if the answer is
affirmative, then Rodriguez too is eligible for resentencing, but
otherwise not.
It is so ordered.
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