United States v. Sanchez

05-3812(L)
USA v. Sanchez

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 - - - - - -

4 August Term, 2006

5 (Argued: May 30, 2007 Decided: February 29, 2008)

6

7 Docket Nos. 05-3812(L), 05-3819(CON), 05-3824(CON), 05-4717(CON)

8 _________________________________________________________

9 UNITED STATES OF AMERICA,

10 Appellee,

11 - v. -

12 ALFONSO SANCHEZ, DARYL FOX, TROY KEYS, and RAYMOND FOX,
13 aka Knoc, aka Nack,

14 Defendants-Appellants.
15 _________________________________________________________

16 Before: KEARSE, STRAUB, and POOLER, Circuit Judges.

17 Appeals challenging prison terms imposed in the United

18 States District Court for the Southern District of New York, Miriam

19 Goldman Cedarbaum, Judge, pursuant to provisions for enhanced

20 punishment of repeat offenders, see 28 U.S.C. § 994(h) and 21 U.S.C.

21 § 851, following defendants' convictions on substantive and

22 conspiracy counts charging trafficking in cocaine and cocaine base,

23 see 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846.

24 Affirmed as to defendant Raymond Fox; remanded for

25 clarification as to defendants Sanchez and Keys and for clerical
 1 correction of the judgments entered against them. Appeal of

2 defendant Daryl Fox dismissed, with instruction for clerical

3 correction of the judgment entered against him.

4 JESSICA A. ROTH, Assistant United States
5 Attorney, New York, New York (Michael J.
6 Garcia, United States Attorney for the
7 Southern District of New York, Harry
8 Sandick, Assistant United States Attorney,
9 New York, New York, on the brief), for
10 Appellee.

11 WILLIAM J. STAMPUR, New York, New York
12 (Hurwitz Stampur & Roth, New York, New
13 York, on the brief), for Defendant-
14 Appellant Alfonso Sanchez.

15 LOUIS V. FASULO, New York, New York
16 (Fasulo, Shalley & DiMaggio, New York, New
17 York), representing Defendant-Appellant
18 Daryl Fox, filed a brief pursuant to
19 Anders v. California, 386 U.S. 738 (1967).

20 STACEY RICHMAN, Bronx, New York (Law
21 Office of Murray Richman, Bronx, New York,
22 on the brief), for Defendant-Appellant
23 Troy Keys.

24 LINDA GEORGE, Hackensack, New Jersey, for
25 Defendant-Appellant Raymond Fox.

26 KEARSE, Circuit Judge:

27 Defendants Alfonso Sanchez, Daryl Fox (or "Daryl"), Troy

28 Keys, and Raymond Fox (or "Raymond") appeal from judgments entered

29 in the United States District Court for the Southern District of New

30 York, Miriam Goldman Cedarbaum, Judge, following their pleas of

31 guilty to conspiracy to distribute and possess with intent to

32 distribute narcotics, in violation of 21 U.S.C. § 846, and

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 1 distribution of and possession with intent to distribute narcotics,

2 in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A).

3 Sanchez was sentenced principally to 188 months' imprisonment; Daryl

4 Fox was sentenced principally to 135 months' imprisonment; and Keys

5 was sentenced principally to 235 months' imprisonment; each of those

6 prison terms was to be followed by a five-year term of supervised

7 release. Raymond Fox, against whom the government had filed a

8 prior-felony information pursuant to 21 U.S.C. § 851 giving notice

9 that he was subject to the enhanced penalties set forth in 21 U.S.C.

10 § 841(b)(1)(A), was sentenced principally to 240 months'

11 imprisonment, to be followed by a 10-year term of supervised

12 release. On appeal, Sanchez and Keys challenge the prison terms

13 imposed on them, contending principally that the district court

14 erred in believing that it lacked authority under 28 U.S.C. § 994(h)

15 to impose shorter terms. Raymond Fox challenges the

16 constitutionality of 21 U.S.C. § 851. Daryl Fox's attorney has

17 moved to withdraw as counsel pursuant to Anders v. California, 386

18 U.S. 738 (1967), stating that Daryl has no nonfrivolous issues for

19 appeal. For the reasons that follow, we affirm as to Raymond Fox;

20 we dismiss the appeal of Daryl Fox, with instruction for the

21 clerical correction of the judgment entered against him; and we

22 remand for clarification, and for such further proceedings as may be

23 necessary, with respect to the sentences imposed on Sanchez and

24 Keys.

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 1 I. BACKGROUND

2 The events leading to the present prosecution, which

3 followed a lengthy investigation by the Drug Enforcement

4 Administration ("DEA") into narcotics trafficking in the New York

5 area, are not in dispute.

6 A. The Events and the Pleas of Guilty

7 On November 5, 2003, DEA agents raided an apartment used

8 by defendants in their narcotics distribution business. As some of

9 the agents approached the door of the apartment, others observed

10 bags being thrown out of a window in the apartment and observed

11 several people--including Sanchez, Daryl Fox, and Raymond Fox--

12 exiting through the window. In the bags thrown through the window,

13 the agents found approximately $60,000 in cash, 1,860 grams of

14 cocaine, and 478 grams of cocaine base in a form commonly known as

15 crack ("crack").

16 Defendants and others were subsequently arrested. The

17 pertinent superseding indictment charged defendants in two counts:

18 (a) conspiracy to distribute and possess with intent to distribute

19 more than five kilograms of a substance containing cocaine and more

20 than 50 grams of a substance containing crack, in violation of 21

21 U.S.C. § 846 (count one); and (b) distribution of and possession

22 with intent to distribute those quantities of substances containing

23 cocaine and crack, respectively, in violation of 21 U.S.C. §§ 812,

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 1 841(a)(1), and 841(b)(1)(A) (count two). Under the pertinent

2 provisions of § 841(b)(1)(A), the penalty for each of the above

3 charges included imprisonment for a maximum of life or a minimum of

4 10 years, or, as to a defendant who committed such a crime after a

5 prior conviction of a drug trafficking felony, imprisonment for a

6 maximum of life or a minimum of 20 years. See 21 U.S.C.

7 § 841(b)(1)(A) (penalties for distribution and possession with

8 intent to distribute); id. § 846 (penalties for conspiracy are the

9 same as those prescribed for the offense whose commission was the

10 object of the conspiracy). Pursuant to 21 U.S.C. § 851(a)(1), the

11 government filed an information against Raymond Fox (the "§ 851

12 Information") alleging that his record included prior convictions

13 for drug trafficking felonies.

14 In the summer of 2004, Keys, Daryl Fox, and Raymond Fox

15 pleaded guilty to counts one and two of the superseding indictment.

16 Sanchez pleaded guilty to both of those counts insofar as they

17 charged offenses with respect to cocaine but denied his involvement

18 with crack; the district court accepted his plea as thus limited.

19 B. Sentencing

20 Daryl Fox entered his plea of guilty pursuant to a plea

21 agreement. The agreement stated the understanding that, under the

22 Sentencing Guidelines ("Guidelines"), Daryl's criminal history

23 category ("CHC") was III; the parties stipulated that his total

24 offense level would be 31. Accordingly, subject to a final

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 1 determination by the district court, the parties agreed that Daryl's

2 range of imprisonment would be 135-168 months. Daryl agreed, inter

3 alia, not to appeal any sentence imposing a prison term within or

4 below that range. The prison term eventually imposed on Daryl was

5 135 months.

6 A presentence report ("PSR") was prepared on each of the

7 defendants. The PSRs on Sanchez, Keys, and Raymond Fox, all of whom

8 were in their early 30s at the time of the present offenses,

9 reported that each of them had previously been convicted of at least

10 two drug trafficking felonies or violent felonies, and that each was

11 thus a career offender within the meaning of Guidelines § 4B1.1 (the

12 "career-offender guideline"). Subsection (a) of that guideline

13 states that

14 [a] defendant is a career offender if (1) the
15 defendant was at least eighteen years old at the
16 time the defendant committed the instant offense of
17 conviction; (2) the instant offense of conviction is
18 a felony that is either a crime of violence or a
19 controlled substance offense; and (3) the defendant
20 has at least two prior felony convictions of either
21 a crime of violence or a controlled substance
22 offense.

23 Guidelines § 4B1.1(a). Subsection (b) of that guideline provides

24 that the CHC of a career offender is VI. See id. § 4B1.1(b).

25 Career-offender status may also increase the defendant's offense

26 level. Before any adjustment for acceptance of responsibility, the

27 offense level of a career offender whose offense subjects him to a

28 maximum prison term of life is at least 37. See id.

29 None of the defendants disputed the accuracy of the PSRs'

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 1 descriptions of their respective criminal records. The PSR for

2 Sanchez and the PSRs for Keys and Raymond as ultimately amended

3 found that the total offense level for each, taking into account a

4 three-step decrease for acceptance of responsibility, was 34. Given

5 an offense level of 34 and a CHC of VI, the Guidelines-recommended

6 range of imprisonment for each of these three defendants was 262-327

7 months. The PSR for Raymond noted that, by reason of the § 851

8 Information filed against him, he was subject to a 20-year statutory

9 minimum prison term.

10 Defendants were sentenced during the summer of 2005. In

11 January 2005, the Supreme Court had decided United States v. Booker,

12 543 U.S. 220 (2005), holding that the Guidelines are not mandatory

13 but advisory. Each defendant urged the district court to impose a

14 prison term below the range recommended for him under the advisory

15 Guidelines. A separate sentencing hearing was held for each

16 defendant.

17 1. Keys

18 To the extent pertinent to his appeal, Keys's principal

19 contention at sentencing was that career-offender status

20 substantially overrepresented the seriousness of his criminal

21 history. His record consisted of two prior felony convictions: a

22 1990 New York State conviction for criminal possession of a

23 controlled substance in the third degree, for which he was sentenced

24 to serve 1-3 years in prison and served approximately six months;

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 1 and a 1991 New York State conviction for attempted criminal

2 possession of a controlled substance in the fifth degree, for which

3 he was sentenced to 1½-3 years in prison and served the minimum.

4 Keys pointed out that his prior offenses were committed when he was

5 a very young man and that he had never served more than 18 months in

6 jail--substantially less than the 10-year minimum sentence he was

7 facing for the charges in the instant case. Keys's attorney argued

8 that Keys, who had steady legitimate employment and a positive

9 recommendation from one of his former employers, was not the type of

10 person to whom career-offender status was intended to be applied and

11 urged the court not to sentence him to 262-327 months' imprisonment

12 as recommended by the PSR, but rather "to sentence him to the

13 mandatory minimum" of 120 months (Keys Sentencing Transcript, June

14 28, 2005 ("Keys S.Tr."), at 8; see also id. at 21-23).

15 The district court stated that "because of the career

16 offender statute it will certainly have to be more than th[e

17 mandatory minimum]" (id. at 14), referring to 28 U.S.C. § 994(h),

18 which instructs the Sentencing Commission (or "Commission") to

19 assure that the guidelines governing career offenders specify a

20 range of "imprisonment at or near the maximum term authorized." The

21 Assistant United States Attorney ("AUSA") agreed:

22 THE COURT: . . . . I have read and reread the
23 statute on career offense, and . . . Congress has
24 made it clear that a career offender must be above--

25 MS. ROTH [AUSA]: The minimum.

26 THE COURT: Well, more than above the minimum.

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 1 MS. ROTH: Near the maximum.

2 THE COURT: Well that's the statutory language.
3 The statutory language makes clear that a career
4 offender may not be given as short a sentence as
5 somebody similarly situated, if there is such a
6 thing, who is not a career offender.

7 So, there has to be some distinction based on
8 career offense, and that means clearly, whatever
9 else, Mr. Keys will go to prison for more than the
10 mandatory minimum, under all circumstances that I
11 can see here; that is, I have carefully considered
12 enough to know that. How much more is really my
13 problem.

14 (Keys S.Tr. 18-19.)

15 The court agreed that the 262-327-month range of

16 imprisonment resulting from Keys's designation as a career offender

17 overrepresented the seriousness of his criminal history.

18 Recognizing both that the Guidelines provided that "[i]f reliable

19 information indicates that the defendant's criminal history category

20 substantially over-represents the seriousness of the defendant's

21 criminal history or the likelihood that the defendant will commit

22 other crimes, a downward departure may be warranted," Guidelines

23 § 4A1.3(b)(1), and that as amended in October 2003 the Guidelines

24 provided that such a departure "may not exceed one criminal history

25 category," id. § 4A1.3(b)(3)(A), the court reduced Keys's CHC by one

26 step, from VI to V. That reduction, in combination with an offense

27 level of 34, resulted in an advisory Guidelines range of 235-293

28 months. The court stated, "I think that in this case 235 is the

29 appropriate number." (Keys S.Tr. 32.) Although Keys's attorney

30 argued "that that is still an overstatement" of Keys's criminal

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 1 history (id.), the court stated that it read "[t]he career offender

2 statute . . . as itself placing a substantial limit on the

3 appropriate sentence" (id. at 35).

4 The court sentenced Keys to 235 months, the bottom of what

5 it concluded was the applicable advisory-Guidelines range, stating

6 that

7 [i]t is really under the statute on career offender
8 that I feel bound to carry out the intention of
9 Congress as expressed in that statute, to impose a
10 substantially heavier sentence on a career offender,
11 and I do so with that understanding. . . . I have
12 studied that statute over and over in an effort to
13 discern the intention of Congress, and that is the
14 best I can do in this case.

15 (Id. at 47-48.)

16 2. Sanchez

17 At his plea hearing, Sanchez had argued that his role in

18 the conspiracy was minor, i.e., that he merely delivered drugs and

19 collected money when instructed to do so. He had also denied any

20 involvement with crack, and his plea of guilty had been accepted

21 with respect to trafficking in cocaine only. At his sentencing

22 hearing, Sanchez did not dispute that he met the definition of

23 career offender; his PSR credited him with at least two prior

24 felonies that qualified as crimes of violence. Sanchez's attorney

25 argued, however, that while Sanchez was a career offender

26 "technically," he was not one "in reality" (Sanchez Sentencing

27 Transcript, June 29, 2005 ("Sanchez S.Tr."), at 3), noting that his

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 1 role in these offenses was minor, that Sanchez had never before been

2 convicted of a drug offense, and that his most serious prior crimes

3 had been committed more than 10 years earlier, when he was a

4 teenager or very young man. Sanchez's attorney urged the court to

5 depart downward to 120 months, the statutory minimum, from the

6 PSR-recommended imprisonment range of 262-327 months.

7 The district court noted, as it had in sentencing Keys on

8 the previous day, that where career-offender status overstates a

9 defendant's criminal history, Guidelines § 4A1.3(b) permits a CHC

10 reduction from VI to V. But the court stated, again referring to

11 28 U.S.C. § 994(h),

12 [t]here is a statute. This is not entirely a
13 guidelines matter. The Congress defined career
14 criminal and . . . the criminal history of this
15 defendant may or may not be overstated. His role in
16 the offense may justify an adjustment, but whether
17 he fits the definition in the statute is a different
18 matter.

19 (Sanchez S.Tr. 5.) After the AUSA indicated that the court was

20 entitled, even "post Booker," to consider a defendant's role in

21 determining an appropriate sentence under 18 U.S.C. § 3553, the

22 court stated

23 I do find that the factors set out by Congress for
24 sentencing, which suggest that every sentence shall
25 be individually determined, make[] at least in this
26 case that offense level immune to consideration of
27 role in the offense. To that extent as applied in
28 this particular case, I find that applying offense
29 level 37 [sic] to Alfonso Sanchez results in a
30 sentence that is not consistent with the factors set
31 out by Congress in determining sentence; that the
32 sentence that would result is clearly longer than
33 necessary for any purpose of deterrence.

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 1 (Id. at 15.) The court stated that if it were allowed, under the

2 Guidelines, to adjust Sanchez's offense level for his role in the

3 offense, it

4 would set the offense level at 32, deducting two
5 levels from the 34 that appears in the presentence
6 report . . . .

7 . . . .

8 I find that on the basis of all the information
9 that has been presented to me in this case, and on
10 the basis of the plea allocution of Mr. Sanchez,
11 that he had no contact with crack and that his role
12 was minor in this arrangement. Therefore, if I were
13 able to apply a 2-level deduction for minor offense
14 role his level would be 32[,] and if I also were to
15 follow the policy pronouncement of the Sentencing
16 Commission . . . where the criminal history of a
17 career offender substantially overstates the actual
18 history, in this case because the two offenses taken
19 into consideration were committed when the defendant
20 was in his teens and the length of those sentences
21 [was short] as compared to the length of any
22 sentence to which he is now subject, [the resulting
23 sentence would be] far beyond anything required for
24 deterrence. That is, he has not served very much
25 time in prison so one would expect that he could be
26 deterred by even the mandatory minimum of ten years,
27 which is a very substantial number. But if I were
28 to make the calculation that I have described, the
29 guideline range for level 32 and criminal history 5
30 would be 188 to 235 months.

31 I would then set the career offender sentence
32 at 188 months.

33 (Id. at 15-17 (emphases added).)

34 Although agreeing with Sanchez's attorney that a sentence

35 of 120 months would provide sufficient deterrence, the court said,

36 I also have to--and do--carefully consider the
37 intent of Congress in enacting a statute that
38 defines career criminal and that provides that a
39 career criminal must be sentenced above the

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 1 mandatory minimum.

2 (Id. at 17 (emphasis added).) The court added that

3 this is not a matter of guidelines. This is a
4 matter of a congressional enactment which directs,
5 as I read it. . . . Congress has provided that a
6 career offender, as defined by statute, must be
7 sentenced above the mandatory minimum.

8 (Id. at 18; see also id. at 19 ("[A]s I read the congressional

9 statute a career criminal may not be sentenced to the minimum.");

10 id. at 20 ("I feel bound by the statute itself . . . . not to reduce

11 a career criminal sentence to the level of a mandatory minimum.");

12 id. at 21-22 ("I read [the at-or-near-the-maximum language] as

13 meaning that Congress has provided that what Congress defined as a

14 career offender requires some time in addition to the mandatory

15 minimum.").)

16 The AUSA stated, "I am not sure that 28 U.S.C. 994

17 requires the court per se to impose a sentence higher than the

18 maximum [sic]"; and she interpreted the court as saying that § 994

19 was merely a factor to be considered, but the court disagreed:

20 MS. ROTH: . . . . I don't understand your
21 Honor to be saying that you feel you, as a matter of
22 law, under 994 could not under any circumstances
23 impose a sentence that was the mandatory minimum for
24 a career offender.

25 THE COURT: Well, I think I am saying that.

26 (Sanchez S.Tr. 20 (emphasis added).)

27 The court went on to state that, "in any event, in this

28 particular case I am of the view that even if I could I would not

29 impose a sentence less than I have determined." (Id. at 21.) The

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 1 AUSA asked

2 whether[,] analyzing objectively the factors under
3 3553 taken altogether and including in that
4 consideration Congress' intent in enacting 994, is
5 this the considered judgment of the court that this
6 is an appropriate sentence for this defendant? I
7 think that is the question.

8 THE COURT: Yes, of course. I would not set it
9 otherwise.

10 But I do feel constrained by the statute. I
11 think that is pretty clear.

12 (Id. at 24 (emphases added).) Sanchez's attorney immediately

13 stated:

14 My colleague is trying to prepare the circuit for
15 review, Judge, and I appreciate your comments
16 because I think you have made it perfectly clear
17 that if you could you might impose a lesser
18 sentence.

19 THE COURT: That is correct.

20 (Id. at 24-25 (emphases added); see also id. at 23 ("If I were free

21 to choose the sentence we would be in an entirely different

22 situation.").)

23 Ultimately, the court departed downward in criminal

24 history category to a CHC of V in accordance with Guidelines

25 § 4A1.3(b); and, going beyond what the court appeared to believe was

26 sanctioned by the Guidelines, the court further reduced the prison

27 time to be served by the equivalent of two Guidelines-offense-level

28 steps in consideration of Sanchez's role in the offense. Such a

29 two-step reduction in offense level under the Guidelines would have

30 resulted in a Guidelines range of 188-235 months. The court ordered

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 1 Sanchez to serve 188 months.

2 3. Raymond Fox

3 Raymond Fox was sentenced some five weeks later. His

4 attorney did not dispute that Raymond's record included the prior

5 narcotics felony convictions set forth in the government's § 851

6 Information; nor did she argue that Raymond was not a career

7 offender. She argued, however, that the effect of the government's

8 election to file the § 851 Information against Raymond--and only

9 Raymond--was to subject him to a statutory mandatory minimum term of

10 20 years' imprisonment, whereas his position in the narcotics

11 enterprise was similar to that of Keys, for whom the court had

12 ordered a prison term of less than 20 years. She argued that, in

13 order to avoid imposing disparate sentences on similarly situated

14 defendants, the court had discretion to sentence Raymond to less

15 than the statutory minimum of 20 years. The district court rejected

16 this contention, stating that its duty was to follow the will of

17 Congress as expressed in § 841(b)(1)(A)'s provision setting the

18 minimum allowable sentence.

19 Raymond's attorney then urged the court, if it could not

20 sentence Raymond below the statutory minimum, to sentence him to no

21 more than the minimum in order to lessen the disparity--occasioned

22 only by the government's decision to file a § 851 Information

23 against Raymond but not Keys--between the sentences imposed on

24 similarly situated defendants. The court had initially stated that

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 1 it read "the Congressional language" of 28 U.S.C. § "994 . . . as

2 requiring in the case of a career offender that the sentence not

3 even be at the minimum." (Raymond Fox Sentencing Transcript, August

4 2, 2005 ("Raymond S.Tr."), at 10 (emphasis added).) However, the

5 court was persuaded by the proportionality argument; and the

6 government, although it had opposed the request that Raymond be

7 sentenced below the statutory minimum, made no response to the

8 request that he be sentenced at the minimum.

9 The court sentenced Raymond to 240 months', or 20 years',

10 imprisonment, stating

11 I set the minimum sentence required by law because
12 to sentence Mr. Fox to any more time would violate
13 the strong interest that both the Congress and the
14 Sentencing Commission have shown in proportionality,
15 and that is one of the important factors set out in
16 the statute and it is, indeed, an important factor
17 in the administration of justice.

18 (Id. at 19.)

19 C. Issues on Appeal

20 Defendants have appealed their sentences. Daryl Fox's

21 attorney has moved to withdraw as counsel and has filed an Anders

22 brief discussing the record and stating that Daryl has no

23 nonfrivolous arguments to support his appeal. The government has

24 moved to dismiss Daryl's appeal on the ground that, in his plea

25 agreement, he waived the right to appeal the sentence that was

26 ultimately imposed on him. Those motions have merit and are

27 granted, with instruction for a clerical correction to be made to

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 1 the judgment entered against him, see Part II.E. of this opinion.

2 Sanchez and Keys contend that the district court erred in

3 believing that 28 U.S.C. § 994(h) deprived it of authority to order

4 shorter prison terms than those it imposed. Keys also argues that

5 the court failed to consider the sentencing factors set out in

6 18 U.S.C. § 3553 and that his sentence is unreasonable. For the

7 reasons stated in Part II.B. below, we conclude that § 994(h) did

8 not deprive the district court of authority to impose shorter prison

9 terms than those it imposed; and, as discussed in Part II.C. below,

10 we remand for clarification as to whether with that understanding of

11 § 994(h) the court would have imposed shorter terms, and for further

12 proceedings, if necessary, with respect to the sentences of Sanchez

13 and Keys.

14 Raymond Fox makes two constitutional challenges. He

15 contends (a) that 21 U.S.C. § 851 violates the principle of

16 separation of powers, and (b) that the government's filing of the

17 § 851 Information against him without explanation violated his right

18 to due process. For the reasons stated in Part II.D. below, we

19 reject these contentions.

20 II. DISCUSSION

21 A. Post-Booker Procedures and Standards of Review

22 Following the Supreme Court's decision in Booker, the

23 district court may impose either a Guidelines sentence or a non-

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 1 Guidelines sentence. See, e.g., Booker, 543 U.S. at 245-46; United

2 States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005) ("Crosby"). In

3 arriving at either type of sentence, the sentencing judge must

4 consider, inter alia, the factors set forth in 18 U.S.C. § 3553(a),

5 including the imprisonment ranges recommended by the advisory

6 Guidelines and the available departure authority. See, e.g., United

7 States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006)

8 ("Rattoballi"); United States v. Selioutsky, 409 F.3d 114, 118 (2d

9 Cir. 2005) ("Selioutsky"); Crosby, 397 F.3d at 111-12.

10 In the post-Booker era, we review sentences for

11 reasonableness, see, e.g., Booker, 543 U.S. at 261; United States v.

12 Fernandez, 443 F.3d 19, 26 (2d Cir.), cert. denied, 127 S. Ct. 192

13 (2006); Crosby, 397 F.3d at 113, under an abuse-of-discretion

14 standard, see, e.g., Gall v. United States, 128 S. Ct. 586, 600

15 (2007); United States v. Fernandez, 443 F.3d at 27; Crosby, 397 F.3d

16 at 114. "Reasonableness review involves consideration of both the

17 length of the sentence (substantive reasonableness) and the

18 procedures used to arrive at the sentence (procedural

19 reasonableness)." United States v. Canova, 485 F.3d 674, 679 (2d

20 Cir. 2007).

21 As to substantive reasonableness, "[s]ection 3553(a) . . .

22 sets forth numerous factors that guide sentencing. Those factors

23 [are to] guide appellate courts . . . in determining whether a

24 sentence is unreasonable." Booker, 543 U.S. at 261. Thus, in

25 reviewing a sentence for "substantive reasonableness, . . . we

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 1 consider whether the length of the sentence is reasonable in light

2 of the factors outlined in 18 U.S.C. § 3553(a)." Rattoballi, 452

3 F.3d at 132. That section provides in part that the court, in

4 determining the particular sentence to be imposed, is to consider

5 "the nature and circumstances of the offense and the history and

6 characteristics of the defendant," 18 U.S.C. § 3553(a)(1); and it

7 provides that "[t]he court shall impose a sentence sufficient, but

8 not greater than necessary, to comply with the purposes set forth in

9 paragraph (2) of this subsection," id. § 3553(a). Paragraph (2) of

10 subsection (a) requires the court to consider "the need for the

11 sentence" that is imposed

12 (A) to reflect the seriousness of the offense,
13 to promote respect for the law, and to provide just
14 punishment for the offense;

15 (B) to afford adequate deterrence to criminal
16 conduct;

17 (C) to protect the public from further crimes
18 of the defendant; and

19 (D) to provide the defendant with needed
20 educational or vocational training, medical care, or
21 other correctional treatment in the most effective
22 manner . . . .

23 18 U.S.C. § 3553(a)(2). Among the other factors that § 3553(a)

24 requires the court to consider are the kinds of sentences and the

25 sentencing ranges established for "the applicable category of

26 offense committed by the applicable category of defendant as set

27 forth in the guidelines . . . issued by the Sentencing Commission,"

28 id. § 3553(a)(4)(A)(i); "any pertinent policy statement . . . issued

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 1 by the Sentencing Commission," id. § 3553(a)(5)(A); and "the need to

2 avoid unwarranted sentence disparities among defendants with similar

3 records who have been found guilty of similar conduct," id.

4 § 3553(a)(6).

5 As to procedural reasonableness, we seek to determine,

6 inter alia, whether the sentencing judge "select[ed] a sentence in

7 violation of applicable law," or "committed an error of law in the

8 course of exercising discretion," Crosby, 397 F.3d at 114. A

9 sentence would be procedurally unreasonable if, for example, the

10 sentencing judge failed to consider the factors listed in § 3553(a),

11 including the relevant guidelines and policy statements. It would

12 also be procedurally unreasonable if the court made "[a]n error in

13 determining the applicable Guideline range or the availability of

14 departure authority," Selioutsky, 409 F.3d at 118 (emphasis added);

15 see, e.g., Crosby, 397 F.3d at 114-15, or erroneously interpreted a

16 pertinent statutory provision as restricting its authority to impose

17 a given non-Guidelines sentence.

18 Ordinarily, the matter of whether to grant a departure or

19 a non-Guidelines sentence lies within the discretion of the

20 sentencing judge. See, e.g., Selioutsky, 409 F.3d at 118-19. Under

21 the pre-Booker sentencing regime, a defendant had no right to appeal

22 the sentencing court's discretionary refusal to grant a downward

23 departure, see, e.g., United States v. Cuevas, 496 F.3d 256, 267-68

24 (2d Cir. 2007); United States v. Stinson, 465 F.3d 113, 114 (2d Cir.

25 2006), or to appeal the extent of a downward departure, see, e.g.,

- 20 -
 1 United States v. Hargrett, 156 F.3d 447, 450 (2d Cir.), cert.

2 denied, 525 U.S. 1048 (1998); United States v. Doe, 996 F.2d 606,

3 607 (2d Cir. 1993). However, the matter of whether the court has

4 the authority to impose a given sentence--either as a Guidelines

5 departure or as a non-Guidelines sentence--is a question of law,

6 see, e.g., United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005)

7 (a refusal to grant a departure, or a greater departure, is

8 reviewable to the extent that the sentencing court may have

9 misapprehended its departure authority); United States v. Belk, 346

10 F.3d 305, 314 (2d Cir. 2003), cert. denied, 540 U.S. 1205 (2004);

11 United States v. Rivers, 50 F.3d 1126, 1130 (2d Cir. 1995)

12 ("Rivers") ("A defendant may seek appellate review of a refusal to

13 depart downward if that refusal was based on the mistaken conclusion

14 that the court did not have the legal authority to depart."); United

15 States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir. 1990) ("court's

16 mistaken conception that it lacked the authority" to depart on a

17 given ground is "an error of law"). We review the question of the

18 existence of departure authority de novo. See, e.g., United States

19 v. Belk, 346 F.3d at 314 ("If the district court's refusal to

20 depart rested on a 'misapprehension' of its legal authority, an

21 appeal is proper, and we review the propriety of that legal

22 determination de novo." (other internal quotation marks omitted)).

23 Likewise the matter of whether any statute deprives the sentencing

24 court of authority to impose a given sentence is a question of law

25 to be reviewed de novo.

- 21 -
 1 B. 28 U.S.C. § 994

2 As discussed in Part I.B. above, the PSRs' Guidelines

3 calculations for Sanchez and Keys resulted in recommended

4 imprisonment ranges of 262-327 months. Sanchez and Keys do not

5 suggest that there was any error in these calculations or that the

6 district court misinterpreted the Guidelines. Rather, they contend

7 that the court misapprehended its departure authority. The record

8 makes it clear that the district judge understood that the

9 Guidelines, after the Supreme Court's decision in Booker, are

10 advisory rather than mandatory, and that she was under no

11 misimpression that her authority to grant a downward departure, or

12 a greater departure than she granted, from the Guidelines-

13 recommended range of imprisonment for career offenders was

14 eliminated by the Guidelines. In sentencing Sanchez and Keys,

15 however, the judge indicated that she was deprived of the authority

16 to depart farther by 28 U.S.C. § 994(h). (See, e.g., Keys S.Tr. 13

17 ("[U]ltimately I will have to decide not what the sentencing

18 commission did for career offender[s] but what Congress did for

19 career offender[s] because there is a statutory provision that I

20 have to consider and apply as best I can."); id. at 48 (after

21 studying the statute, 235 months "is the best I can do in this

22 case"); Sanchez S.Tr. 23 ("If I were free to choose the sentence we

23 would be in an entirely different situation.").) For the reasons

24 that follow, we conclude that the granting of a reasonable non-

25 Guidelines sentence or of a larger downward departure was not barred

- 22 -
 1 by § 994.

2 Section 994 was enacted as part of the Sentencing Reform

3 Act of 1984 (the "Act"), 18 U.S.C. § 3551 et seq.; 28 U.S.C.

4 §§ 991-998. To the extent pertinent here, § 994(h) provides that

5 [t]he Commission shall assure that the guidelines
6 specify a sentence to a term of imprisonment at or
7 near the maximum term authorized for categories of
8 defendants in which the defendant is eighteen years
9 old or older and--

10 (1) has been convicted of a felony that is--

11 (A) a crime of violence; or

12 (B) an offense described in . . .
13 21 U.S.C. 841 . . . and

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

16 (A) a crime of violence; or

17 (B) an offense described in . . .
18 21 U.S.C. 841 . . . .

19 28 U.S.C. § 994(h).

20 The career-offender guideline, § 4B1.1, was promulgated by

21 the Sentencing Commission in response to this instruction. Thus, as

22 quoted in Part I.B. above, subsection (a) of that guideline defines

23 "career offender," in terms closely tracking the statutory language,

24 as a person who was at least 18 years of age when he committed the

25 current violent felony or drug trafficking felony and who had

26 previously been convicted of at least two prior violent or drug

27 trafficking felonies. Guidelines § 4B1.1(a). In order to assure a

28 sentencing range at or near the statutory maximum for such a

- 23 -
 1 defendant, subsection (b) provides that "[a] career offender's

2 criminal history category in every case under this subsection shall

3 be Category VI," which is the highest category, and it sets out a

4 table of offense levels to be applied "if the offense level for a

5 career offender from the table in this subsection is greater than

6 the offense level otherwise applicable," id. § 4B1.1(b). Under the

7 subsection (b) table, the higher the statutory maximum prison term

8 for the offense of conviction, the higher the assigned offense

9 level. For example, assuming no reduction for acceptance of

10 responsibility, the offense level for a career offender whose

11 offense carries a maximum prison term of 25 or more years is 34;

12 that offense level, combined with a CHC of VI, results in a

13 Guidelines-recommended range of imprisonment of 262-327 months, or

14 21.83 to 27.25 years. The offense level for a career offender whose

15 offense carries a maximum prison term of life is 37; that offense

16 level, combined with a CHC of VI, results in a Guidelines-

17 recommended range of imprisonment of 360 months to life. See id.

18 These guidelines reflect the instructions given by Congress in

19 28 U.S.C. § 994(h).

20 Section 994(h), however, by its terms, is a direction to

21 the Sentencing Commission, not to the courts, and it finds no

22 express analog in Title 18 or Title 21. While 21 U.S.C. § 841(b)

23 expressly establishes the minimum and maximum prison terms that the

24 court is allowed to impose for violations of § 841(a), there is no

25 statutory provision instructing the court to sentence a career

- 24 -
 1 offender at or near the statutory maximum. And while the sentencing

2 statute expressly directs the district court to "consider" the

3 "sentencing range established for . . . the applicable category of

4 defendant as set forth in the guidelines," 18 U.S.C.

5 § 3553(a)(4)(A), it does not instruct the court to impose such a

6 sentence. See generally United States v. LaBonte, 520 U.S. 751, 761

7 n.5 (1997) (discussing § 994(h) and distinguishing that section from

8 18 U.S.C. § 5037(c)(1)(C) (establishing the maximum prison term that

9 "may be ordered for a . . . juvenile delinquent"), which "involved

10 a directive to a sentencing court, . . . whereas 28 U.S.C. § 994(h)

11 is a directive to the Commission.").

12 The absence of any express statutory instruction to the

13 court to sentence a career offender to a prison term at or near the

14 statutory maximum was not an oversight. In deliberating on what

15 provisions to include in the sentencing statute itself, Congress

16 considered an amendment proposed by Senator Kennedy and others

17 ("Kennedy amendment") to S. 2572, 97th Cong. (1982), one of the

18 bills that was a precursor to the Act, which would have included

19 such a provision. The proposed Kennedy amendment, like 28 U.S.C.

20 § 994(h), focused on persons (albeit on persons whose ages were at

21 least 16 rather than 18) who had been convicted of two prior violent

22 felonies or drug trafficking felonies. That amendment would have

23 included in the sentencing statute a section stating expressly that

24 "[a] career criminal" "shall receive the maximum," or approximately

25 the maximum, penalty for the current offense. 128 Cong. Rec. 26512,

- 25 -
 1 26518 (Sept. 30, 1982) (emphasis added).

2 No such provision was included in the legislation as

3 enacted. Instead, the Act included § 994(h). The Report of the

4 Senate Judiciary Committee, see S. Rep. No. 98-225 (1983) ("Senate

5 Report" or "Report"), reprinted in 1984 U.S. Code Cong. & Admin.

6 News ("USCCAN") 3182, stated that the

7 proposed 28 U.S.C. 994(h) requires the sentencing
8 guidelines to specify a term of imprisonment at or
9 near the statutory maximum for a third conviction of
10 a felony that involves a crime of violence or drug
11 trafficking,

12 Senate Report at 120, reprinted in 1984 USCCAN at 3303, and

13 explained that

14 [s]ubsection (h) was added to the bill in the
15 98th Congress to replace a provision proposed by
16 Senator Kennedy enacted in S. 2572, as part of
17 proposed 18 U.S.C. 3581, that would have mandated a
18 sentencing judge to impose a sentence at or near the
19 statutory maximum for repeat violent offenders and
20 repeat drug offenders. The Committee believes that
21 such a directive to the Sentencing Commission will
22 be more effective; the guidelines development
23 process can assure consistent and rational
24 implementation of the Committee's view that
25 substantial prison terms should be imposed on repeat
26 violent offenders and repeat drug traffickers.

27 Senate Report at 175, reprinted in 1984 USCCAN at 3358 (emphases

28 added). The Report stated that "the guidelines would reserve the

29 upper range of the maximum sentence for offenders who repeatedly

30 commit offenses," and that "the Sentencing Commission will be

31 promulgating guidelines that will recommend an appropriate sentence

32 for a particular category of offender who is convicted of a

33 particular category of offense . . . ." Senate Report at 114,

- 26 -
 1 reprinted in 1984 USCCAN at 3297 (emphasis added).

2 Consistent with Congress's reference to "the guidelines

3 development process," Senate Report at 175, reprinted in 1984 USCCAN

4 at 3358, the commentary to the Guidelines notes that the Sentencing

5 Commission's views of what is an appropriate prison term for a

6 career offender are subject to revision "over time":

7 [T]he Commission has modified th[e] definition [of
8 career offender] in several respects to focus more
9 precisely on the class of recidivist offenders for
10 whom a lengthy term of imprisonment is appropriate
11 and to avoid "unwarranted sentencing disparities
12 among defendants with similar records who have been
13 found guilty of similar criminal conduct . . . ."
14 28 U.S.C. § 991(b)(1)(B). The Commission's
15 refinement of this definition over time is
16 consistent with Congress's choice of a directive to
17 the Commission rather than a mandatory minimum
18 sentencing statute . . . .

19 Guidelines § 4B1.1 Background (emphasis added).

20 In sum, in light of the facts (1) that § 994(h)'s

21 instruction with reference to sentences at or near the statutory

22 maximum is directed to the Sentencing Commission, (2) that there is

23 no statutory provision instructing the courts to sentence a career

24 offender at or near the maximum, and (3) that Congress consciously

25 rejected a proposal "that would have mandated a sentencing judge" to

26 impose such a sentence, Senate Report at 175, reprinted in 1984

27 USCCAN at 3358, and instead instructed the Commission to promulgate

28 guidelines to "recommend" high sentences for career offenders, id.

29 at 114, reprinted in 1984 USCCAN at 3297, we conclude that Congress

30 did not intend § 994(h) to deprive the courts of authority to impose

- 27 -
 1 on a career offender a prison term that is not near the statutory

2 maximum.

3 This conclusion does not mean that we think a sentencing

4 court would be free to ignore the policy considerations reflected in

5 § 994(h). The court should, as discussed in Part II.C.3. below,

6 take Congress's views on repeat offenders into account in

7 determining the appropriate sentence in light of the sentencing

8 considerations set out in 18 U.S.C. § 3553(a).

9 C. The Effect of § 994(h) in the Present Case

10 On these appeals, the government, while describing

11 § 994(h) as "a provision that calls for career offenders to be

12 sentenced at or near the statutory maximum" (Government brief on

13 appeal at 31 (emphasis added)), has stopped short of arguing that

14 § 994(h) deprived the district court of authority to sentence a

15 career offender to a prison term below such a level. Instead, the

16 government contends that the district court did not misapprehend its

17 sentencing authority, pointing out that in sentencing the then-

18 33-year-old Sanchez to 188 months and the then-34-year-old Keys to

19 235 months, the district court sentenced those two defendants "far

20 below the statutory maximum" (Government brief on appeal at 31

21 (emphasis added)), to terms that were closer to the statutory

22 minimum of 120 months than to the maximum of life (see, e.g., id. at

23 41). It also points out that the court in fact sentenced Raymond

24 Fox to the statutory minimum (see id. at 41)--a sentence that the

- 28 -
 1 government has not cross-appealed to challenge. The government

2 argues instead that, notwithstanding several of the court's

3 statements with respect to § 994(h), the court "clearly understood

4 its authority to impose the sentence that it deemed correct, in

5 light of all of the pertinent considerations" (id. at 45 n.*).

6 In general, we are "entitled to assume that the sentencing

7 judge understood all the available sentencing options, including

8 whatever departure authority existed in the circumstances of the

9 case." Rivers, 50 F.3d at 1131. However, we are wary of making

10 such an assumption "where the judge's sentencing remarks create

11 ambiguity as to whether the judge correctly understood an available

12 [sentencing] option," and we are more inclined, in the face of such

13 ambiguity, to remand for clarification. Id. at 1132; see, e.g.,

14 United States v. Clark, 128 F.3d 122, 124 (2d Cir. 1997). We would

15 not remand, however, if the record indicated clearly that the

16 district court would have imposed the same sentence had it had an

17 accurate understanding of its authority. See, e.g., United States

18 v. McHugh, 122 F.3d 153, 158 (2d Cir. 1997); id. at 159 (Newman, J.,

19 concurring); United States v. Larson, 112 F.3d 600, 606 (2d Cir.

20 1997); see generally Williams v. United States, 503 U.S. 193, 203

21 (1992); Fed R. Crim. P. 52(a) (an error or irregularity that does

22 not affect a party's substantial rights "must be disregarded").

23 In the present case, the record does not indicate that the

24 court understood, at the time it sentenced Sanchez and Keys, that

25 § 994(h) did not necessarily restrict its sentencing authority and

- 29 -
 1 does not make it clear that the court would have imposed the same

2 sentences if that section did not impose such a restriction.

3 1. Sanchez

4 Notwithstanding the fact that the district court sentenced

5 Sanchez to 188 months, well below the 262-327-month range

6 recommended by the advisory Guidelines, the transcript of his

7 sentencing leaves the strong impression that the district court

8 viewed § 994(h) as depriving it of authority to impose on Sanchez a

9 non-Guidelines sentence or a Guidelines-departure sentence at, or

10 near, the statutory minimum. As set out in greater detail in Part

11 I.B.2. above, the court's early comments addressing Sanchez's

12 departure request indicated its view that Sanchez "could be deterred

13 by even the mandatory minimum of ten years, which is a very

14 substantial number" (Sanchez S.Tr. 16); but the court stated that it

15 interpreted "Congress [as] enacting a statute . . . that provides

16 that a career criminal must be sentenced above the mandatory

17 minimum." (Id. at 17 (emphases added)). The court indicated that

18 it read § 994(h) as a mandatory provision, referring to it as "a

19 congressional enactment which directs." (Id. at 18.) The court

20 went on to say, inter alia, that "Congress has provided that a

21 career offender . . . must be sentenced above the mandatory minimum"

22 (id. (emphasis added)); that "as I read the congressional statute a

23 career criminal may not be sentenced to the minimum" (id. at 19

24 (emphases added)); that it interpreted "at or near the maximum" to

- 30 -
 1 mean "that Congress has provided that . . . career offender [status]

2 requires some time in addition to the mandatory minimum" (id. at 21-

3 22 (emphases added)); and that it felt that as a matter of law,

4 under § 994, it could not under any circumstances impose a sentence

5 that was the mandatory minimum for a career offender: "I feel bound

6 by the statute itself . . . . not to reduce a career criminal

7 sentence to the level of a mandatory minimum" (id. at 20 (emphases

8 added)).

9 To be sure, as the government notes, the district court

10 stated at one point that "in this particular case I am of the view

11 that even if I could I would not impose a sentence less than I have

12 determined" (id. at 21 (emphases added)); and thereafter the court

13 stated that it believed the prison term it was ordering for Sanchez

14 was "an appropriate sentence for this defendant" (id. at 24).

15 However, shortly before characterizing a 188-month prison term for

16 Sanchez as appropriate, the court had said "[i]f I were free to

17 choose the sentence we would be in an entirely different situation"

18 (id. at 23); and immediately after characterizing the 188-month

19 sentence as appropriate, the court added, "[b]ut I do feel

20 constrained by the statute. I think that is pretty clear" (id. at

21 24 (emphasis added)). Finally, when Sanchez's attorney said "I

22 think you have made it perfectly clear that if you could you might

23 impose a lesser sentence," the court said "[t]hat is correct." (Id.

24 at 24-25 (emphasis added).)

25 The record thus seems clear that the district court

- 31 -
 1 believed that § 994(h) deprived it of authority to grant Sanchez a

2 non-Guidelines sentence or a downward departure below the 188-month

3 prison term that the court imposed. And as to whether the same

4 sentence would have been imposed if the court had believed that

5 § 994 did not deprive it of that authority, the court's statements--

6 e.g., that it would not have imposed a lower sentence on Sanchez

7 "even if [it] could," and that it might impose a lower sentence "if

8 [it] could"--reflect considerable ambiguity.

9 In these circumstances, we consider it appropriate to

10 remand the Sanchez matter to the district court for clarification.

11 See Part II.C.3. below.

12 2. Keys

13 The transcript of Keys's sentencing to a 235-month prison

14 term, although it contains fewer conflicting statements, similarly

15 leaves us in doubt as to whether the district court meant that even

16 if § 994(h) did not limit its sentencing authority, Keys would still

17 have received a 235-month prison term. At the sentencing of Keys,

18 one day before the sentencing of Sanchez, the statements of the

19 district court reflected the court's understanding--and apparently

20 the then-understanding of the government--that § 994 required that

21 a career offender receive a prison term at or near the statutory

22 maximum. Thus, early in the discussion of Keys's request for a

23 departure to the statutory minimum, the court stated, "I think

24 because of the career offender statute," the prison term to be

- 32 -
 1 imposed on Keys "will certainly have to be more than" the statutory

2 "minimum of ten years." (Keys S.Tr. 14.) And when the court stated

3 that § 994(h) required that the prison term for a career offender be

4 "more than above the minimum," the AUSA added, "[n]ear the maximum."

5 (Id. at 18 (emphases added).) The court stated that "[t]he

6 statutory language makes clear" that Keys, as a career offender,

7 "will go to prison for more than the mandatory minimum, under all

8 circumstances that I can see here; that is, I have carefully

9 considered enough to know that. How much more is really my

10 problem." (Id. at 18-19.)

11 After determining that if it assigned Keys a CHC of V

12 rather than VI the Guidelines-recommended range of imprisonment

13 would be 235-293 months, the court said, "I think that in this case

14 235 is the appropriate number" (id. at 32 (emphasis added)). But

15 when Keys's attorney argued that 235 months was "still an

16 overstatement" (id.), the court stated that the "real problem" was

17 that "[t]he career offender statute I read as itself placing a

18 substantial limit on the appropriate sentence under that statute"

19 (id. at 35 (emphasis added)). After sentencing Keys to 235 months,

20 the court stated:

21 It is really under the statute on career offender[s]
22 that I feel bound to carry out the intention of
23 Congress as expressed in that statute, to impose a
24 substantially heavier sentence on a career offender,
25 and I do so with that understanding. . . . I have
26 studied that statute over and over in an effort to
27 discern the intention of Congress, and that is the
28 best I can do in this case.

- 33 -
 1 (Id. at 47-48 (emphases added).)

2 It appears from the above statements that the district

3 court may have believed that § 994(h) limited its authority to

4 impose a sentence below 235 months' imprisonment; and although the

5 court had carefully considered the circumstances relating to Keys,

6 it is unclear to us whether the court's statements meant that the

7 court would have sentenced Keys to the same prison term in the

8 absence of the perceived limitation. In all the circumstances,

9 including the court's statements that "235 is the appropriate

10 number" (Keys S.Tr. 32), but that it read the "career offender

11 statute . . . as itself placing a substantial limit on the

12 appropriate sentence" (id. at 35), as well as the government's own

13 stance at the Keys hearing that § 994(h) required Keys to be

14 sentenced "[n]ear the maximum" (id. at 18), we conclude that a

15 remand for clarification with respect to Keys is prudent as well.

16 We note that the district court sentenced Raymond Fox to

17 the statutory minimum prison term applicable to him, i.e., 240

18 months, and the government would have us infer from that fact that

19 the court was aware that § 994(h) did not require it to sentence

20 Sanchez and Keys above the 120-month mandatory minimum that was

21 applicable to them (Government brief on appeal at 41). Such an

22 inference is impermissible in light of the court's statements some

23 five weeks earlier in the course of sentencing Sanchez and Keys.

24 3. Proceedings on Remand

- 34 -
 1 Our holding that § 994(h) does not make it mandatory for

2 a sentencing court to sentence a career offender to a prison term at

3 or near the statutory maximum does not, of course, mean that the

4 court would be free to ignore the Congressional policy reflected in

5 that section. "We may find a sentence unreasonable if the district

6 court ignores congressional policies or if it fails to give

7 'respectful consideration to the Guidelines,'" Kimbrough v. United

8 States, 128 S. Ct. 558, 570 (2007).

9 As the district court in this case observed, § 994(h)

10 reflects Congress's policy judgment that violent felonies and drug

11 trafficking felonies generally warrant more severe sentences when

12 committed by recidivists than when committed by first- or second-

13 time offenders. See also Mistretta v. United States, 488 U.S. 361,

14 376 n.10 (1989) (the legislative "history indicates Congress' intent

15 that the 'criminal history . . . factor include[] . . . whether the

16 defendant is a "career criminal."'" (quoting Senate Report at 174,

17 reprinted in 1984 USCCAN at 3357). That Congressional policy

18 judgment, and the resulting definition of career offenders, must be

19 taken into account in connection with several of the sentencing

20 factors set out in 18 U.S.C. § 3553(a).

21 Section 3553(a) requires that the history and

22 characteristics of the defendant be considered. But it also

23 requires, as discussed in Part II.A. above, that the court consider

24 the range of imprisonment recommended by the advisory Guidelines,

25 including the "applicable category of offense committed by the

- 35 -
 1 applicable category of defendant," 18 U.S.C. § 3553(a)(4)(A). As

2 the career-offender guideline, § 4B1.1, reflects the instructions

3 given to the Commission in 28 U.S.C. § 994(h) to assure that the

4 Guidelines prescribe severe penalties for career offenders, the

5 court is required--whether it decides to impose a Guidelines or a

6 non-Guidelines sentence--to consider the recommended penalties.

7 In addition, as pointed out in the Sentencing Commission's

8 introductory comments to Chapter Four of the Guidelines, which

9 includes the career-offender guideline, "[a] defendant's record of

10 past criminal conduct is directly relevant" to several of the

11 purposes of sentencing set out in § 3553(a)(2), including just

12 punishment, deterrence, and protection of the public from further

13 crimes of the defendant:

14 A defendant with a record of prior criminal behavior
15 is more culpable than a first offender and thus
16 deserving of greater punishment. General deterrence
17 of criminal conduct dictates that a clear message be
18 sent to society that repeated criminal behavior will
19 aggravate the need for punishment with each
20 recurrence. To protect the public from further
21 crimes of the particular defendant, the likelihood
22 of recidivism and future criminal behavior must be
23 considered. Repeated criminal behavior is an
24 indicator of a limited likelihood of successful
25 rehabilitation.

26 Guidelines Ch. 4, Pt. A, Introductory Commentary. At the same time,

27 as the district court here noted, the sentencing court must consider

28 other factors set out in § 3553(a), including the need for the

29 sentence imposed "to avoid unwarranted sentence disparities among

30 defendants with similar records who have been found guilty of

- 36 -
 1 similar conduct," 18 U.S.C. § 3553(a)(6).

2 In sum, the policy concerns reflected in § 994(h) are

3 relevant to several of the sentencing factors that the court must

4 consider in complying with § 3553(a). Although Congress declined to

5 adopt a statutory provision making it mandatory for the courts to

6 sentence career offenders at or near the statutory maximum, it

7 enacted § 994(h) to require the Commission to recommend such

8 sentences for that category of defendants, and that guidance, as

9 part of the § 3553(a) analysis, must be taken into account.

10 In the present case, of course, as described in Parts

11 I.B.1. and I.B.2. above, there was no failure by the district court

12 to consider the Congressional policy, and the court took great pains

13 not to substitute its judgment for that of Congress. The difficulty

14 we have on these appeals is that, as discussed in Parts II.C.1. and

15 II.C.2. above, in sentencing Sanchez and Keys the court made

16 statements indicating its belief that § 994(h) restrained it from

17 imposing shorter sentences than it did and also stated at times that

18 the sentences imposed were appropriate. The record thus leaves us

19 uncertain as to whether the district court meant that the sentences

20 imposed on these defendants were appropriate within the perceived

21 restraint of § 994(h) or were the same sentences that would have

22 been imposed if § 994(h) did not deprive it of the authority to

23 impose lower sentences. Accordingly, without vacating the sentences

24 imposed on Sanchez and Keys, we remand as to those two defendants in

25 order to permit the district court to clarify the record as to the

- 37 -
 1 meaning of its statements.

2 On remand, the district court's first step should be to

3 provide the necessary clarifications. This may be done either by

4 filing brief written statements or placing explanations on the

5 record. See, e.g., Rivers 50 F.3d at 1132. The defendant's

6 presence is not required for the initial step at which the court

7 issues its clarification. See generally id.; Crosby 397 F.3d at

8 120.

9 If, as to either defendant, the clarification reveals that

10 the court meant that it would have imposed the same sentence if it

11 understood that § 994(h) did not deprive it of the authority to

12 impose a shorter prison term than it did, then as to that defendant,

13 the district court should not disturb the sentence imposed, and--

14 except as indicated in Part II.E. below--it need take no further

15 action. See, e.g., Crosby, 397 F.3d at 120, Clark, 128 F.3d at 124;

16 Rivers, 50 F.3d at 1132.

17 If as to either Sanchez or Keys the court clarifies that

18 its determination of the prison term imposed on that defendant was

19 affected by its view that § 994(h) deprived it of the authority to

20 impose a lower sentence, the court should exercise its discretion to

21 consider a lower sentence, either as a Guidelines departure or as a

22 non-Guidelines sentence. In this event, the court should vacate the

23 sentence and, with the relevant defendant present, resentence the

24 defendant in accordance with § 3553 and this opinion, giving an

25 appropriate explanation of its decision.

- 38 -
 1 Because a remand is warranted for clarification of whether

2 the district court meant that it would have imposed the same

3 sentences with the correct understanding of § 994(h), we have no

4 occasion to consider at this time Keys's additional contentions that

5 the district court failed to consider the § 3553(a) factors and

6 that his sentence is unreasonably long. See, e.g., United States v.

7 Ortega, 94 F.3d 764, 771 (2d Cir. 1996).

8 D. Raymond Fox's Constitutional Contentions

9 In general, the term of imprisonment for a person

10 convicted of violating 21 U.S.C. § 841(a)(1) by trafficking in the

11 quantities of cocaine and crack charged in the present case is "not

12 [to] be less than 10 years or more than life." 21 U.S.C.

13 § 841(b)(1)(A). Longer minimum prison terms are provided if there

14 are aggravating circumstances. To the extent pertinent here, that

15 penalty section provides that "[i]f any person commits such a

16 violation after a prior conviction for a felony drug offense has

17 become final, such person shall be sentenced to a term of

18 imprisonment which may not be less than 20 years and not more than

19 life imprisonment . . . ." Id. (emphasis added). Section 851 of

20 Title 21 provides, in pertinent part, that

21 [n]o person who stands convicted of an offense under
22 this part shall be sentenced to increased punishment
23 by reason of one or more prior convictions, unless
24 before trial, or before entry of a plea of guilty,
25 the United States attorney files an information with
26 the court (and serves a copy of such information on
27 the person or counsel for the person) stating in

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 1 writing the previous convictions to be relied upon.

2 Id. § 851(a)(1). As indicated in Parts I.A. and I.B.3. above, the

3 government filed a § 851 Information against Raymond Fox prior to

4 the entry of his plea of guilty; and after accepting that plea, the

5 district court imposed on him the statutory minimum prison term of

6 20 years.

7 Raymond challenges the constitutionality of § 851 and of

8 its application to him. He contends that in allowing a United

9 States Attorney, in his sole discretion, to file an information that

10 substantially raises the minimum mandatory term of imprisonment to

11 which a defendant is exposed, § 851 impermissibly transfers power

12 over sentencing from the Judicial Branch to the Executive Branch.

13 In any event, he contends that the government, in filing a § 851

14 Information only against him and not against any of his codefendants

15 without any explanation, violated his right to due process. Neither

16 contention has merit.

17 1. The Alleged Transfer of Power

18 Historically, federal sentencing--the function of
19 determining the scope and extent of punishment--
20 never has been thought to be assigned by the
21 Constitution to the exclusive jurisdiction of any
22 one of the three Branches of Government.

23 Mistretta, 488 U.S. at 364. It "long has been a peculiarly shared

24 responsibility among the Branches of Government and has never been

25 thought of as the exclusive constitutional province of any one

26 Branch." Id. at 390; see also United States v. Huerta, 878 F.2d 89,

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 1 91 (2d Cir. 1989), cert. denied, 493 U.S. 1046 (1990).

2 "It is well established that the decision as to what

3 federal charges to bring against any given suspect is within the

4 province of the Executive Branch of the government." United States

5 v. Bonnet-Grullon, 212 F.3d 692, 701 (2d Cir.), cert. denied, 531

6 U.S. 911 (2000).

7 The Attorney General and United States Attorneys
8 retain "'broad discretion'" to enforce the Nation's
9 criminal laws. Wayte v. United States, 470 U.S.
10 598, 607 (1985) (quoting United States v. Goodwin,
11 457 U.S. 368, 380, n. 11 (1982)). They have this
12 latitude because they are designated by statute as
13 the President's delegates to help him discharge his
14 constitutional responsibility to "take Care that the
15 Laws be faithfully executed." U.S. Const., Art. II,
16 § 3; see 28 U.S.C. §§ 516, 547.

17 United States v. Armstrong, 517 U.S. 456, 464 (1996). The Executive

18 Branch thus has the exclusive authority not only to decide whether

19 to prosecute, but also to decide which of alternative statutory

20 sections, which may carry penalties of varying severity, the

21 defendant will be charged with violating. See, e.g., United States

22 v. Bonnet-Grullon, 212 F.3d at 701; United States v. Huerta, 878

23 F.2d at 92.

24 Section 851 is a provision that requires, if the United

25 States Attorney intends to seek enhanced penalties based on the

26 defendant's prior criminal record, that prior to the start of trial

27 or the entry of a plea of guilty, the defendant be given notice of

28 that intent. The fact that it is the prosecutor who decides whether

29 to give such notice is simply a facet of the above prosecutorial

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 1 authority:

2 Insofar as prosecutors, as a practical matter, may
3 be able to determine whether a particular defendant
4 will be subject to the enhanced statutory maximum,
5 any such discretion would be similar to the
6 discretion a prosecutor exercises when he decides
7 what, if any, charges to bring against a criminal
8 suspect. Such discretion is an integral feature of
9 the criminal justice system, and is appropriate, so
10 long as it is not based upon improper factors. See
11 United States v. Armstrong, 517 U.S. 456, 464-465
12 (1996); Wayte v. United States, 470 U.S. 598, 607
13 (1985). Any disparity in the maximum statutory
14 penalties between defendants who do and those who do
15 not receive the notice is a foreseeable--but hardly
16 improper--consequence of the statutory notice
17 requirement.

18 LaBonte, 520 U.S. at 762. Although this discretion gives

19 prosecutors some degree of control over a defendant's ultimate

20 sentence, it does not violate the principle of separation of powers.

21 2. The Alleged Violation of Due Process

22 Raymond also contends that the government's filing of the

23 § 851 Information against him violated his right to due process

24 because the government gave no explanation for filing such an

25 information against him but against none of his codefendants. Given

26 that Raymond has offered no basis for suspecting that the government

27 had any improper motive, we reject this argument as well.

28 Prosecutorial discretion "is, of course, subject to

29 constitutional constraints," United States v. Batchelder, 442 U.S.

30 114, 125 (1979); the decision whether to prosecute may not be based

31 on "an unjustifiable standard such as race, religion, or other

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 1 arbitrary classification," Oyler v. Boles, 368 U.S. 448, 456 (1962);

2 see also Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). However,

3 because the United States Attorneys are charged with taking care

4 that the laws are faithfully executed, there is a "presumption of

5 regularity support[ing] their prosecutorial decisions and, in the

6 absence of clear evidence to the contrary, courts presume that they

7 have properly discharged their official duties." Armstrong, 517

8 U.S. at 464 (internal quotation marks omitted); see also Oyler, 368

9 U.S. at 456 (Mere "conscious exercise of some selectivity in

10 enforcement is not in itself a federal constitutional violation.").

11 Generalized allegations of improper motive do not disturb

12 the presumption of regularity. To warrant discovery into the

13 government's reasons for pressing a charge against one person rather

14 than another, a defendant must present at least "some evidence" to

15 show not only that he was singled out but also that he was singled

16 out for reasons that are "invidious or in bad faith." United States

17 v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974) (internal quotation

18 marks omitted); cf. Wade v. United States, 504 U.S. 181, 186 (1992)

19 ("generalized allegations of improper motive" for government's

20 failure to move for a downward departure rewarding a defendant's

21 substantial assistance to the government do not entitle a defendant

22 to a remedy, discovery, or an evidentiary hearing).

23 In the present case, Raymond has made no allegations of

24 impropriety. He simply complains that the government gave no

25 explanation for filing the § 851 Information against him. Given the

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 1 presumption of regularity and the absence of any proffer by Raymond

2 as to a motive that might have been improper, no explanation by the

3 government was required.

4 E. Clerical Corrections to Three of the Judgments

5 Finally, we note that the written judgments against

6 Sanchez, Keys, and Daryl Fox, all dated July 5, 2005, are not wholly

7 accurate in reflecting those defendants' offenses of conviction.

8 With respect to Sanchez, whose plea of guilty was limited (and

9 accepted as limited) to so much of counts one and two as alleged

10 trafficking in cocaine but not in cocaine base, the judgment

11 misdescribes his offense of conviction on count one as "Conspiracy

12 to Distribute and Possess with Intent to Distribute and [sic]

13 Cocaine Base." As to Keys and Daryl Fox, whose pleas of guilty did

14 not exclude cocaine base (indeed, at the sentencing stage, Daryl

15 stated that he "wanted to get the crack cocaine stricken from [his

16 plea of guilty]"), the judgments describe their offenses of

17 conviction on count two as "Distribution and Possession with Intent

18 to Distribute Cocaine," but omit mention of cocaine base. Amended

19 judgments should be entered in the district court, correctly

20 identifying the offenses of conviction.

21 CONCLUSION

22 For the reasons stated above, and subject to the required

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 1 clerical corrections noted above, the appeal of Daryl Fox is

2 dismissed pursuant to Anders v. California; the Sanchez and Keys

3 matters are remanded to the district court for clarification, and,

4 if necessary, for further proceedings; and the judgment against

5 Raymond Fox is affirmed.

6 Following the proceedings described in Part II.C.3. of

7 this opinion and the entry of final decisions by the district court,

8 the jurisdiction of this Court to consider a subsequent appeal may

9 be invoked by any affected party by notification to the Clerk within

10 10 days of the pertinent final decision, see United States v.

11 Jacobson, 15 F.3d 19 (2d Cir. 1994), in which event the renewed

12 appeal will be assigned to this panel.

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