United States v. Hunnewell

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1538
UNITED STATES OF AMERICA,
Appellant,

v.

GEORGE LABONTE,
Defendant, Appellee.

No. 95-1226
UNITED STATES OF AMERICA,
Appellee,

v.

DAVID E. PIPER,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

No. 95-1101
UNITED STATES OF AMERICA,
Appellee,

v.

ALFRED LAWRENCE HUNNEWELL,
Defendant, Appellant.

No. 95-1264
STEPHEN DYER,
Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,
Respondent, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Selya, Cyr and Stahl,

Circuit Judges.

Margaret D. McGaughey, Assistant United States Attorney,

with whom Jay P. McCloskey, United States Attorney, Jonathan R.

Chapman and George T. Dilworth, Assistant United States

Attorneys, were on brief, for the United States.
John A. Ciraldo, with whom Perkins, Thompson, Hinckley &

Keddy, P.A. was on brief, for George LaBonte.

Peter Clifford for David E. Piper.

Michael C. Bourbeau, with whom Bourbeau and Bourbeau was on

brief, for Alfred Lawrence Hunnewell.
Cloud H. Miller, with whom Stephen Dyer was on brief pro se,

for Stephen Dyer.

December 6, 1995

SELYA, Circuit Judge. After many years of study and
SELYA, Circuit Judge.

debate, Congress passed the Sentencing Reform Act of 1984, Pub.

L. 98-473, tit. II, 212(a), 98 Stat. 1837 (1984) (codified as

amended at scattered sections of 18 & 28 U.S.C.). The

legislation took effect on November 1, 1987, and caused dramatic

changes both in the methodology of criminal sentencing and in the

outcomes produced. These changes did not go unremarked:

sentencing appeals, once rare in federal criminal cases, became

commonplace. Predictably, the tidal wave of appeals loosed a

flood of judicial opinions distilling the meaning, scope, and

application of a seemingly boundless sea of guidelines, policy

statements, notes, and commentary. And whenever it appeared that

the flood waters might recede, the Sentencing Commission launched

a fresh deluge of revisions that required the courts to paddle

even faster in a Sisyphean effort to stay afloat.

These four consolidated appeals are emblematic of the

difficulties that courts face in dealing with the new sentencing

regime. All four appeals implicate Application Note 2 to the

Career Offender Guideline, as modified by Amendment 506, United

States Sentencing Commission, Guidelines Manual 4B1.1, comment.

(n.2) (Nov. 1994). No appellate court has addressed the validity

of Amendment 506, and, in the quartet of criminal cases

underlying these appeals, two able district judges reached

diametrically opposite conclusions. Although the call is close,

we hold that Amendment 506 is a reasonable implementation of the

statutory mandate, 28 U.S.C. 994(h) (1988 & Supp. V 1993), and

3

is therefore valid. Thus, after answering other case-specific

questions raised by the various parties, we affirm the judgments

in the LaBonte and Piper cases; vacate the judgment in the

Hunnewell case and remand for reconsideration of the

appropriateness of resentencing; affirm the judgment in the Dyer

case in respect to all non-sentence-related matters and vacate

the sentence-related aspect of that judgment, remanding for

reconsideration.

I. THE AMENDMENT
I. THE AMENDMENT

Congress created the Sentencing Commission in 1984 to

design and implement federal sentencing guidelines. Three

principal forces propelled the legislation: Congress sought to

establish truth in sentencing by eliminating parole, to guarantee

uniformity in sentencing for similarly situated defendants, and

to ensure that the punishment fit the crime. See U.S.S.G. ch. 1,

pt. A(3), & 2; see also United States v. Unger, 915 F.2d 759,

762-63 (1st Cir. 1990) (explaining that the primary purposes of

the Sentencing Reform Act are to provide certainty, uniformity,

and fairness in sentencing), cert. denied, 498 U.S. 1104 (1991).

In addition to general guidance, see, e.g., 28 U.S.C. 991(b),

Congress also gave the Commission some specific marching orders.

One such set of marching orders is conveyed by 28

U.S.C. 994(h), which provides in part:

The Commission shall assure that the
guidelines specify a sentence to a term of
imprisonment at or near the maximum term
authorized for categories of defendants in
which the defendant is eighteen years old or
older and [has been convicted of a violent

4

crime or felony drug offense and has at least
two such prior convictions].

The Commission implemented section 994(h) through the Career

Offender Guideline. See U.S.S.G. 4B1.1, comment. (backg'd).

This guideline sets forth a table of enhanced total offense

levels (TOLs) said to be a function of the "Offense Statutory

Maximum" to be employed in calculating the sentences of so-

called "career offenders." See U.S.S.G. 4B1.1. A defendant is

regarded as a career offender if he was at least eighteen years

old at the time of the offense of conviction, that offense is a

crime of violence or a drug-related felony, and he has two prior

convictions for drug felonies or crimes of violence. See id.;

see also United States v. Piper, 35 F.3d 611, 613 n.1 (1st Cir.

1994), cert. denied, 115 S. Ct. 1118 (1995).

When the Commission issued the Career Offender

Guideline, it coined the phrase "Offense Statutory Maximum," but

did not define the phrase beyond saying that "the term `Offense

Statutory Maximum' refers to the maximum term of imprisonment

authorized for the offense of conviction." U.S.S.G. 4B1.1,

comment. (n.2) (Nov. 1987). Since this definition was

tautological, it proved unilluminating. Faced with a need to

improvise, several courts of appeals concluded that the phrase

encompassed not merely the statutory maximum applicable to the

offense of conviction simpliciter, but also the upgraded

statutory maximum that results after available enhancements for

prior criminal activity are taken into account. See United

States v. Smith, 984 F.2d 1084, 1085 (10th Cir.), cert. denied,

5

114 S. Ct. 204 (1993); United States v. Garrett, 959 F.2d 1005,

1009-11 (D.C. Cir. 1992); United States v. Amis, 926 F.2d 328,

329-30 (3d Cir. 1991); United States v. Sanchez-Lopez, 879 F.2d

541, 558-60 (9th Cir. 1989). This lexicographical choice carried

with it important consequences; under the courts' construction, a

defendant whose maximum possible term of imprisonment for a crime

of violence or drug offense was enhanced from, say, twenty to

thirty years on account of prior criminal activity, netted two

additional offense levels (increasing his TOL from thirty-two to

thirty-four) and found himself in a steeper sentencing range.

In Amendment 506, the Commission first meaningfully

defined the phrase "Offense Statutory Maximum." The amendment

provides that the phrase, for the purpose of the Career Offender

Guideline, "refers to 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."

U.S.S.G. 4B1.1, comment. (n.2) (Nov. 1994). The amended note

offers the example of a defendant who is subject to a sentencing

enhancement under 21 U.S.C. 841(b)(1)(C), in which case "the

`Offense Statutory Maximum' for the purposes of this guideline is

twenty years and not thirty years." Finally, the Commission

opted to give Amendment 506 retroactive effect. See U.S.S.G.

1B1.10(3) (Nov. 1994).

Initially, the Commission attempted to justify the

6

amendment as "avoid[ing] unwarranted double-counting as well as

unwarranted disparity associated with variations in the exercise

of prosecutorial discretion in seeking enhanced penalties based

on prior convictions." U.S.S.G., App. C, Amend. 506, at 409

(Nov. 1994). In addition, the Commission observed that Congress

enacted the array of sentence-enhancing laws after the statutory

predicate for the Career Offender Guideline had become law. See

id. Subsequently, the Commission attempted to explain its newly

emergent interpretation of the Career Offender Guideline in terms

of a desire to avoid unwarranted disparity and to achieve

consistency. See Amendment Notice, 60 Fed. Reg. 14,054, 14,055

(1995); see also United States v. LaBonte, 885 F. Supp. 19, 23

n.4 (D. Me. 1995). Whatever may be its provenance, it is nose-

on-the-face plain that, in many instances, Amendment 506 produces

lower TOLs (and, ultimately, shorter sentences) than the

unembellished Career Offender Guideline (as interpreted by the

courts). Due to this palliative effect, critics view it as

inimical to congressional intent.1

1As we have said before, "irony is no stranger to the law."
Amanullah v. Nelson, 811 F.2d 1, 18 (1st Cir. 1987). Throughout

its history, the Sentencing Commission has been berated for the
severity of the sentencing outcomes dictated by the guidelines.
See, e.g., United States v. Jackson, 30 F.3d 199, 204-06 (1st

Cir. 1994) (Pettine, J., concurring) (criticizing the guidelines
for fostering excessively harsh sentences); Daniel J. Freed,
Federal Sentencing in the Wake of Guidelines and Unacceptable

Limits on the Discretion of Sentencers, 101 Yale L.J. 1681, 1690

(1992) ("The new sentencing guidelines are more complex,
inflexible, and severe than those devised by any other
jurisdiction."); Charles J. Ogletree, Jr., Commentary: The Death

of Discretion? Reflections on the Federal Sentencing Guidelines,

101 Harv. L. Rev. 1938, 1939 (1988) (criticizing the
"unreasonably long sentences" produced by the guidelines).

7

II. THE DEFENDANTS
II. THE DEFENDANTS

These four defendants all were sentenced in the

District of Maine as career offenders prior to the birth of

Amendment 506. In each instance, the prosecution filed a notice

under 21 U.S.C. 851(a)(1) signalling its intention to seek

enhanced penalties for prior convictions, and the sentencing

court arrived at the defendant's "Offense Statutory Maximum" by

factoring the statutory enhancement into the mix. The court then

set each defendant's TOL and guideline sentencing range (GSR)

accordingly. Following the promulgation of the amendment, all

four defendants tried to avail themselves of it. We limn their

individual circumstances.

A. George LaBonte.
A. George LaBonte.

A grand jury indicted LaBonte for possession of cocaine

with intent to distribute in violation of 21 U.S.C. 841(a)(1) &

(b)(1)(C). After he pleaded guilty, the district court (Hornby,

U.S.D.J.) sentenced him under the Career Offender Guideline.

Using an enhanced statutory maximum derived from LaBonte's record

of prior drug convictions, Judge Hornby set LaBonte's TOL at

thirty-four, granted a three-level downward adjustment for

acceptance of responsibility, see U.S.S.G. 3E1.1, arrived at a

GSR of 188-235 months, and sentenced him to serve 188 months. We

affirmed. See United States v. LaBonte, 19 F.3d 1427 (1st Cir.

1994) (table).

Subsequent to the promulgation of Amendment 506,

LaBonte moved for resentencing. Judge Hornby determined that

8

Amendment 506 was valid and decided to apply it. See LaBonte,

885 F. Supp. at 24. He granted LaBonte's motion, focused on the

unenhanced statutory maximum to calculate a new TOL (thirty-two),

and again deducted three levels for acceptance of responsibility.

This recomputation yielded a GSR of 151-188 months, and Judge

Hornby lowered LaBonte's sentence to the nadir of the new range.

See id. The government appeals from this disposition.

B. David E. Piper.
B. David E. Piper.

Piper pleaded guilty to a two-count information

charging conspiracy to possess marijuana with intent to

distribute and use of a firearm in connection with a drug

offense. See 21 U.S.C. 841(a)(1) & (b)(1)(B), 846; 18 U.S.C.

924(c)(1). Utilizing an enhanced statutory maximum, Judge

Hornby set Piper's TOL at thirty-seven, subtracted three levels

for acceptance of responsibility, arrived at a GSR of 262-327

months, and imposed an incarcerative sentence of 300 months.2

We affirmed. See Piper, 35 F.3d at 613.

Hot on the heels of Amendment 506, Piper moved

unsuccessfully for resentencing. Although Judge Hornby assumed

the amendment's validity, he exercised his discretion and

declined to permit Piper to benefit from it.3 Piper appeals

from this disposition.

2Piper received an additional five-year sentence on the
firearms count. That impost is not in issue here.

3The amendment, if applied, would have lowered Piper's
adjusted offense level from thirty-four to thirty-two, and
decreased the GSR to 210-262 months.

9

C. Alfred Lawrence Hunnewell.
C. Alfred Lawrence Hunnewell.

A grand jury indicted Hunnewell on six narcotics

counts. See 21 U.S.C. 841(a)(1). He thereafter pleaded guilty

to two counts of possessing controlled substances with intent to

distribute, and the court (Carter, U.S.D.J.) dismissed the

remaining counts. Using an enhanced statutory maximum, Judge

Carter set Hunnewell's TOL at thirty-four, deducted three levels

for acceptance of responsibility, arrived at a GSR of 188-235

months, and sentenced the defendant to serve 188 months. We

affirmed. See United States v. Hunnewell, 10 F.3d 805 (1st Cir.

1993) (table), cert. denied, 114 S. Ct. 1616 (1994).

After the promulgation of Amendment 506, Hunnewell

beseeched the district court to trim his sentence. Judge Carter

denied this motion, concluding that the Sentencing Commission

lacked the authority to adopt Amendment 506.4 Hunnewell

appeals.

D. Stephen Dyer.
D. Stephen Dyer.

Dyer pleaded guilty to a charge of conspiring to

possess controlled substances with intent to distribute in

contravention of 21 U.S.C. 841(a)(1), 846. Consulting the

enhanced statutory maximum, Judge Carter set Dyer's TOL at

thirty-four, refused an acceptance-of-responsibility discount,

arrived at a GSR of 262-327 months, and levied a 262-month term

of imprisonment. We affirmed. See United States v. Dyer, 9 F.3d

4The amendment, if applied, would have lowered Hunnewell's
adjusted offense level from thirty-one to twenty-nine, and
decreased his GSR to 151-188 months.

10

1 (1st Cir. 1993) (per curiam).

Dyer eventually filed a petition for habeas relief, see

28 U.S.C. 2255, in which he sought to set aside his conviction

or, in the alternative, to reduce his sentence by virtue of

Amendment 506. Judge Carter denied and dismissed the habeas

petition. Among other things, the judge, declaring Amendment 506

to be unlawful, refused to resentence Dyer.5 Dyer protests all

aspects of the district court's order.

III. THE VALIDITY OF AMENDMENT 506
III. THE VALIDITY OF AMENDMENT 506

We begin our analysis by discussing, generally, the

methodology we will employ in examining Amendment 506. We then

proceed to tackle the two conundrums that are inextricably

intertwined with the question of the amendment's validity.

A. The Methodology.
A. The Methodology.

Commentary authored by the Sentencing Commission that

"interprets or explains a guideline is authoritative unless it

violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that

guideline." Stinson v. United States, 113 S. Ct. 1913, 1915

(1993). Like the Commission's policy statements, its commentary

is binding on the federal courts. See id. at 1917-18. In

general, these interpretive materials are entitled to the same

substantial degree of deference that courts routinely accord an

administrative agency's interpretation of its own legislative

5Amendment 506, if applied, would have lowered Dyer's
adjusted offense level from thirty-four to thirty-two, and
decreased his GSR to 210-262 months.

11

rules. See id. at 1919. Thus, under Stinson, judicial scrutiny

of the Commission's commentary is limited to ensuring consistency

with federal statutes (including, but not restricted to, the

Commission's enabling statute), and with the guidelines

themselves.

These two lines of inquiry proceed along different

analytic paths. When a court ventures to determine whether the

Commission's commentary tracks the guidelines, the degree of

deference is at its zenith. In this context, commentary is not

merely the end product of delegated authority for rulemaking,

but, rather, "explains the guidelines and provides concrete

guidance as to how even unambiguous guidelines are to be applied

in practice." Id. at 1918. Unless the commentary is a palpably

erroneous rendition of a guideline, it merits respect. See id.

at 1919; Piper, 35 F.3d at 617.

The determination of whether the guidelines are

consistent with positive statutory law touches a more vulnerable

spot. That inquiry implicates the traditional process of

reviewing agency rules typified by the Supreme Court's watershed

opinion in Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). Thus, while the Court has

warned that Chevron does not provide an apt analogy for the

process of reviewing the relationship between commentary, on the

one hand, and guidelines, on the other hand, see Stinson, 113 S.

Ct. at 1918, we believe that Chevron deference is the proper

criterion for determining whether a guideline (or, for that

12

matter, commentary that suggests how a guideline should be read)

contravenes a statute. The Chevron two-step approach fits that

type of inquiry like a glove.6 See Chevron, 467 U.S. at 842-43

(describing two-step test).

Applying this methodology here is not without

complications. We limit our inquiry to the fit (or lack of fit)

between the Career Offender Guideline as explicated in Amendment

506 and the applicable statute, 28 U.S.C. 994(h).7 In that

statute, Congress directed the Commission to ensure that certain

recidivists receive sentences "at or near the maximum." The

Career Offender Guideline represents the Commission's response to

this directive. See U.S.S.G. 4B1.1, comment. (backg'd).

Because the Commission's understanding of its statutory mandate

must be measured against the Chevron benchmark, the inquiry

follows a familiar format:

When a court reviews an agency's
construction of the statute which it
administers, it is confronted with two

6We note in passing the suggestion by some scholars that
Stinson implies an extraordinarily deferential standard of review

for the entire process of evaluating guideline commentary. On
this view, commentary should be honored unless it constitutes a
plainly erroneous interpretation either of a guideline or of a
statute. See 1 Kenneth Culp Davis and Richard J. Pierce, Jr.,

Administrative Law Treatise 6.10, at 284 (3d ed. 1994). We

need not probe this possibility today. Because Amendment 506
passes muster under the Chevron test, it would clearly pass

muster if we were to employ the more deferential test suggested
by Professors Davis and Pierce.

7Because the government does not contend that Amendment 506
is inconsistent with the guideline itself, we eschew any
discussion of that point. See United States v. Zannino, 895 F.2d

1, 17 (1st Cir.) (explaining that issues not briefed and argued
are deemed abandoned), cert. denied, 494 U.S. 1082 (1990).

13

questions. First, always, is the question
whether Congress has directly spoken to the
precise question at issue. If the intent of
Congress is clear, that is the end of the
matter . . . . If, however, the court
determines Congress has not directly
addressed the precise question at issue, the
. . . question for the court is whether the
agency's answer is based on a permissible
construction of the statute.

Chevron, 467 U.S. at 842-43; accord Strickland v. Commissioner,

Me. Dep't of Human Servs., 48 F.3d 12, 16 (1st Cir.), cert.

denied, 116 S. Ct. 145 (1995).

These appeals focus on a single sentence that appears

in 28 U.S.C. 994(h), a sentence that requires the Commission to

adopt guidelines "that specify a sentence to a term of

imprisonment at or near the maximum term authorized for [certain]

categories of defendants." This problematic sentence presents

three issues of statutory interpretation, necessitating two

distinct iterations of the Chevron standard. The first

application combines two issues; it concerns the explication of

the word "maximum" as that word is used in section 994(h) and,

concomitantly, the meaning of the word "categories" as used

therein. The second occasion for Chevron analysis involves an

exegesis of the phrase "at or near" as used in the same sentence.

The two problems are interrelated, but they are somewhat

different in nature.8

8Although we are mindful that plausible if strained
interpretations of a series of individual statutory terms might
at times lead to an impermissible overall interpretation of a
statute, that is not the case here. Whether one conducts the
ensuing analysis in one segment or two, the result is unaffected;
the simple fact of the matter is that the Commission has

14

B. The First Conundrum.
B. The First Conundrum.

In the context of section 994(h), the term "maximum" is

susceptible of divergent meanings, depending, in part, on

precisely what constitutes a "categor[y] of defendants." One

possible reading is that "categories" are composed of those

defendants charged with violations of similar statutes against

whom prosecutors have filed notices of intention to seek sentence

enhancements (e.g., all repeat offender drug traffickers against

whom the government has filed sentence-enhancing informations

under 21 U.S.C. 851(a)(1)). On this view, the relevant

statutory maximum for any such defendant would be the enhanced

statutory maximum (ESM) applicable to repeat offenders. See 21

U.S.C. 841(b)(1), 851(a)(1). But this reading is not

linguistically compelled. The word "categories" plausibly can be

defined more broadly to include all offenders (or all repeat

offenders) charged with transgressing the same criminal statute,

regardless of whether the prosecution chooses to invoke the

sentence-enhancing mechanism against a particular defendant

(e.g., all drug traffickers, or all repeat offender drug

traffickers, who are charged with violating 21 U.S.C.

841(a)(1)). On this view, the word "maximum" refers to the

unenhanced statutory maximum (USM), see 21 U.S.C. 841(b)(1),

developed a reasonable interpretation of the vague and ambiguous
language of section 994(h). That said, we employ a piecemeal
approach here, as we believe it better illustrates that U.S.S.G.
4B1.1, as interpreted by the amended commentary, is a
permissible construction of Congress's directive that career
offenders be sentenced "at or near the maximum term authorized."

15

since this represents the highest possible sentence applicable to

all defendants in the category.9

Since the sentencing guidelines must comport with such

specific statutory directives as Congress has ordained, see

United States v. Saccoccia, 58 F.3d 754, 786 (1st Cir. 1995) ("It

is apodictic that the sentencing guidelines cannot sweep more

broadly than Congress' grant of power to the Sentencing

Commission permits."), the question becomes whether Congress

clearly intended to prefer one of these interpretations over the

other. The issue is not free from doubt. Several courts of

appeals have heretofore read the word "maximum" in the former

fashion (as referring to the ESM), see supra pp. 5-6, whereas the

Sentencing Commission now reads the word in the latter sense (as

referring to the USM). We proceed to test this conflict in the

Chevron crucible.

1. Step One: Congressional Intent. At the outset, we
1. Step One: Congressional Intent.

must determine whether Congress has spoken with sufficient

clarity to foreclose alternative interpretations. Statutory

construction always starts and sometimes ends with the

statute's text. Here, we find Congress's handiwork opaque. The

problem is not ambiguity in definition. Rather, it is simply

unclear from the bare language of the law which maxima and what

categories Congress had in mind when it contrived section 994(h).

9The relevance of this somewhat arid discussion will become
more apparent in Part III(C), infra, when the need arises to

determine the extent to which sentences are "at or near the
maximum."

16

The earlier cases relating the word "maximum" to the

ESM do not dictate a contrary conclusion. Those courts envisaged

their primary task as interpreting the meaning of the guidelines,

see, e.g., Garrett, 959 F.2d at 1010 (concluding that "the

Guidelines require us to define the [term] Offense Statutory

Maximum" in a particular way); Amis, 926 F.2d at 329 (stating the

court's task as "merely [to] determine the `Offense Statutory

Maximum' as used in guidelines 4B1.1"), and they did so without

the aid of Amendment 506. Although two courts suggested that

reading "Offense Statutory Maximum" as referring to the ESM would

better effectuate congressional intent, see Garrett, 959 F.2d at

1010; Sanchez-Lopez, 879 F.2d at 559, neither of these courts

held or even hinted that section 994(h) thwarted a different

reading. We have found no indication that any of the courts

which scrutinized the unexplicated version of U.S.S.G. 4B1.1

detected the kind of clear, overarching congressional directive

that would suffice to abort a Chevron inquiry.

Even were we to believe otherwise, two abecedarian

principles of statutory construction nonetheless would counsel

continuation of the Chevron journey. First, courts that read a

statute without the aid of an authoritative interpretation by the

agency charged with administering the statute must reexamine

their reading if the agency later speaks to the point. See

International Ass'n of Bridge, Structural, and Ornamental

Ironworkers, Etc. v. NLRB, 946 F.2d 1264, 1271 (7th Cir. 1991).

Second, an agency that is charged with administering a statute

17

remains free to supplant prior judicial interpretations of that

statute as long as the agency interpretation is a reasonable

rendition of the statutory text. See id. at 1270; see also Rust

v. Sullivan, 500 U.S. 173, 186-87 (1991) (holding that an agency

is free to reverse its own previous interpretation of a statute,

subject to the same condition); Strickland, 48 F.3d at 318

(same). Hence, we trek onward.

When the plain meaning of a law is not readily apparent

on its face, the next resort is to the traditional tools of

statutory construction reviewing legislative history and

scrutinizing statutory structure and design in an effort to

shed light on Congress's intent.10

As originally envisioned, section 994(h) would have

placed the onus of imposing sentences "at or near the maximum"

directly on sentencing judges. See S. Rep. No. 98-225, 98th

Cong., 2d Sess. 175 (1984), reprinted in 1984 U.S.C.C.A.N. 3182,

3358. The provision's author, Senator Kennedy, devised it as a

means of putting "[c]areer criminals . . . on notice that their

chronic violence will be punished by maximum prison sentences."

10We acknowledge the ongoing debate over the propriety,
under Chevron, of going beyond plain meaning analysis and

resorting to the traditional tools of statutory construction in
search of a clear congressional directive. Compare INS v.

Cardoza-Fonseca, 480 U.S. 421, 446-48 (1987) (suggesting that,

under the first prong of Chevron, courts should employ

"traditional tools of statutory construction") with id. at 454

(Scalia, J., concurring) (rejecting this statement). This court
has followed Chevron, 467 U.S. at 843 n.9, and employed the full

tool chest of statutory construction implements in attempting to
detect clear congressional meaning. See, e.g., Strickland, 48

F.3d at 19. We continue that practice in this case.

18

128 Cong. Rec. 26,518 (1982). But that proposal did not take

wing; the Senate Judiciary Committee instead approved section

994(h) in its current incarnation. This version, unlike the

rejected proposal, addresses its command to the Commission, not

the courts. The Committee obviously believed that this change

would better "assure consistent and rational implementation of

the Committee's view that substantial prison terms should be

imposed on repeat violent offenders and repeat drug offenders."

S. Rep. No. 98-225, supra, 1984 U.S.C.C.A.N. at 3358. We think

that this history confirms that (1) in creating the Commission,

Congress had an overall goal of curtailing judicial discretion in

sentencing matters; and (2) in enacting section 994(h), Congress

had a specific intent to let the Commission (as opposed to

individual judges) determine the best method for assuring that

career offenders would receive stiff prison sentences. Past this

point, the legislative archives offer no clue as to whether

Congress ever recognized either the potential ambiguity of the

term "maximum" or the uncertainty that might attach to the

question of what constitutes a category of offenders.

Finding the relevant legislative history to be no

clearer than the statute's text, we look to the enabling

legislation and the overall structure of the Sentencing Reform

Act for what insights they may afford. Superficially, these

considerations seem to support the government's position that the

"maximum" is the ESM. Reading "categories" narrowly enough to

distinguish between offenders on the basis of whether the United

19

States Attorney has filed sentence-enhancing informations yields

potentially harsher sentences in those cases, thereby promising

more stringent punishment for selected repeat offenders. That

narrow reading also preserves the distinction between offenders

who are subject to sentence enhancements based on prior criminal

activity and those who are not a distinction that Congress

arguably delivered into the hands of prosecutors. See, e.g., 21

U.S.C. 841(b)(1), 851(a)(1).

Although these asseverations put the government's best

foot forward, they are at most debating points in relation to the

problem at hand. They neither indicate that Congress has spoken

directly to the precise issue nor reflect a sufficiently clear

congressional intent to circumscribe the Commission's

interpretive powers. Indeed, the arguments are circular; the

touted advantages of the government's reading appear to be

advantageous only if one assumes the conclusion that the

government is struggling to prove.

We will not add hues to a rainbow. Because we find no

clear congressional directive regarding the meaning of the term

"maximum" as that term is used in section 994(h), our inquiry

proceeds to the second half of the Chevron two-step.

2. Step Two: Plausibility of the Commission's
2. Step Two: Plausibility of the Commission's

Interpretation. Where, as here, a statute is not clear, an
Interpretation.

interpretation by the agency that administers it will prevail as

long as the interpretation is reasonable under the statute. See

Strickland, 48 F.3d at 21. We believe that the Commission's act

20

in defining "maximum" to refer to the unenhanced maximum term of

imprisonment the USM furnishes a reasonable interpretation of

section 994(h). The statute explicitly refers to "categories of

defendants," namely, repeat violent criminals and repeat drug

offenders, and does not suggest that each individual offender

must receive the highest sentence available against him. The

Career Offender Guideline, read through the prism of Amendment

506, adopts an entirely plausible version of the categorical

approach that the statute suggests. Unless one is prepared to

write off Congress's choice of the word "categories" as some sort

of linguistic accident or awkward locution and we are not so

inclined this approach is eminently supportable.

Our dissenting colleague decries the Commission's

categorical approach. He states that, indeed, "the phrase

`categories of defendants' is perhaps better understood . . . as

a 'linguistic accident or an awkward locution.'" Post at 47. To

the contrary, this conclusion is foreclosed by, inter alia, the

following explicit language in 18 U.S.C. 3553:

(a) . . . The court, in determining the
particular sentence to be imposed, shall

consider

. . . .

(4) the kinds of sentence and the
sentencing range established for

(A) the applicable category of

offense committed by the applicable category

of defendant as set forth in the guidelines

issued by the Sentencing Commission pursuant

to section 994(a)(1) of title 28 . . . .

(Emphasis supplied).

21

Further inescapable evidence that the term "categories

of defendants" is neither an accidental nor a recent

congressional usage, see post at 47-48, appears in 28 U.S.C.

994(b)(1):

The Commission, in the guidelines promulgated

pursuant to subsection (a)(1), shall, for

each category of offense involving each

category of defendant, establish a sentencing

range that is consistent with all pertinent

provisions of title 18, United States Code.

(Emphasis supplied).

Thus, rather than a recent slip of the legislative pen,

the term "categories of defendants," as used in section 994(h),

originated in the carefully incubated legislation mandating a

guideline sentencing system that was to be promulgated and

monitored by the Sentencing Commission, see 28 U.S.C. 994, and

implemented by the courts, see 18 U.S.C. 3553. Among the more

important innovations attending the establishment of the new

guideline sentencing system were certain restrictions on judicial

consideration and weighting of individualized sentencing factors,

see, e.g., 18 U.S.C. 3553(a)(4), (b), (c); hence, the possibly

"awkward," but nonetheless plainly intended, usage "categories of

defendants."

Given the identical statutory phrasing consistently

employed by Congress in titles 18 and 28, as well as their

coordinate design, we are unable to endorse the unsupported

statutory interpretation advanced in dissent. Rather, we must

follow the canons of statutory interpretation which demand that a

court give meaning to each word and phrase when explicating a

22

statute, and read the component parts of a legislative enactment

as a unified whole. See United Technologies Corp. v. Browning-

Ferris Indus., Inc., 33 F.3d 96, 101 (1st Cir. 1994), cert.

denied, 115 S. Ct. 1176 (1995); United States v. Ven-Fuel, Inc.,

758 F.2d 741, 751-52 (1st Cir. 1985); see also Greenwood Trust

Co. v. Massachusetts, 971 F.2d 818, 827 (1st Cir. 1992) ("It is .

. . a general rule that when Congress borrows language from one

statute and incorporates it into a second statute, the language

of the two acts should be interpreted the same way."), cert.

denied, 113 S. Ct. 974 (1993).

Moreover, the Sentencing Reform Act places many

restraints on the Commission apart from those embodied in section

994(h). The most salient of these restraints is the requirement

of sentencing consistency. See 28 U.S.C. 994(f). The

Commission adverted to this concern in promulgating Amendment

506, see U.S.S.G., App. C, Amend. 506, at 409 (Nov. 1994), and

responded to it by taking a categorical approach. Similarly,

Congress's efforts to eliminate sentencing disparities can be

reconciled with section 994(h)'s exhortation for maximal

sentencing only if one hears that exhortation as being addressed

to categories of defendants. In the final analysis, the

Commission remains fully faithful to the welter of congressional

commands by choosing to treat repeat offenders as broad

categories of defendants and thereby harmonizing the call for

stringent punishment of recidivists with the call for consistent,

non-disparate sentences.

23

The government lodges two further objections to the

plausibility of the Commission's rationale. First, it contends

that Congress, by means of such statutes as 21 U.S.C.

851(a)(1), intended to give prosecutors commodious discretion

over the potential sentences of repeat offenders, and that

Amendment 506 frustrates this intent. Though the government may

well be correct in asserting that Congress did not create the

Sentencing Commission with an eye toward eradicating

prosecutorial abuses, it does not follow that Congress strove

affirmatively to give prosecutors the keys to the kingdom.11

What is more, it makes very little sense to impute to Congress a

yearning for unbridled prosecutorial discretion when two major

goals of sentencing reform were to "assure that sentences are

fair both to the offender and to society," S. Rep. No. 98-225,

supra, 1984 U.S.C.C.A.N. at 3222, and to "avoid[] unwarranted

sentencing disparities among defendants with similar records who

have been found guilty of similar criminal conduct." 28 U.S.C.

991(b)(1)(B).

The government's remaining objection to the

Commission's reading of the word "maximum" is that this reading

prescribes an identical sentencing range for repeat offenders

11The government makes much of the fact that the Senate
Judiciary Committee, in creating the Commission, disclaimed any
fear that the guidelines would increase prosecutors' discretion
to reduce sentences through plea bargains. See S. Rep. No. 98-

225, supra, 1984 U.S.C.C.A.N. at 3246. But Congress's

explanation (which stressed that the Commission could guard
against this phenomenon because it was empowered to issue policy
statements concerning the review of plea bargains, see id.), is

indicative of the latitude it intended to give to the Commission.

24

whether or not the prosecution has sought to obtain sentence

enhancements. This reading, the government says, effectively

eliminates prosecutorial enhancements and arrogates unto the

Commission the authority that Congress explicitly vested in the

United States Attorney. We find this polemic unpersuasive.

We take 21 U.S.C. 841(b)(1) as our point of

departure. This section establishes unenhanced maximum terms

applicable to all violators, enhanced maximum terms applicable to

certain repeat offenders, and, in some cases, mandatory minimum

terms of incarceration (enhanced or unenhanced). It is

elementary that any guideline which prescribes a sentence that

falls within these parameters does not conflict with the statute.

What remains is a policy choice, and the Commission, by opting to

emphasize the USM, has done no more than exercise its prerogative

to make precisely this kind of policy choice. See Chevron, 467

U.S. at 864.

Furthermore, the choice is not unreasonable. The root

purpose of the Career Offender Guideline, U.S.S.G. 4B1.1, is to

enhance repeat offenders' sentences. The revamped guideline not

only accomplishes that purpose but also coheres with Congress's

discernible aims in making enhanced penalties available under

section 841. While that statute establishes a possible enhanced

penalty for repeat offenders if prosecutors choose, the Career

Offender Guideline, as filtered through Amendment 506, ensures an

actual enhancement of the TOL for all repeat offenders. This

critical distinction belies the government's lament that the

25

amendment sounds a death knell for enhancements required by

statute. The guideline, section 4B1.1, as explicated by

Amendment 506, departs from the statute, section 841, only in the

sense that the former seeks to enhance the sentences of a wider

class of recidivists. This departure lacks significance. For

purposes of testing the fidelity of the sentencing guidelines'

career offender provisions to the statutory scheme, it is

irrelevant that some sentences beyond those mandated by Congress

are also enhanced.

When all is said and done, the Commission's decision to

treat the word "maximum" as meaning the unenhanced statutory

maximum applicable to a category of offenders, broadly defined,

is a plausible rendition of section 994(h). We must honor the

Commission's definition.

C. The Second Conundrum.
C. The Second Conundrum.

As we have previously explained, section 994(h)

contains a specific directive that, in the case of career

offenders, sentences ought to be "at or near the maximum term

authorized." The government contends that, regardless of how the

word "maximum" is construed, Amendment 506 is invalid because it

fails to produce sentences that are "at or near" any conceivable

maximum. As before, we measure this contention by wielding the

Chevron yardstick.

1. Step One: Congressional Intent. At the risk of
1. Step One: Congressional Intent.

belaboring the obvious, we start from the premise that "at or

near" is neither an exact nor a self-defining term. Section

26

994(h) is silent as to how "near" sentences must be to the

maximum, and the legislative history is singularly unhelpful on

this point. Especially since we must concentrate on the USM in

calculating how "near" the Commission's sentencing ranges are to

the statutory goal, see supra Part III(B), we are unable to

divine a sufficiently clear expression of congressional intent.

Thus, we quickly move to the second and decisive portion of

the Chevron query.

2. Step Two: Plausibility of the Commission's
2. Step Two: Plausibility of the Commission's

Interpretation. The question of plausibility reduces to whether
Interpretation.

the Career Offender Guideline, as now interpreted by the

Commission, sufficiently ensures sentences that satisfy a

reasonable construction of "at or near the maximum." In this

setting, deference to the Commission is especially appropriate.

"At or near" is an inherently variable phrase. In speaking with

a Texan, one might say that Providence is "near" Boston, but it

is doubtful if that description would (or could) be employed in

speaking with a resident of, say, Cambridge or Cranston. In all

events, the phrase "at or near," as employed in this statute,

suggests a continuum of various sentences, each relatively

further from, or closer to, the statutory maximum.

It is also important to recognize that the career

offender enhancement is not the end point of the sentencing road

and, by itself, does not dictate individual defendants'

sentences. Once the "Offense Statutory Maximum" derived from the

Career Offender Guideline functions to yield a defendant's TOL,

27

the sentencing court must then make a myriad of individualized

adjustments to the offense level, up or down, for factors such as

acceptance of responsibility see U.S.S.G. 3E1.1, role in the

offense, see U.S.S.G. 3B1.1, 3B1.2, and the like. It is only

when all the component parts of the sentencing equation are

pulled together that the court can ascertain the range of

permissible sentences and, hence, settle upon the actual

sentence. Even then, the court retains authority, at least in

certain circumstances, to depart downward if a particular

defendant furnishes substantial assistance in the investigation

or prosecution of another person who has committed an offense,

see 18 U.S.C. 3553(e); U.S.S.G. 5K1.1, or to depart in either

direction if aggravating or mitigating circumstances warrant, see

18 U.S.C. 3553(b); U.S.S.G. 5K2.0. Many of these prospective

adjustments derive from explicit statutory commands. See, e.g.,

28 U.S.C. 994(n) (directing the Commission to create a

mechanism through which defendants will be rewarded for rendering

substantial assistance).

We believe that this reality has significant

implications for the question at bar. First and foremost, given

the labyrinthine way in which repeat offenders' actual sentences

are constructed, heightened deference to the Commission's slant

on the "at or near" language is very desirable. After all,

respect for agency interpretations is "particularly appropriate

in complex and highly specialized areas where the regulatory net

has been intricately woven," Massachusetts Dep't of Educ. v.

28

United States Dep't of Educ., 837 F.2d 536, 541 (1st Cir. 1988)

(citation and quotation marks omitted), and the sentencing

guidelines constitute a classic example of such a web. In other

words, due to the interstitial nature of the career offender

calculation, a reviewing court should be generous in assessing

the reasonableness of the Commission's approximation of how

"near" is "near."

The fact that the career offender adjustment does not

itself directly determine any particular defendant's actual

sentence has other implications as well. Unless one is ready to

place any and all downward adjustments beyond a repeat offender's

reach and even the government does not espouse so extreme a

position it is surpassingly difficult (if not impossible) to

expect the Commission to write a rule which ensures that career

offenders will invariably receive sentences "at or near" each

individual's ESM. Once a sentencing court has made such downward

adjustments, it would be surprising if many defendants' sentences

came very near to the statutorily prescribed "maximum" penalties

that are theoretically available (however the word "maximum" may

be defined). By like token, the very real possibility that

upward adjustments to the TOL may make career offenders'

sentences more severe suggests that room should be left for play

in the joints as the Commission implements the "at or near"

language.

Mindful, as we are, of these complexities, we think

that Amendment 506 passes muster. The sentences available under

29

the newly explicated Career Offender Guideline constitute a

substantial proportion of the possible sentences permitted by

statute. We can conveniently illustrate the point by reference

to the four defendants who are involved in these appeals. By

operation of Amendment 506, defendants like LaBonte, Hunnewell,

and Dyer now face maximum sentences of 262 months (the top of the

recalculated GSR) before taking into account any individualized

adjustments. A 262-month sentence represents 109.2% of the USM

for these defendants' offense of conviction.12 On the same

basis, a defendant like Piper now faces a maximum sentence of 365

months (76% of the applicable USM). Examining the gamut of

possible sentences available against each defendant under

Amendment 506, the median sentence in the range applicable to

LaBonte, Hunnewell, and Dyer (236 months) constitutes 98.3% of

the USM, while the median sentence in the range pertinent to

Piper (294.5 months) constitutes 61.4% of the USM. Under any

suitable definition of the word "near," we believe that the

Commission could reasonably conclude that these percentages

ensure sentences sufficiently close to the USM and sufficiently

harsh to provide a fair approximation of Congress's desire to

see that career offenders, as a group, receive maximal terms of

imprisonment.

IV. THE APPLICATION OF AMENDMENT 506
IV. THE APPLICATION OF AMENDMENT 506

12We think that this calculation graphically illustrates the
fallacy underlying our dissenting brother's lament that Amendment
506, "effectively nullifies the criminal history enhancements
carefully enacted in statutes like 21 U.S.C. 841." See post at

42.

30

Having determined that Amendment 506 is a lawful

exercise of the Sentencing Commission's powers, we now address

the motions for resentencing.

The principles governing motions to resentence based on

newly emergent guideline amendments can be compactly catalogued.

When the Commission amends the guidelines (or its interpretation

of the guidelines) in a manner that favors defendants, it may

invite retrospective application of the new interpretation.13

In such an event, a defendant who believes that the amendment, if

in force earlier, would have reduced his GSR may move for

resentencing. The district court, "after considering the factors

set forth in section 3553(a) to the extent that they are

applicable," may reduce the sentence "if such a reduction is

consistent with the applicable policy statements issued by the

Sentencing Commission." 18 U.S.C. 3582(c)(2).14 The law

permits, but does not require, the district court to resentence

13For this purpose, an "amendment" differs from a
"clarification." Clarifications explain earlier editions of the
sentencing guidelines; they do not change those provisions.
Because they are retrospective by nature, they do not require any
special retroactivity designation. See U.S.S.G. 1B1.11(b)(2);

see also United States v. LaCroix, 28 F.3d 223, 227 n.4 (1st Cir.

1994). In contrast, amendments do change prior guidelines and,
if they are to be given retroactive effect, the Commission must
so specify. See 28 U.S.C. 994(u); U.S.S.G. 1B1.10. This

opinion deals exclusively with amendments as opposed to
clarifications.

14The factors set forth in section 3553(a), insofar as they
are arguably applicable to any of the instant defendants, include
the nature and circumstances of the offense, the defendant's
criminal past, the GSRs, the Commission's policy statements, and
the necessity of avoiding unwarranted sentencing disparities
among similarly situated defendants. See 18 U.S.C. 3553(a).

31

such a defendant. See United States v. Connell, 960 F.2d 191,

197 (1st Cir. 1992). Because this decision is committed to the

trial court's discretion, the court of appeals will interfere

only if the record reveals a palpable abuse of that discretion.

See United States v. Pardue, 36 F.3d 429, 430 (5th Cir.), cert.

denied, 115 S. Ct. 1969 (1994); United States v. Telman, 28 F.3d

94, 96-97 (10th Cir. 1994); see also United States v. Twomey, 845

F.2d 1132, 1134 (1st Cir. 1988). It is plain that, under this

paradigm, most resentencing battles will be won or lost in the

district court, not in an appellate venue.

With this brief preface, we reach the individual

defendants' cases.

A. George LaBonte.
A. George LaBonte.

In LaBonte's case, the district court upheld Amendment

506 and applied it to reduce the defendant's sentence. See

LaBonte, 885 F. Supp. at 24. Although the government appeals

from the reconfigured sentence, it challenges only the lower

court's validation of the reinterpreted Career Offender

Guideline. Because the government has neither asserted nor

argued a claim that the court abused its considerable discretion

in reducing LaBonte's sentence, we must affirm the judgment. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert.

denied, 494 U.S. 1082 (1990).

B. David E. Piper.
B. David E. Piper.

In Piper's case, the district court upheld Amendment

32

506 but refused to mitigate the original sentence. Piper

proffers a potpourri of protests to the court's ruling. Only two

of them warrant discussion.

First, Piper suggests that under 18 U.S.C. 3582(c)(2)

a district court may only decide whether the policies underlying

an amendment would be served by a lessened sentence. Piper

misreads the statute: it authorizes the district judge to

resentence when resentencing is consistent with the policies

underlying the amendment, but it neither compels the judge to do

so nor limits his inquiry to the consistency question. Since the

language is precatory rather than mandatory, the district court

need not even consider the policy statements supporting an

amendment if, "after considering the factors set forth in

3553(a) to the extent they are applicable," 18 U.S.C.

3582(c)(2), the court prefers to stand by the existing sentence.

Piper's next remonstrance suggests that the district

court failed to reweigh the factors delineated in section

3553(a), see supra note 14, and that, therefore, the court's

decision cannot constitute a proper exercise of judicial

discretion. The problem with this remonstrance lies in its

premise. The district judge presided over Piper's case from the

outset. He possessed great familiarity with the odious nature of

the offense of conviction (leading a "commando-style" raid on a

family's home while heavily armed, and searching for a stash of

illegal drugs supposedly secreted there). Having sentenced Piper

originally, he knew the intimate details of Piper's criminal

33

history. At the hearing on the motion to resentence, the judge

listened to arguments that zeroed in on the very factors that

Piper now claims were overlooked.

In the end, Piper's argument invites us to elevate form

over substance. We decline the invitation. Where, as here, it

is clear that the sentencing judge has considered the section

3553(a) factors, we will not interpose a further requirement that

he make explicit findings as to each and all of those factors.

See United States v. Savoie, 985 F.2d 612, 618 (1st Cir. 1993)

(holding that a district court need not make explicit findings

regarding the statutory factors relevant to restitution orders

"so long as the record on appeal reveals that the judge made

implicit findings or otherwise adequately evinced his

consideration of those factors"); United States v. Wilfred Am.

Educ. Corp., 953 F.2d 717, 720 (1st Cir. 1992) (similar, in

respect to fines); see generally United States v. Tavano, 12 F.3d

301, 307 (1st Cir. 1993) ("As a general rule, a trial court

lawfully may make implicit findings with regard to sentencing

matters . . . ."). On this record, it strains credulity to

suggest that the district court neglected to take account of

statutorily required items in its decisionmaking process.

C. Alfred Lawrence Hunnewell.
C. Alfred Lawrence Hunnewell.

In Hunnewell's case, the district court held that

Amendment 506 was invalid, and refused to apply it for that

reason. Having concluded that the lower court erred, see supra

Part III, we ordinarily would remand for further proceedings.

34

But the government has other ideas; it asserts that the district

court's order should be construed as an exercise of discretion,

and it asks us to affirm the denial of Hunnewell's resentencing

request on this basis.

After a painstaking examination of the record, we

reject the government's asseveration. Calling a horse a cow does

not yield milk. Indeed, the government tacitly concedes the

weakness of its position by forgoing developed argumentation on

this point and instead regaling us with the reasons why the

district could (or should) have declined to extend an olive

branch to Hunnewell. The fact remains, however, that the

discretion conferred by 18 U.S.C. 3582(c)(2) is for the

district court not this court to exercise in the first

instance. Consequently, the denial of Hunnewell's motion for

resentencing must be set aside and the cause remanded for further

consideration of that motion.

Before leaving Hunnewell's situation, we pause to

comment on the government's suggestion that, because Hunnewell's

original sentence was still within the post-amendment GSR (albeit

barely), we need not afford the district court an opportunity to

decide whether to resentence him.15

In its haste to validate this argument, the government

distorts our holding in United States v. Ortiz, 966 F.2d 707 (1st

15The district court initially computed a GSR of 188-235
months, and sentenced Hunnewell to serve 188 months in prison.
Applying Amendment 506 to Hunnewell's case yields a revised GSR
of 151-188 months. See supra note 4.

35

Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993). In Ortiz, we

explained that,

where it appears reasonably likely that the
district judge selected a sentence because it
was at or near a polar extreme (whether top
or bottom) of the guideline range that the
judge thought applicable, the court of
appeals should vacate the sentence and remand
for resentencing if it is determined that the
court erred in its computation of the range,
notwithstanding that there may be an overlap
between the "right" and "wrong" sentencing
ranges sufficient to encompass the sentence
actually imposed.

Id. at 717-18. So it is here. In Hunnewell's initial sentencing

hearing, both the government and the defense asked the court to

impose a sentence at the bottom of the GSR. The court obliged.

Giving vitality to the foundational principle on which Ortiz

rests, we cannot be confident that, faced with a different range

of options, the district court's choice will remain the same.

D. Stephen Dyer.
D. Stephen Dyer.

Since Dyer's and Hunnewell's cases are virtually on all

fours vis-a-vis the posture of the resentencing issue, we need

not linger. For the reasons already expressed, see supra Part

IV(C), Dyer is entitled to have the district court address the

merits of his request for resentencing.

V. THE SECTION 2255 PETITION
V. THE SECTION 2255 PETITION

Dyer also appeals from the district court's summary

dismissal of his section 2255 petition. A district court may

dismiss a section 2255 petition without holding an evidentiary

hearing if it plainly appears on the face of the pleadings that

the petitioner is not entitled to the requested relief, or if the

36

allegations, although adequate on their face, consist of no more

than conclusory prognostications and perfervid rhetoric, or if

the key factual averments on which the petition depends are

either inherently improbable or contradicted by established facts

of record. See United States v. McGill, 11 F.3d 223, 225 (1st

Cir. 1993); see also 28 U.S.C. 2255 (explaining that a hearing

is unnecessary when the record "conclusively shows that the

prisoner is entitled to no relief").

We believe that Dyer's petition is both generally and

specifically defective. Taking first things first, the district

court noted that Dyer had not presented his factual allegations

under oath, and that, therefore, he was not entitled to the

relief that he sought. We agree.

Dyer's sworn petition contained nothing more than the

bare statement that he received ineffective assistance of

counsel. While some additional allegations were set forth in

Dyer's memorandum of law, those allegations did not fill the

void. A habeas application must rest on a foundation of factual

allegations presented under oath, either in a verified petition

or supporting affidavits. See, e.g., Rule 2, Rules Governing

Section 2255 Proceedings, 28 U.S.C. 2255. Facts alluded to in

an unsworn memorandum will not suffice. See Barrett v. United

States, 965 F.2d 1184, 1195 (1st Cir. 1992); Dalli v. United

States, 491 F.2d 758, 760 (2d Cir. 1974).

Even were we prepared to overlook this fatal

shortcoming, the petitioner would not find surcease. We review

37

claims of constitutionally deficient performance on counsel's

part under the familiar test of Strickland v. Washington, 466

U.S. 668 (1984). According to this regime, a criminal defendant

who alleges ineffective assistance must demonstrate that his

attorney's performance was unreasonably deficient, and that he

was prejudiced as a result of it. See Scarpa v. DuBois, 38 F.3d

1, 8 (1st Cir. 1994), cert. denied, 115 S. Ct. 940 (1995). When,

as in this case, a defendant has pleaded guilty to a charge, the

prejudice prong of the test requires him to show that, but for

his counsel's unprofessional errors, he probably would have

insisted on his right to trial. See Hill v. Lockhart, 474 U.S.

52, 59 (1985).

In light of these authorities, we think that the

district court appropriately dismissed Dyer's habeas petition.

In his brief, Dyer contends, inter alia, that his trial attorney

assured him that his sentence would be no more than eighteen

months, and that there was simply "no way" that he would be

sentenced as a career offender pursuant to U.S.S.G. 4B1.1. Even

a generous reading of this claim leaves no doubt that Dyer failed

adequately to allege any cognizable prejudice. An attorney's

inaccurate prediction of his client's probable sentence, standing

alone, will not satisfy the prejudice prong of the ineffective

assistance test. See Knight v. United States, 37 F.3d 769, 774

(1st Cir. 1994). Similarly, Dyer's self-serving statement that,

but for his counsel's inadequate advice he would have pleaded not

guilty, unaccompanied by either a claim of innocence or the

38

articulation of any plausible defense that he could have raised

had he opted for a trial, is insufficient to demonstrate the

required prejudice. See United States v. Horne, 987 F.2d 833,

835 (D.C. Cir.), cert. denied, 114 S. Ct. 153 (1993); United

States v. Arvanitis, 902 F.2d 489, 494 (7th Cir. 1990).

To add the finishing touch, the plea agreement that

Dyer signed stated in so many words that he faced a maximum

possible sentence of thirty years' imprisonment. The district

court reinforced this warning during the plea colloquy, and

explained to Dyer that his sentence could not be calculated with

certitude until the probation office prepared the presentence

investigation report. In response to questioning from the bench,

Dyer acknowledged his understanding that even if he received a

harsher-than-expected sentence, he would remain bound by his

plea. And Dyer also assured the court that no one had made any

promises to him anent the prospective length of his sentence.

Thus, regardless of his counsel's performance, Dyer was well

aware of the full extent of his possible sentence when he decided

to forgo a trial and enter a guilty plea.

Under the applicable constitutional standard, a failure

of proof on either prong of the Strickland test defeats an

ineffective-assistance-of-counsel claim. See Scarpa, 38 F.3d at

8-9. Since we find no cognizable prejudice, we need not

determine what Dyer's trial attorney did or did not tell him, or

whether the attorney lacked familiarity with the sentencing

guidelines to such an extent as to render his performance

39

constitutionally infirm.

We have also considered Dyer's other assignments of

error. His plaint that the district court acted precipitously in

dismissing the petition without first pausing to convene an

evidentiary hearing is meritless. See, e.g., McGill, 11 F.3d at

226; United States v. Butt, 731 F.2d 75, 80 n.5 (1st Cir. 1984).

His remaining claims are unworthy of detailed discussion. The

lower court did not blunder in summarily dismissing Dyer's

application for federal habeas relief.

VI. CONCLUSION
VI. CONCLUSION

We need go no further. For the reasons discussed

herein, we affirm the judgments in the LaBonte and Piper cases

(Nos. 95-1538 and 95-1226, respectively); remand for possible

resentencing in the Hunnewell case (No. 95-1101); and affirm the

judgment in the Dyer case (No. 95-1264) in part, but vacate it in

part and remand for possible resentencing. We intimate no view

as to how the district court should resolve the remaining

resentencing questions.

So Ordered.
So Ordered.

Separate Opinion Follows

40

STAHL, Circuit Judge, (concurring in part and
STAHL, Circuit Judge, (concurring in part and

dissenting in part). With all due respect, I disagree with
dissenting in part).

my colleagues that the phrase "maximum term authorized" in 28

U.S.C. 994(h) supports more than one plausible

interpretation. In endeavoring to set forth an analytically

sound basis for their decision, my colleagues find ambiguity

where none exists. After careful review, I believe that,

when applied to defendants subject to special enhanced

penalty provisions, the only plausible interpretation of the

phrase "maximum term authorized" is the enhanced maximum

punishment. Furthermore, once the phrase "maximum term

authorized" is correctly read as referring in these instances

to the enhanced statutory maximum, I think it clear that the

sentencing scheme propounded by Amendment 506 does not

satisfy Congress's clear command to sentence career offenders

at or near that maximum. Accordingly, I dissent with respect

to parts I-IV.

I.
I.

In reaching their conclusion, my colleagues engage

a full-blown Chevron inquiry twice, carefully analyzing the

phrases "maximum term authorized," "categories of defendants"

and "at or near."16 On the first pass, they find,

16. 28 U.S.C. 994(h) provides:

The Commission shall assure that the
guidelines specify a sentence to a term
of imprisonment at or near the maximum

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41

depending on the meaning ascribed to the term "categories,"

that the phrase "maximum term authorized" is susceptible to

two different plausible interpretations. If the term

"categories" is defined so that it recognizes the

distinctions between defendants subject to special enhanced

penalties and those who are not, then the phrase "maximum

term authorized" must mean the enhanced statutory maximum

when referring to the former and the unenhanced statutory

term authorized for categories of

defendants in which the defendant is
eighteen years old or older and

(1) has been convicted of a felony that
is
(A) a crime of violence; or
(B) an offense described in section
401 of the Controlled Substances Act
(21 U.S.C. [ ] 841), sections
1002(a), 1005, and 1009 of the
Controlled Substances Import and
Export Act (21 U.S.C. [ ] 952(a),
955, and 959), and the Maritime Drug
Law Enforcement Act (46 U.S.C. App.
[ ] 1901 et seq.) and

(2) has previously been convicted of two
or more prior felonies, each of which is

(A) a crime of violence; or
(B) an offense described in section
401 of the Controlled Substances Act
(21 U.S.C. [ ] 841), sections
1002(a), 1005, and 1009 of the
Controlled Substances Import and
Export Act (21 U.S.C. [ ] 952(a),
955, and 959), and the Maritime Drug
Law Enforcement Act (46 U.S.C. App.
[ ] 1901 et seq.)

(Emphasis added.)

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42

maximum when referring to the latter. They define this as

the enhanced statutory maximum ("ESM") interpretation. On

the other hand, my colleagues contend, that if the term

"categories" is read more broadly such that it fails to

recognize these distinctions, then the phrase "maximum term

authorized" must mean in all cases the unenhanced statutory

maximum because that is the highest possible sentence

applicable to all defendants in the category. They define

this as the unenhanced statutory maximum ("USM")

interpretation. My colleagues then conclude that, because

both interpretations are plausible, Congress has not spoken

clearly or without ambiguity on the issue and, therefore, we

should defer to the Commission's choice between the two. I

disagree with this analysis because I do not believe that the

USM interpretation is a plausible reading of the phrase

"maximum term authorized."

Principally, I find the USM interpretation

inherently implausible because it effectively nullifies the

criminal history enhancements carefully enacted in statutes

like 21 U.S.C. 841. These statutes, to which Congress

expressly referred in the text of 994(h), provide an

intricate web of enhanced penalties applicable to defendants

who are repeat offenders or whose offenses resulted in death

or serious bodily injury. The USM interpretation, however,

completely disregards these enhanced penalties because, under

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43

that interpretation, all defendants must be sentenced at or

near the unenhanced maximum whether or not the enhanced

penalties apply. Recognizing that Congress specifically

referred to these statutes in the text of 994(h), it seems

absurd to suppose that Congress did not intend to preclude

this result. A plausible reading of a statute would not

render meaningless complete sections of other statutes to

which it refers.17

The reasoning of the District of Columbia Circuit

in United States v. Garrett, 959 F.2d 1005, 1010-11 (D.C.

Cir. 1992), firmly supports this analysis. In Garrett, the

court rejected the argument that the guideline phrase

"Offense Statutory Maximum" should be read to refer to the

unenhanced statutory maximum. Id. The court explained that

such an interpretation (which I note necessarily requires

interpreting the phrase "maximum term authorized" in 994(h)

to mean the unenhanced maximum) would "thwart congressional

intent." Id. at 1011. The court reasoned that to conclude

that "Congress . . . intended to erase the statutory

distinctions among offenders based either on their past

17. The majority contends that this argument is of little
moment because a Career Offender guideline using the USM
interpretation as espoused by Amendment 506 does not
technically conflict with 21 U.S.C. 841 or the other
enhanced penalty statutes. While I agree that there may be
no technical "conflict," I hardly take that as evidence that
Congress intended to permit the Commission in interpreting
994(h) to nullify many of the special enhanced penalties.

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44

actions or on the circumstances of the offense, distinctions

carefully set forth in subsection 841(b)(1)(B) would be

senseless." Id. (emphasis added). While it is true that

Garrett involved only the interpretation of "Offense

Statutory Maximum" and did not directly consider the

statutory language, I think its analysis is informative and

applies with equal force to the question at hand. Indeed,

prior to the promulgation of Amendment 506, the Commission

defined the guideline phrase "Offense Statutory Maximum" as

equivalent to the statutory phrase "maximum term authorized."

See U.S.S.G. 4B1.1, comment. (n.2) (Nov. 1993).18

Furthermore, I believe the legislative history

strongly suggests that Congress intended "maximum term

authorized" to refer, in appropriate circumstances, to the

enhanced maximum penalty. The Senate Judiciary Committee

noted that 994(h) was enacted to replace the sentencing

provisions for "dangerous special offenders" and "dangerous

special drug offenders" provided respectively by 18 U.S.C.

3575 (repealed 1984) and 21 U.S.C. 849 (repealed 1984).

See S. Rep. 225, 98th Cong. 2d Sess. 120 (1984), reprinted in

1984 U.S.C.C.A.N. 3182, 3303. These two provisions enabled

18. Other circuits have interpreted "Offense Statutory
Maximum" similarly. United States v. Smith, 984 F.2d 1084,

1086-87 (10th Cir.) (similarly interpreting "Offense
Statutory Maximum"), cert. denied, 114 S. Ct. 204 (1993);

United States v. Amis, 926 F.2d 328, 330 (3d Cir. 1991)

(same); United States v. Sanchez-Lopez, 879 F.2d 541, 558-560

(9th Cir. 1989) (same).

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45

courts to sentence "dangerous" defendants to terms "of

imprisonment longer than that which would ordinarily be

provided." S. Rep. 225 at 117, reprinted in 1984

U.S.C.C.A.N. at 3300; see United States v. Thornley, 733 F.2d

970, 972 (1st Cir. 1984) (affirming "dangerous special

offender" sentence that exceeded the maximum prescribed

sentence for the underlying offense). A defendant was

subject to sentencing under these provisions upon, inter

alia, a finding of dangerousness. Specifically, a defendant

was considered dangerous if a term of imprisonment "longer

than the maximum provided in the statute defining the

[underlying] felony `[was] required for the protection of the

public.'" S. Rep. 225 at 117, reprinted in 1984 U.S.C.C.A.N.

at 3300 (quoting 18 U.S.C. 3575(f) and 21 U.S.C. 849(f))

(emphasis added). As this definition makes clear, the

purpose of these special offender statutes was to provide, in

appropriate circumstances, enhanced punishment beyond that

otherwise provided in the underlying statute. See, e.g.,

United States v. Sutton, 415 F. Supp. 1323, 1324 (D.D.C.

1976). This is exactly the same rationale underlying the

enhanced penalty provisions found in statutes like 21 U.S.C.

841. Because Congress intended 994(h) to address these

"same considerations," see S. Rep. 225 at 120, reprinted in

1984 U.S.C.C.A.N. at 3303, it seems reasonable to conclude

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46

that Congress intended "maximum term authorized" to mean the

enhanced statutory maximum.19

In sum, because the USM interpretation would render

ineffective the enhanced penalties provided in statutes like

21 U.S.C. 841 and because the legislative history strongly

suggests that Congress intended the phrase "maximum term

authorized" to mean the enhanced statutory maximum, I believe

deferring to the Commission's interpretation of the phrase

"maximum term authorized" in 994(h) is inappropriate.

In passing, I further note that, in large part, my

colleagues' argument turns on their analysis of the term

"categories" found in 994(h). Indeed, they can only import

ambiguity into the narrow phrase "maximum term authorized,"

by first deeming the expression "categories of defendants"

fatally imprecise. Moreover, they justify the USM

interpretation by reasoning that any other interpretation

19. In concluding that the legislative history fails to
disprove the plausibility of the unenhanced interpretation,
the majority quotes the Judiciary Committee's opinion that
994(h) and 994(i) would "assure the consistent and rational
implementation of the Committee's view that substantial
prison terms should be imposed on repeat violent and repeat
drug offenders." S. Rep. No. 225 at 175, reprinted in 1984

U.S.C.C.A.N. at 3358. While this statement clearly suggests
that the Committee trusted the Commission more than
individual judges to see that recidivist defendants were
sentenced at or near the maximum term authorized, it in no
way suggests that Congress intended to grant the Commission
the authority to disregard the sentencing enhancements
provided in 21 U.S.C. 841 and other similar statutes.

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47

would write off "the word `categories' as some sort of

linguistic accident or awkward locution."

With all due respect, I find the phrase "categories

of defendants" much less troubling. First, I note that

"categories" is inherently a general, imprecise term, whereas

I believe "maximum" is naturally a specific, precise one.

Hence, I find it eminently more plausible, in this context,

to read the phrase "categories of defendants" narrowly -- as

referring to classes of defendants subject to specific

enhanced penalties -- than it is to read the phrase "maximum

term authorized" broadly -- as referring to, with respect to

certain defendants, something less than the maximum (i.e.,

under the USM interpretation, some defendants who are subject

to enhanced penalties will be sentenced at or near the

unenhanced maximum, which, with respect to those defendants,

is not the authorized statutory maximum).

Second, I do indeed believe that the phrase

"categories of defendants" is perhaps better understood, to

use my colleagues' phraseology, as a "linguistic accident or

an awkward locution." As I note infra, at 11-13, Congress

added 994(h) to the enabling legislation late in the

drafting process. The subsection derives from a sentencing

provision attached to other legislation that directed judges

to sentence career criminals to the maximum possible penalty.

In attaching it to the enabling legislation, Congress rewrote

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48

the provision borrowing the phrase "categories of defendants"

and other language from the already-existing 994(i).20

In contrast with 994(h), 994(i)'s usage of the

phrase "categories of defendants" is sensible in light of

that subsection's structure. First, 994(i) broadly

instructs the Commission to assure that various "categories

of defendants" shall receive "substantial" sentences, and

20. 28 U.S.C. 994(i) provides:

The Commission shall assure that the
guidelines specify a sentence to a
substantial term of imprisonment for

categories of defendants in which the
defendant --

(1) has a history of two or more prior
Federal, State, or local felony
convictions for offenses committed on
different occasions;
(2) committed the offense as part of a
pattern of criminal conduct from which
the defendant derived a substantial
portion of the defendant's income;
(3) committed the offense in furtherance
of a conspiracy with three or more
persons engaging in a pattern of
racketeering activity in which the
defendant participated in a managerial or
supervisory capacity;
(4) committed a crime of violence that
constitutes a felony while on release
pending trial, sentence or appeal from a
Federal, State, or local felony for which
he was ultimately convicted; or
(5) committed a felony that is set forth
in section 401 or 1010 of the
Comprehensive Drug Abuse Prevention and
Control Act of 1970 (21 U.S.C. [ ] 841
and 960), and that involved trafficking
in a substantial quantity of a controlled
substance.

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49

then it proceeds to list five different "categories" of

defendants to which the instruction applies. In contrast,

994(h)'s usage of the term "categories" is peculiar. See,

supra, note 16. First, 994(h)'s sentencing command (i.e.,

"at or near the maximum term authorized") is more precise

than 994(i)'s broad command (i.e., "substantial"), and,

second, its structure is different: it does not sequentially

enumerate separate categories of defendants to which the

command applies. Hence, I believe the parallel language in

the two subsections is best understood as principally

revealing Congress's intent that the two subsections should

be read together. In other words, by using the parallel

language, Congress awkwardly expressed its intent that

994(h) should be read as carving out a narrow subset of

criminals, otherwise subject to the broader 994(i), that

should be sentenced, not just substantially, but at or near

the maximum penalty possible.

In any event, because I believe that the phrase

"maximum term authorized" cannot plausibly be interpreted to

mean the unenhanced maximum, I likewise believe that

"categories of defendants" must be read narrowly.

II.
II.

Deciding that the phrase "maximum term authorized"

means, in the appropriate circumstances, the enhanced

statutory maximum does not end the analysis. It is still

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50

necessary to consider whether the sentencing scheme

propounded by Amendment 506 nonetheless satisfies Congress's

directive to sentence career offenders "at or near" the

maximum.21

The defendants contend that, when read in context,

994(h)'s "at or near" directive is unclear and ambiguous,

see United States v. Fountain, 885 F. Supp. 185, 188 (N.D.

Iowa 1995), and, accordingly, this court should defer to the

Commission's reasonable interpretation. Moreover, the

defendants argue that 994(h) is only one of many

congressional directives which the Commission had the

responsibility and duty to harmonize in promulgating the

sentencing guidelines. Specifically, the defendants note

that one of the main purposes of the Sentencing Commission is

to reduce "unwarranted disparities" in sentencing and, thus,

assure that individuals who have committed similar acts

receive similar sentences. See 28 U.S.C. 991(b)(1)(B). They

maintain that Amendment 506 achieves this goal because it

eliminates "unwarranted" disparity resulting from exercise of

unchecked prosecutorial discretion in deciding whether or not

to seek the enhanced penalties provided in statutes like

841.

21. I do not restate the facts or describe how the Career
Offender guideline operates. For a thorough discussion of
these matters see Majority Opinion at 4-11.

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51

In response, the government contends that Amendment

506 is invalid because it is inconsistent with the plain

language of 28 U.S.C. 994(h). The government argues that

the sentencing ranges resulting from application of the

amendment do not satisfy 994(h)'s clear command that career

offenders should be sentenced "at or near" the maximum term

authorized. I agree with the government.

First, in analyzing 28 U.S.C. 994(h), I disagree

with the defendants that its command that career offenders

should receive sentences "at or near" the statutory maximum

is unclear and ambiguous. Though Congress undoubtedly could

have been more precise in limiting the Commission's

discretion in this context, the phrase "at or near" has a

fairly unambiguous and narrow ordinary meaning. Common

definitions of the term "near" specify that an object (or

limit) is "near" another if it is "not a far distan[ce] from"

or "close to" the other object (or limit). Webster's Third

New International Dictionary (1986); accord The American

Heritage Dictionary (2d College Ed. 1985) (defining "near" as

"To, at, or within a short distance or interval in space or

time."). The Commission's attempt to implement the "at or

near" directive (as ultimately expressed in Amendment 506),

however, does not satisfy this standard. For example, under

Amendment 506, a defendant who qualifies as a Career Offender

and whose punishment has been enhanced pursuant to 21 U.S.C.

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52

841(b)(1)(C) to a maximum possible penalty of thirty years

is assigned a base sentencing range of only 210 to 262

months. Such a range is but 58.3 to 72.78 percent of the

maximum possible term of thirty years (360 months).

Notwithstanding a certain amount of ambiguity in the term

"near" at the margins, I think it plainly obvious that a

guideline interpretation that, even before any adjustment for

acceptance of responsibility, prescribes such a sentencing

range does not assure that defendants will be sentenced "at

or near" the maximum term authorized.

Moreover, a comparison of 994(h) with 994(i)

makes clear beyond doubt that Congress intended the language

"at or near" to limit narrowly the Commission's discretion to

prescribe sentencing ranges for career offenders. Subsection

994(i), which was added to the enabling legislation in the

Senate prior to the addition of 994(h),22 provides that

22. The guidelines enabling legislation, ultimately enacted
in 1984, has a long and complex legislative history. See

generally Kate Stith & Steve Y. Koh, A Decade of Sentencing

Guidelines: Revisiting the Role of the Legislature, 28 Wake

Forest L. Rev. 223 (1993). Indeed, the legislation enacted
in 1984 traces its roots to a sentencing reform measure
originally introduced by Senator Kennedy in 1975. Id. at

225. Subsection 994(i) first appeared in a Senate version of
the legislation in 1978. See S. 1437, 95th Cong., 2d Sess.

124 (1978) (proposed tit. 28, 994(h)); 124 Cong. Rec. 1463
(1978). The Senate subsequently added 994(h) to a later
version of the legislation in 1983. See S. 668, 98th Cong.,

1st Sess. 7 (1983 (proposed tit. 28, 994(h)); 129 cong.
Rec. 22,883 (1983). Both provisions were part of the
guidelines enabling legislation ultimately enacted in 1984.
Pub. L. No. 98-473, 217, 98 Stat. 2021-22 (codified as
amended 28 U.S.C. 994(h),(i)).

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53

the "Commission shall assure that the guidelines specify a

sentence to a substantial term of imprisonment" for habitual

offenders, racketeers, defendants who commit crimes while

released on bail, and felony drug offenders. 28 U.S.C.

994(i) (emphasis added).23 Subsection 994(i) applies to a

broad class of defendants including all defendants subject to

994(h). Id. 994(i)(1) (subsection applies, inter alia,

to all defendants who have "a history of two or more prior

Federal, State, or local felony convictions for offenses

committed on different occasions"). Subsection 994(h), on

the other hand, applies to a narrower subset of defendants

that Congress felt must be punished even more stringently.

In offering the original version of 994(h), Senator Kennedy

argued that the amendment was needed because "Career

criminals must be put on notice that their chronic violence

will be punished by maximum prison sentences for their

offenses, without parole."24 128 Cong. Rec. 26,518 (1982)

(emphasis added). By adding 994(h), Congress sought to

indicate that certain career offenders, with serious criminal

histories, should receive not simply a "substantial term of

23. See, supra, note 20.

24. Section 994(h) derives from an amendment originally
offered in 1982 by Senator Kennedy to S. 2572. See S. Rep.

225 at 175, reprinted in 1984 U.S.C.C.A.N. 3182, 3358. The

1982 amendment provided in relevant part that "A career
criminal shall receive the maximum or approximately the
maximum penalty for the current offense." 128 Cong. Rec.
26,511-12 (1982).

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54

imprisonment" as prescribed by 994(i), but instead a term of

imprisonment that was at or near the statutory maximum.

Indeed, if 994(h) is only, as the defendants argue, a

general admonishment -- which the Commission has broad

discretion to implement -- to punish career offenders more

harshly than it otherwise would, the subsection adds little

direction not already provided by 994(i).25

Second, the basic structure of the enabling

legislation undercuts the defendants' argument that this

court should defer to the Commission's attempt to harmonize

994(h) with other purportedly conflicting congressional

directives. The goal of avoiding unwarranted sentencing

disparities is, indeed, one of the broad underlying purposes

that motivated Congress's creation of the Sentencing

Commission. See 28 U.S.C. 991(b)(1)(B). Though Congress

restated the goal as one of the directives to which the

Commission should "pay particular attention" in promulgating

the guidelines, see 28 U.S.C. 994(f), it is nonetheless a

general objective not specific to any particular guideline.

25. The point made here, that a comparison of 994(h) with
994(i) clearly evinces Congress's intent in enacting
994(h) to narrow the Commission's discretion in sentencing
career criminals, provides further support for my analysis in
part I. In other words, it strikes me as quite odd to note,
on the one hand, that Congress clearly directed the
Commission to sentence career criminals at or near the
maximum, while noting, on the other, that it gave the
Commission complete discretion to define what that maximum
is.

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55

The directive expressed by 994(h), on the other hand, is a

specific command aimed at a narrow class of defendants who

are established as career criminals. In essence, 994(h) is

a specific exception, dealing with a narrow class of criminal

offenders, that limits the discretion otherwise granted to

the Commission to create sentencing guidelines. Therefore,

while the Commission should strive to harmonize the

implementation of 994(h) with other, more general,

congressional directives, to the extent that 994(h) is in

tension with them, I believe that the more general directives

must bend to accommodate the more specific 994(h), rather

than the other way around.

Third, I find the defendants' and the Commission's

disparity arguments to be largely irrelevant in this context.

One of the principal justifications cited by the Commission

in promulgating Amendment 506 was the perceived need to

eliminate the disparity resulting from the exercise of

prosecutorial discretion in deciding whether or not to seek

maximum penalty enhancements. See U.S.S.G. App. C, Amendment

506, at 409 (November 1994). A review of the legislative

history, however, strongly suggests that the sentencing

disparity that Congress hoped to eliminate did not stem from

prosecutorial discretion, but, instead, from two other

sources: (1) unchecked judicial discretion in formulating

sentences, and (2) the imposition of indefinite sentences

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56

subject to parole board review. See S. Rep. 225 at 38,

reprinted in 1984 U.S.C.C.A.N. 3182, 3221. More

specifically, it is apparent that Congress was particularly

concerned by the fact that different judges -- due to

differing views on the purposes and goals of punishment --

tended to mete out substantially different sentences to

similarly situated individuals convicted of the same crimes.

S. Rep. 225 at 41-46, reprinted in 1984 U.S.C.C.A.N. at 3224-

29.26 It is not apparent, however, that Congress was

overly (or even marginally) concerned with disparities

resulting from prosecutorial discretion over charging

decisions. Indeed, one of the principal criticisms expressed

against adopting the enabling legislation was that sentencing

guidelines would simply shift the unchecked discretion in

sentencing from judges to prosecutors. See S. Rep. 225 at

63, reprinted in 1984 U.S.C.C.A.N. at 3246. Congress could

hardly have been seeking to reduce sentencing disparities

arising from exercise of prosecutorial discretion when the

legislation under consideration would, if anything, enhance

that discretion. Hence, the unwarranted disparities that

Congress intended the Commission to correct were those

26. Senator Kennedy argued that sentencing guidelines were
necessary because "[f]ederal criminal sentencing is a
national disgrace. Under current sentencing procedures,
judges mete out an unjustifiably wide range of sentences to
offenders convicted of similar crimes." 129 Cong. Rec. 1644
(1984).

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57

primarily arising from judicial, not prosecutorial,

discretion.

Finally, as I have noted, 994(h) specifically

refers to the enhanced penalty statutes (e.g. 21 U.S.C.

841) to which it applies. These statutes, in turn, expressly

vest discretion in the prosecutor to seek application of the

criminal history enhancements. See 21 U.S.C. 851. Thus,

it is reasonable to conclude that Congress understood that

its command to sentence at or near the maximum term

authorized could result in disparate sentences for similarly

situated individuals depending on whether or not the

prosecutor had chosen to seek the enhanced penalties provided

by the underlying statutes. Thus, I think the disparities

that result from an implementation of 994(h)'s clear

directive to sentence "at or near" the maximum are not the

"unwarranted disparities" that Congress charged the

Commission to avoid.

While I am sympathetic to the concerns noted by the

Commission in promulgating Amendment 506, I nonetheless find

it contrary to Congress's clear command. In sum, I believe

the amendment is inconsistent with Congress's clearly

expressed intent to limit narrowly the Commission's

discretion to establish sentencing ranges for career

offenders. Accordingly, I dissent with respect to parts I-

IV.

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