United States Court of Appeals
For the First Circuit
No. 01-1858
UNITED STATES OF AMERICA,
Appellant,
v.
ROBERT A. HICKEY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter J. Skinner, Senior U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Dina Michael Chaitowitz, Assistant U.S. Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellant.
Martin G. Weinberg, with whom Oteri, Weinberg & Lawson, Kimberly
Homan, and Sheketoff & Homan were on brief, for appellee.
February 19, 2002
COFFIN, Senior Circuit Judge. The only issue raised in this
narrow appeal is whether the recently effective Amendment 599 to the
United States Sentencing Guidelines applies to career offenders
convicted of armed robbery (18 U.S.C. § 2113(d)) and use of a firearm
during the commission of an armed robbery (18 U.S.C. § 924(c)).
Amendment 599's purpose, broadly stated, is to eliminate duplicative
sentences for essentially the same offense. The district court
concluded that the amendment applied and accordingly reduced appellee's
sentence. Because we are confined by the plain language of the
amendment, we are compelled to conclude that the district court was
without jurisdiction, and therefore erred, in relying on the amendment
to reduce appellee's sentence.
I. Background
In 1989, a jury convicted appellee Robert Hickey of conspiracy,
armed robbery, and use of a firearm during the commission of an armed
robbery, in violation of 18 U.S.C. §§ 371, 2113(d), and 924(c),
respectively. Appellee's two prior armed robberies (in 1976 and 1977)
rendered him a career offender for sentencing purposes. The career
offender guideline, U.S.S.G. § 4B1.1, thus preempted the regular
offense guideline and calculation that otherwise would have been
applicable. Appellee's adjusted offense level jumped from 20 to 34,
and his criminal history category was set at VI. The confluence of the
adjusted offense level of 34 and criminal history category of VI
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produced a guidelines sentencing range of 262 to 327 months on the
substantive armed robbery count. Appellee's § 924(c) conviction
required an additional, consecutive 60-month minimum sentence. At
sentencing, after noting that appellee's career offender offense level
was higher because he was convicted of armed, rather than unarmed
robbery, and downwardly departing 46 months, the district court imposed
a 216-month sentence for the substantive armed robbery, a 60-month
concurrent sentence for the conspiracy, and a 60-month consecutive
sentence on the § 924(c) count. In effect, appellee was twice
penalized for using a firearm during the commission of the robbery--
once under the career offender guideline for armed robbery and once
because of his § 924(c) violation.
In 2001, appellee filed a pro se motion to modify his sentence,
pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 599 to the
Sentencing Guidelines. Amendment 599 applies to § 2K2.4, which guides
courts in sentencing defendants for, inter alia, § 924(c) convictions.
It pertinently provides:
If a sentence . . . is imposed in conjunction with a sentence for
an underlying offense, do not apply any specific offense
characteristic for possession, brandishing, use, or discharge of
an explosive or firearm when determining the sentence for the
underlying offense. A sentence under this guideline accounts for
any explosive or weapon enhancement for the underlying offense of
conviction, including any such enhancement that would apply based
on conduct for which the defendant is accountable under § 1B1.3.
Do not apply any weapon enhancement in the guideline for the
underlying offense, for example, if (A) a co-defendant, as part
of the jointly undertaken criminal activity, possessed a firearm
different from the one for which the defendant was convicted under
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18 U.S.C. § 924(c); or (B) in an ongoing drug trafficking offense,
the defendant possessed a firearm other than the one for which the
defendant was convicted under 18 U.S.C. § 924(c). However, if a
defendant is convicted of two armed bank robberies, but is
convicted under 18 U.S.C. § 924(c) in connection with only one of
the robberies, a weapon enhancement would apply to the bank
robbery which was not the basis for the 18 U.S.C. § 924(c)
conviction.
U.S. Sentencing Guidelines Manual, supp. to app. C, amend. 599 (2000);
see also id. at amend. 607 (making Amendment 599 retroactive).
Appellee's sentence was imposed not on the basis of the underlying
offense, i.e., armed robbery, but on the basis of his career offender
status. On its face, therefore, Amendment 599 does not apply to
appellee. The applicable guideline, § 4B1.1, instructs a court to
determine the career offender offense level by applying the statutory
maximum for the underlying crime. Under the Guidelines in effect in
1989, had appellee not qualified as a career offender, his adjusted
offense level for the armed robbery would have been a level 20.1 Under
the career offender guideline, however, appellee's offense level was
automatically increased to level 34 because the maximum exposure for
armed robbery was 25 years. If appellee had been charged with unarmed
robbery, his offense level under the career offender guideline would
have increased only to a level 32, because the statutory maximum for
that offense is 20 years. In any event, once the career offender
1 The armed robbery carried a base offense level of 18, and
the amount of money stolen resulted in a two-level specific
offense enhancement.
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guideline was applied, the sentencing scheme for the underlying offense
fell out of the picture as did the enhancements to which Amendment 599
refers.
The district court, however, reasoned that although the career
offender guideline technically involved neither an underlying offense,
nor a specific offense characteristic, the disparity created by
appellee's sentencing under both the career offender guideline for
armed robbery and § 924(c) captured the essence of the amendment. The
court reasoned that under the Commission's "expanded interpretation,"
the "underlying offense for which the defendant was actually sentenced
was of being an armed career criminal, and that sentence was enhanced
by reason of his use of a firearm in the commission of the robbery."
The court therefore re-set appellee's career offender level to 32, the
level applicable to unarmed bank robbery, instead of 34, the level for
armed bank robbery. Once revised, the sentencing range became 210 to
262 months, rather than 262 to 327 months. The court selected the
bottom of the range, 210 months, downwardly departed 60 months, and
imposed a sentence of 150 months on the armed robbery count.2 It also
imposed a consecutive 60-month sentence for the § 924(c) count,
2 It appears that the district court mistakenly departed 60
months, instead of the 46 months it had originally departed.
See United States v. Jordan, 162 F.3d 1, 5 (1st Cir. 1998)
(concluding that a reconsideration of a sentence in light of a
retroactive guideline amendment does not give the district court
authority to reconsider other aspects of the original sentence).
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bringing the total sentence to 210 months. On appeal, the government
argues that the district court had no authority to modify appellee's
sentence because Amendment 599 is inapplicable to sentences imposed
under the career offender guideline.
II. Discussion
The meaning of an amendment to the Sentencing Guidelines is a
question of law, over which we exercise plenary review. See United
States v. Caraballo, 200 F.3d 20, 24 (1st Cir. 1999); see also United
States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992). We apply
traditional standards of statutory construction to aid our review.
See, e.g., United States v. DeLuca, 17 F.3d 6, 10 (1st Cir. 1994).
At the time of appellee's original sentencing, Application Note
2 to U.S.S.G. § 2K2.4 explained that for a conviction under § 924(c),
"where a sentence under this section is imposed in conjunction with a
sentence for an underlying offense, any specific offense characteristic
for the possession, use, or discharge of a firearm . . . is not to be
applied in respect to the guideline for the underlying offense." U.S.
Sentencing Guidelines Manual, § 2K2.4 (1988). The background section
explained that the purpose is "to avoid double counting." Id.
In 1998, the guidelines were amended to explain that the
application of § 2K2.4 could sometimes result in a guideline range that
"produces a total maximum penalty that is less than the maximum of the
guideline range that would have resulted had there not been a [§ 924(c)
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conviction] ( i.e., the guideline range that would have resulted if the
enhancements for possession use or discharge of a firearm had been
applied)." U.S. Sentencing Guidelines Manual, § 2K2.4 (1998). It
therefore noted that an upward departure would sometimes be necessary
to ensure that the § 924(c) conviction "does not result in a decrease
in the total punishment." Id.
Effective November 1, 2000, § 2K2.4 was again amended by Amendment
599. The avowed purposes of the amendment were to "(1) avoid
unwarranted disparity and duplicative punishment; and (2) conform
application of guideline weapon enhancements with general guideline
principles." U.S. Sentencing Guidelines Manual, supp. to app. C,
amend. 599 (2000). The first sentence of the revised Application Note
2 reinforces the long-standing notion--applicable in 1989 when appellee
was first sentenced--that a defendant's possession of a weapon cannot
be used to enhance the level of the underlying offense.
The heart of the amendment, however, speaks to relevant conduct.
Before Amendment 599, courts were split as to whether to enhance a
defendant's sentence for either a co-defendant's possession of a weapon
or the defendant's possession of a second weapon during an ongoing drug
trafficking conspiracy. See United States v. Diaz, 248 F.3d 1065, 1107
n.59 (11th Cir. 2001) (cataloging cases). The Commission thus sought
to even application of the relevant conduct guidelines and counseled
courts not to apply enhancements in these situations. See U.S.
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Sentencing Guidelines Manual, supp. to app. C, amend. 599 (2000) ("Do
not apply any weapon enhancement . . . if (A) a co-defendant . . .
possessed a firearm different from the one for which defendant was
convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug
trafficking offense, the defendant possessed a firearm other than the
one for which the defendant was convicted under 18 U.S.C. § 924(c).").
The government argues that appellee's revised sentence is
unauthorized because Amendment 599 is inapplicable both on its face and
in context. Appellee reasons that the district court's re-sentencing
is permissible under an expansive interpretation of the underlying
purposes of the amendment and the meaning of the term "specific offense
characteristic." He essentially contends that "specific offense
characteristic" may refer to an element of a crime if that element
increases a defendant's offense level. Thus, he argues, an armed
robbery charge, rather than an unarmed robbery charge, operates as a
sentencing enhancement, and Amendment 599 applies.
This argument is not without considerable appeal, but,
unfortunately for appellee, when the plain language of a sentencing
guideline provides one clear meaning, our inquiry ends. See Lopez-Soto
v. Hawayek, 175 F.3d 170, 172 (1st Cir. 1999); see United States v.
Sanders, 982 F.2d 4, 8 (1st Cir. 1992) ("It is not our place to rewrite
the Guidelines."). Appellee was sentenced as a career offender; the
specific offense characteristics of his underlying offense therefore
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were immaterial. Under the career offender sentencing scheme, the
sentencing court only considers the underlying offense's statutory
maximum. Because appellee did not receive an enhancement of his
underlying offense when he was sentenced and his sentence under
§ 924(c) had nothing to do with any co-defendants' relevant conduct,
Amendment 599 is inapplicable.3
Moreover, the different treatment relating to enhancement
according to sentences based on "underlying offense" and "career
offender" comports with contemporaneously effective Amendments 598 and
600. Amendment 598 recognized that an upward departure may be
warranted in a § 924(c) sentencing if the defendant is being sentenced
only for a § 924(c) violation but otherwise would have qualified as a
career offender. Amendment 600 sought to clarify when a conviction
under § 924(c) can later trigger the career offender guideline. That
the Commission twice explicitly addressed offenses under § 924(c) vis-
a-vis the career offender guideline, but did not speak to the
sentencing disparity of which appellee complains, is further evidence
that Amendment 599 was not intended to benefit offenders in appellee's
situation.
3Because the language of Amendment 599 is unambiguous, we
do not consider appellee's request to apply the rule of lenity.
United States v. Luna-Díaz, 222 F.3d 1, 3-4 n.2 (1st Cir. 2000)
(noting that the rule of lenity "comes into operation . . . only
when the language of the statute is ambiguous").
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The May 15, 2001 sentence of the district court is vacated and the
case is remanded to the district court for reinstatement of the
September 18, 1989 sentence.
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