United States Court of Appeals,
Eleventh Circuit.
No. 95-4425
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Rudolph McFARLANE, Defendant-Appellant.
March 8, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-512-CR-UUB), Ursula Ungaro-Benages,
Judge.
Before KRAVITCH, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
In this appeal, Rudolph McFarlane argues that the district
court erroneously denied his request for a two-level downward
departure from the otherwise applicable Sentencing Guideline range.
Normally, a defendant cannot appeal a district court's failure to
grant a downward departure. Where, as here, a defendant argues
that the district court believed it did not have discretion to
grant such a departure, however, we may consider the appeal.
United States v. Fossett, 881 F.2d 976, 979 (11th Cir.1989).
McFarlane's counts of conviction contained a statutory
mandatory minimum sentence of 60 months. The district court,
however, imposed a sentence of 57 months (the low end of the
Guideline range), three months below the mandatory minimum through
application of U.S.S.G. § 5C1.2, a Guideline section reflecting
congressional legislation set forth at 18 U.S.C. § 3553(f).
Section 5C1.2 allows courts to sentence those defendants who meet
certain criteria without regard for any statutory minimum sentence.
It is not disputed that McFarlane met the criteria set forth in §
5C1.2.
McFarlane argues that the district court erroneously concluded
that it did not have authority to sentence him below the Guideline
range after applying § 5C1.2. McFarlane contends that because a
straightforward application of § 5C1.2 has little effect on his
sentence (reducing it by only three months), the legislative intent
of 18 U.S.C. § 3553(f) is not reflected in his resulting sentence
and the statute is rendered meaningless in his case. Specifically,
McFarlane argues that in passing the part of the 1994 Violent Crime
Control and Law Enforcement Act, which is codified at 18 U.S.C. §
3553(f), Congress intended courts to give those first-time
offenders who meet the statutory criteria a two-level reduction in
their Guideline offense levels.
In support of this argument McFarlane notes that after the
incorporation of § 5C1.2, the Guideline Commission proposed an
amendment to the Guidelines now in existence at § 2D1.1(b)(4). The
amendment directs sentencing courts to decrease a defendant's
offense level by two if a defendant meets the criteria listed in §
5C1.2 and has an offense level of 26 or greater. McFarlane argues
that the Commission's proposal supports his contention that
Congress intended courts to give offenders a two-level reduction in
their Guideline offense levels.1
1
McFarlane notes that in United States v. Smith, 51 F.3d 980
(11th Cir.1995), this court held that proposed amendments to
Sentencing Guidelines could be considered subsequent legislative
history in the analysis of prior Application Notes. Thus, this
court, according to McFarlane, should consider § 2D1.1(b) as
McFarlane's argument lacks merit. Nothing in the text of 18
U.S.C. § 3553(f) indicates that Congress intended a two-level
decrease for any defendants who meet the statutory criteria, even
for those who might benefit only marginally from the Act. The
intent, clear from the face of the Act, is to provide a "safety
valve" so that less culpable offenders are not subject to mandatory
minimums. The statute does not indicate, in any way, that Congress
sought to prescribe departures below or decreases in the otherwise
applicable Guideline offense levels.2 The Commission's decision to
propose what is now § 2D1.1(b)(4), which provides for a two-level
decrease in offense levels for certain defendants, does not speak
to the congressional intent behind § 5C1.2. Rather, it indicates
only that the Commission has discretion to propose changes to the
guidelines when it sees fit and where statutory limits allow.
McFarlane further argues that a discretionary downward
departure would be available in this case pursuant to § 5K2.0,
subsequent legislative history with respect to § 5C1.2. Smith
does not apply here; Smith involved a case where a proposed
amendment was an attempt to clarify an earlier portion of the
Guidelines. Section 2D1.1(b) does not purport to clarify §
5C1.2; rather, it adds an entirely new substantive provision to
the Guidelines.
2
The text of the Act reads in pertinent part as follows:
Limitation on applicability of statutory minimums in certain
cases.—Notwithstanding any other provision of law, in the
case of an offense under Section 401, 404, or 406 of the
Controlled Substances Act (21 U.S.C. 841, 844, 846) or
section 1010 or 1013 of the Controlled Substances Import and
Export Act ... the court shall impose a sentence pursuant to
guidelines promulgated by the United States Sentencing
Commission under section 994 of title 28 without regard to
any statutory minimum sentence....
18 U.S.C. § 3553(f) (emphasis added).
which authorizes downward departures for mitigating circumstances
of a kind or to a degree not adequately taken into account by the
Commission in formulating the Guidelines. He specifically claims
that a discretionary departure would be justified in this case due
to the Commission's failure to reflect congressional intent to
provide for a two-level reduction for first-time offenders whose
offense level was 26 or greater. As noted above nothing on the
face of the statute indicates such congressional intent. Thus, the
basis for a discretionary downward departure offered by McFarlane
was not available to the district court.
The government acknowledges that were the Sentencing
Commission to make § 2D1.1(b)(4) retroactive, McFarlane could seek
to be resentenced pursuant to the new Guideline. The Commission
did not make the amendment retroactive, as indicated by the
amendment's absence from § 1B1.10's retroactivity provision.
For the foregoing reasons, McFarlane's sentence is AFFIRMED.3
3
Appellant's request for oral argument is denied.