___________
Nos. 95-2264/2374
___________
United States of America, *
*
Cross-Appellant/Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Ivy Nelson Fountain, *
*
Appellant/Cross-Appellee. *
___________
Submitted: December 15, 1995
Filed: May 1, 1996
___________
Before McMILLIAN and BEAM, Circuit Judges, and PERRY, District Judge.*
___________
BEAM, Circuit Judge.
Ivy Nelson Fountain appeals his conviction for two counts of
knowingly distributing cocaine base within 1000 feet of a school in
violation of 21 U.S.C. §§ 841(a)(1) and 860(a). The government cross
appeals Fountain's sentence, challenging the district court's application
of Amendment 506 to the United States Sentencing Guidelines (USSG or
Guidelines) section 4B1.1 in connection with Fountain's sentencing as a
"career offender." The government contends that the Sentencing Commission
exceeded its authority in enacting the amendment which now defines the
phrase "Offense Statutory Maximum." The government claims the amendment
conflicts with the statutory mandate of 28 U.S.C. § 994(h). We affirm the
conviction but vacate the sentence and remand for resentencing.
*The HONORABLE CATHERINE D. PERRY, United States District
Judge for the Eastern District of Missouri, sitting by
designation.
I. BACKGROUND
Fountain was charged with two counts of distribution of cocaine base
within 1000 feet of a school. He entered a plea of not guilty to the
charges and the action proceeded to trial. The government's proof at trial
consisted largely of an informant's testimony and of recorded conversations
between Fountain and the informant. The evidence showed Fountain sold five
grams of cocaine base. The jury returned a verdict of guilty.
Over Fountain's objection, the government sought an enhanced
1
statutory penalty based on Fountain's criminal record. The government
contended, however, that a recent amendment to the Sentencing Guidelines
should not be applied to calculate Fountain's career offender sentence
because the Sentencing Commission had exceeded its authority in enacting
the amendment.
Section 4B1.1 of the Guidelines provides a method for determining the
guideline sentencing range for career offenders. The sentencing range
under section 4B1.1 is calculated with reference to a table that provides
an offense level for a given
1
Fountain's prior record includes charges of: theft of
clothing from Montgomery Ward in 1979; theft of a straw hat worth
$1.59 from a convenience store in 1979; bribery of a police officer
with $35.00 to drop the straw hat charge in 1979; burglary of a
garage, discussed infra at 6-7, in 1980; robbery in 1983;
possession of cocaine with intent to deliver in 1988; fourth degree
theft in 1989; no trout stamp in 1989; driving with a suspended
license in 1989; driving without a license in 1989; domestic abuse
in 1990; operating a motor vehicle while intoxicated in 1990; fifth
degree theft (failure to pay a $99.00 hotel bill) in 1992;
possession of marijuana in 1992; driving with a suspended license
in 1993; simple assault in 1993 (aiming a starter pistol at
victim's head); and assault with injury in 1993 (traffic
altercation--charge later dismissed).
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"Offense Statutory Maximum."2 The "Offense Statutory Maximum" is
determined by the statute under which a defendant is convicted. For
example, in this case, Fountain was convicted under 21 U.S.C. § 841 which
provides a statutory sentencing range of five to forty years for
distribution of five or more grams of cocaine base and ten years to life
for repeat offenders. 21 U.S.C. §§ 841(a) & 841(b)(1)(B). Therefore,
section 841 provides two "Offense Statutory Maximum" sentences--forty years
for distribution and life for repeat offenders. In other words, there is
a recidivist enhancement built into section 841.
A recent amendment to the Guidelines commentary states that "Offense
Statutory Maximum" in section 4B1.1 means only the unenhanced maximum
term.3 The government contends that the Sentencing Commission is without
power to enact the provision because it conflicts with the statutory
mandate presented in 28 U.S.C. § 994(h), the Guidelines enabling statute.4
The issue presented here is whether to use the five-to-forty-years figure
(unenhanced) or the ten-years-to-life figure (enhanced) in section
2
USSG § 4B1.1 provides: [table]
Offense Statutory Maximum Offense Level
(A) Life 37
(B) 25 years or more 34
(C) 20 to 25 years 32
(D) 15 to 20 years 29
3
The amendment states: "`Offense Statutory Maximum,' for the
purposes of this guideline, refers to the maximum term of
imprisonment authorized for the offense of conviction . . . not
including any increase in that maximum term under a sentencing
enhancement provision that applies because of the defendant's prior
criminal record." USSG § 4B1.1 comment. (n.2) (Nov. 1995).
4
Congress directs the Sentencing Commission to assure that the
Guidelines specify a term of imprisonment "at or near the maximum
term authorized" for an adult defendant convicted of a violent
crime or felony drug offense who has at least two prior such
convictions. 28 U.S.C. section 994(h).
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841 as the "Offense Statutory Maximum." Use of the unenhanced figure
results in a sentencing level of 34 (with a sentencing range of 262 to 327
months) whereas use of the enhanced figure results in a sentencing level
of 37 (with a sentencing range of 360 months to life). In practical terms,
the difference is an increase in Fountain's sentence of more than eight
years.
The district court found that Fountain had the requisite predicate
offenses and sentenced him as a repeat offender, but rejected the
government's contention that the enhanced figure should be used as
Fountain's "Offense Statutory Maximum." United States v. Fountain, 885 F.
Supp. 185 (N.D. Iowa 1995). Accordingly, the district court used the
forty-year figure. Fountain was sentenced to two concurrent terms of 262
months (21 years and eight months) (base offense level 34, criminal history
category VI).
On appeal, Fountain contends that: (1) the district court erred in
admission of the recorded conversations; (2) the Government committed a
Brady violation; and (3) he should not have been sentenced as a career
offender. On cross appeal, the government challenges the district court's
application of the recent amendment, contending that Fountain should have
been sentenced under the higher, enhanced "Offense Statutory Maximum."
II. DISCUSSION
A. Admission of Tape Recordings
Fountain first argues that the trial court erred when it admitted
transcripts of taped conversations. He contends that the recordings were
incomplete and inaudible. A district court has broad discretion in ruling
on the admissibility of proffered evidence. Dillon v. Nissan Motor Co.,
986 F.2d 263, 270 (8th Cir. 1993). Accordingly, we will not disturb a
district court's
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evidentiary ruling absent a clear and prejudicial abuse of that discretion.
Id. We have reviewed the transcript and find adequate foundation for
admission of the tapes.
B. Brady Violation
Fountain contends that the government failed to disclose exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Specifically, he alleges that the government did not disclose a material
inconsistency between the testimony of Officer Fessler, who testified to
the Grand Jury that the transaction at issue took place in plain view, and
that of Fessler's partner, Officer Parker, who testified at trial that the
transaction took place inside the apartment and could not be viewed by
either officer.
Fountain did not raise this issue at trial. Where an appellant has
not properly preserved an issue for review, this court reviews only for
plain error. United States v. Swanson, 9 F.3d 1354, 1356 (8th Cir. 1993).
Under plain error review, an error not identified by a contemporaneous
objection is grounds for reversal only if the error prejudices the
substantial rights of the defendant and would result in a miscarriage of
justice if left uncorrected. Id. at 1356-57. Plain error has been
described by the Supreme Court as "obvious, or . . . otherwise seriously
affect[ing] the fairness, integrity or public reputation of judicial
proceedings." United States v. Atkinson, 297 U.S. 157, 160 (1936); see
also Phillips v. Parke, Davis & Co., 869 F.2d 407, 409 (8th Cir. 1989).
In the present case, we are hard pressed to find any error, much less
plain error. The government asserts that it turned over its discovery file
to Fountain and he does not dispute that assertion. Fountain contends
nonetheless that the Government failed to "disclose" an inconsistency in
the two officers'
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testimony, that is, that it did not highlight the inconsistencies to
defense counsel. The government has no such duty. Moreover, the
inconsistency was apparently discerned by defense counsel and was the
subject of extensive cross-examination. Accordingly, we find no Brady
violation.
C. Fountain as Career Offender
Fountain challenges the district court's finding that he is a career
offender. A defendant is regarded as a career offender if: (1) he was at
least eighteen years old at the time of the offense of conviction; (2) that
offense is a crime of violence or a drug-related felony; and (3) and he has
two prior convictions for drug felonies or crimes of violence. USSG §
4B1.1. We review the district court's application of the Guidelines de
novo. United States v. Gullickson, 981 F.2d 344, 346 (8th Cir. 1992).
Fountain contends that a 1981 burglary conviction and a 1989 drug
conviction should not have been counted as predicate offenses under the
Guidelines. Specifically, he first claims that the burglary should not
count as a "crime of violence" under the Guidelines because he burglarized
a garage, not a dwelling. A crime of violence is defined in the Guidelines
as:
(1) any offense under federal or state law punishable by
imprisonment for a term exceeding one year that--
(i) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(ii) is burglary of a dwelling, arson, or
extortion, involves the use of explosives, or
otherwise involves conduct that presents a serious
potential risk of physical injury to another.
USSG § 4B1.2.
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As indicated, Fountain was convicted of burglarizing a garage. The
burglary in question was in progress when interrupted by the homeowner, an
off-duty police officer. Fountain and his accomplice were armed with a
loaded revolver, which was pointed at the officer/homeowner. The
officer/homeowner then fired his weapon at the burglars and they fled.
Under the circumstances, we have no difficulty finding that the incident
"otherwise involves conduct that presents a serious potential risk of
physical injury to another." See United States v. Hascall, 76 F.3d 902,
904 (8th Cir. 1996) (second-degree burglary of a commercial building
qualifies as a crime of violence under section 4B1.2); see also United
States v. Cornelius, 931 F.2d 490, 493 (8th Cir. 1991) (use of a weapon
signifies a crime of violence).
Fountain next contends that his 1989 guilty plea to a drug charge was
not voluntary because he was not informed that the felony conviction could
later be used to enhance a sentence. A court is not required to inform a
defendant of the possibility of being sentenced as a recidivist for a plea
to be valid. See Nichols v. United States, 114 S. Ct. 1921, 1928 (1994)
(rejecting contention that a misdemeanor defendant be informed); see also
Thomas v. United States, 27 F.3d 321, 326 (8th Cir. 1994) (district court's
failure to inform defendant of possible enhancement does not invalidate
guilty plea).
D. Application of Amendment 506 - Career Offender/Offense
Statutory Maximum
The government's assertion that the Sentencing Commission lacks
authority to enact Amendment 506 is premised on the argument that the
amendment is inconsistent with 28 U.S.C. § 994(h). This appeal presents
a case of first impression in this Circuit. There is now a split of
authority among other circuits on the validity of the amendment. Compare
United States v. Hernandez, 1996 WL 116360 (7th Cir. Mar. 18, 1996),
petition for cert. filed, ___ U.S.L.W.
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___ (U.S. April 1, 1996) (No. 95-8469); United States v. Novey, 1996 WL
115326 (10th Cir. Mar. 15, 1996) (finding the amendment invalid) with
United States v. Dunn, 1996 WL 162434 (9th Cir. Apr. 9, 1996); United
States v. LaBonte, 70 F.3d 1396 (1st Cir. 1995) (finding the amendment a
reasonable interpretation of an ambiguous statute). We agree with the
Seventh and Tenth Circuits that the amendment is inconsistent with the
statute and is, therefore, invalid.
Prior to the amendment, application note 2 to section 4B1.1 of the
Guidelines stated only that "Offense Statutory Maximum" referred to "the
maximum term of imprisonment authorized for the offense of conviction."
USSG § 4B1.1, comment. (n.2) (1993). Courts addressing the issue uniformly
held that, where a statute, such as 21 U.S.C. § 841, provides for an
enhanced penalty based on a defendant's prior criminal record, "Offense
Statutory Maximum" meant the enhanced statutory maximum.5 See United
States v. Sanchez, 988 F.2d 1384, 1394-97 (5th Cir.), cert. denied, 114
S. Ct. 217 (1993); United States v. Smith, 984 F.2d 1084, 1086-87 (10th
Cir.), cert. denied, 114 S. Ct. 204 (1993); United States v. Saunders,
973 F.2d 1354, 1364 (7th Cir. 1992), cert. denied, 506 U.S. 1070 (1993);
United States v. Garrett, 959 F.2d 1005, 1009-11 (D.C. Cir. 1992); United
States v. Amis, 926 F.2d 328, 329-30 (3d Cir. 1991); United States v.
Sanchez-Lopez, 879 F.2d 541, 558-60 (9th Cir. 1989). These courts
acknowledged that the provision effectively punished recidivists twice:
first to enhance the defendant's criminal history category and again to
increase the defendant's offense level, but found that result consistent
with Congress's desire to sentence career offenders at or near the
5
For example, prior to the amendment, if a person sentenced
under 21 U.S.C. § 841(b) was shown to have the requisite criminal
history for an enhanced sentence, the "Offense Statutory Maximum"
would be the enhanced sentence, and the applicable sentencing range
under section 4B1.1 would be found using that higher "Offense
Statutory Maximum."
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maximum. See, e.g., Smith, 984 F.2d at 1087. Significantly, most of these
courts construed not the guideline, but the statute. See Sanchez, 988 F.2d
at 1396; Smith, 984 F.2d at 1087; Garrett, 959 F.2d at 1010; Sanchez-Lopez,
879 F.2d at 559.
Through Amendment 506, the Commission added language to application
note 2 of section 4B1.1. The challenged amendment now defines the term
"Offense Statutory Maximum" in section 4B1.1 to mean the statutory maximum
prior to any enhancement based on a prior criminal record. USSG § 4B1.1,
comment. (n.2) (1995). The purpose of the rule is to avoid unwarranted
sentencing disparities. Id., comment. (backg'd.). Accordingly, the
Commission contends that "Offense Statutory Maximum" under section 4B1.1
"refers to the maximum term of imprisonment authorized for the offense of
conviction . . . not including any increase in that maximum term under a
sentencing enhancement provision that applies because of the defendant's
prior criminal record." Id., comment. (n.2). Thus, "where the statutory
maximum term . . . is increased from twenty years to thirty years because
the defendant has one or more qualifying prior drug convictions, the
`Offense Statutory Maximum' for the purposes of this Guideline is twenty
years and not thirty years."6 Id.
Commentary in the Guidelines Manual "that interprets or explains a
guideline is authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline." Stinson v. United States, 508 U.S. 36, 38 (1993). It is
beyond dispute that when a statute and a guideline conflict, the statute
controls. United States v. Stoneking, 60 F.3d 399, 402 (8th Cir. 1995) (en
banc) ("[t]he Sentencing Commission cannot override Congress"), cert.
6
This example is on all fours with Fountain's situation except
that Fountain's "Offense Statutory Maximum" increases from forty
years to life.
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denied, 116 S. Ct. 926 (1996). Our task, then, is to determine whether the
statute and the amendment conflict.
Based upon the plain language of section 994(h), we conclude that the
amendment conflicts with the statute and is therefore invalid. See
Hernandez, 1996 WL 116360 at *12-13; Novey, 1996 WL 115326 at *3. Section
994(h) requires that "[t]he Commission shall assure that the guidelines
specify a sentence to a term of imprisonment at or near the maximum term
authorized for categories of defendants in which the defendant is eighteen
years old or older" and has been convicted of a crime of violence or
enumerated drug offense and has at least two prior such convictions. 28
U.S.C. § 994(h).
The controverted language is the phrase "at or near the maximum term
authorized." The question becomes the maximum term of what--the enhanced
sentence or the unenhanced sentence? The First Circuit found ambiguity in
both the terms "at or near" and "maximum term authorized." LaBonte, 70
F.3d at 1405, 1409. It then determined that the Sentencing Commission was
due the deference afforded an agency interpreting its own regulations and
found the amendment a reasonable interpretation of the vague and ambiguous
language of section 994(h).7 Id. at 1404, n.8. We disagree.
7
Because the plain language of the statute is not ambiguous,
we need not decide the degree of deference, if any, owed to the
Sentencing Commission's interpretation of an ambiguous statute. AS
indicated above, the First Circuit, finding the language of section
994(h) to be ambiguous, recently concluded that the Commission's
interpretation is entitled to deference. LaBonte, 70 F.3d at 1403-
04 (applying two-step analysis of Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984) traditionally
applied to review construction that a federal executive agency has
placed on a statute it is charged with administering). We, too,
have applied Chevron in Guideline cases. See, e.g., United States
v. Galloway, 976 F.2d 414, 420-21 (8th Cir. 1992) (en banc), cert.
denied, 507 U.S. 974 (1993). The Supreme Court, although
acknowledging that "the Commission's expertise . . . may be of
potential weight and relevance" in some contexts, has thus far
declined to decide what deference is owed to the Commission. Neal
v. United States, 116 S. Ct. 763, 766-68 (1996); Hernandez, 1996 WL
116360 at *6. It thus appears that there may be continuing
validity to criticism of reliance on Chevron in the context of the
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There is no ambiguity in the directive contained in section 994(h).
It is clear to us that the crucial word in the statute is "category" and
that the meaning of the rest of the language cannot be discerned without
knowing the "category" of defendants to which the statute refers.
Following the phrase containing the word "category" are listed types of
defendants: (1) eighteen years of age or older; (2) violent felons; (3)
drug felons; (4) with two such prior convictions. 28 U.S.C. § 994(h). The
listed characteristics modify or define the word "category."
The "category" referred to is thus the recidivist or repeat offender
category. In our view, the statute is a recidivist statute clearly aimed
at the category of adult repeat violent felons and adult repeat drug
felons. See Hernandez, 1996 WL 116360 at *13 (the meaning of "categories"
derives from the types of convictions that bring defendants within the
purview of the statute). Because the "maximum term authorized" for
categories of recidivist defendants is necessarily the enhanced statutory
maximum, there is no ambiguity in the statute.8 Novey, 1996 WL 115326 at
*3. The Commission's interpretation can stand only under the reasoning
that "category" refers to only those offenders
interplay between the guidelines and statutory interpretation. See
Galloway, 976 F.2d at 434-35 (Beam, J., dissenting); Cf. Smith v.
United States, 508 U.S. 223, 231 (1993) (expressing doubt that
Sentencing Guidelines are relevant to construction of a federal
criminal statute).
8
Further support for this conclusion is found in the context
of another subsection of section 994. Subsection (i) directs the
Commission to "assure that the guidelines specify a substantial
term of imprisonment" to several categories of defendants with
prior felony convictions--not specified as violent or drug-related
felonies. 28 U.S.C. § 994(i). Subsection (h) was enacted to
strengthen the penalties for career criminals beyond those already
provided in subsection (i). Novey, 1996 WL 115326 at *4.
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(including repeat offenders) who happen to transgress the same criminal
statute. We disagree with this approach.
A fundamental canon of statutory construction is that, unless
otherwise defined, words will be interpreted as having their ordinary,
contemporary, common meaning. Beef Nebraska, Inc. v. United States, 807
F.2d 712, 716 (8th Cir. 1986). The term "maximum" ordinarily means the
upper limit of a range, the greatest quantity possible or permissible.
Hernandez, 1996 WL 116360 at *13. Where a statute prescribes a range of
punishment, the maximum is the upper end of the range. Id. Where a
statute provides two tiers of punishment, common sense dictates that the
maximum must fall at the high end of the two tiers. Id. The tiered
penalty structure of section 841 predates section 994 and the Guidelines.
Id. Congress was therefore aware that the Commission would be confronted
with the choice of enhanced or unenhanced penalties in choosing the
"maximum term authorized." Accordingly, we find no ambiguity in the word
"maximum," which we choose to afford its ordinary meaning.
Similarly, we have no trouble dispensing with the perceived
ambiguities in the "at or near" language of section 994(h). "At," of
course, is not ambiguous. "Near" ordinarily means "close to" and is a
relative term. Relative, however, does not necessarily mean ambiguous.
The sentencing scheme requires flexibility for upward and downward
adjustments. Hernandez, 1996 WL 116360 at *16. We disagree with the
district court's conclusion that "the phrase `at or near' is not specific
and does not provide clear guidance as to the degree of nearness intended
by Congress." Fountain, 885 F. Supp. at 188. The issue here is not how
close the sentence must be to the statutory maximum, but to which statutory
maximum it must be close. No one can contend that the sentence resulting
from use of the unenhanced statutory maximum is "at or near" the sentence
resulting from use of the enhanced statutory maximum. The
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difference here is more than eight years. In short, the definition of
"near" does not realistically affect the dispute.
We are also persuaded that the Commission's current interpretation
of the statute is "inherently implausible because it effectively nullifies
the criminal history penalties carefully enacted in statutes like 21 U.S.C.
§ 841." LaBonte, 70 F.3d at 1415 (Stahl, J., dissenting in part). Under
the Sentencing Commission's interpretation, a recidivist violent felon or
recidivist drug felon would receive only that sentence at or near the
maximum for defendants without such prior convictions. Id. Such an
interpretation reduces both section 994(h) and the penalty enhancing
components of statutes such as section 841 to mere surplusage.
The argument that rejection of the amendment transfers discretion
from the judge to the prosecutor is, regrettably, of no moment to this
discussion. This shift of discretion has been one of the most common
criticisms of the guidelines system. See Novey, 1996 WL 115326 at *7. Yet
Congress apparently acquiesces in this transfer. When Congress enacted
these provisions, it was aware that the "maximum term authorized" will vary
depending on whether a prosecutor seeks an enhanced sentence. Id.; 21
U.S.C. § 851 (a)(1)(1982) (the government is required to file an
information to establish prior convictions to trigger the tiered punishment
scheme of section 841). But see Hernandez, 1996 WL 116360 at *14
(characterizing section 851 as a process-oriented command for defendant's
benefit rather than an overt grant of discretion to the prosecutor).
Regardless of our concerns about prosecutorial discretion, we must abide
by the plain meaning of section 994(h).
Although we find that the statute is clear and unambiguous, we share
the Tenth Circuit's diffidence in invalidating Amendment 506. Novey, 1996
WL 115326 at *7. We agree that the Commission's attempt to ameliorate the
severity of the guidelines' treatment of
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recidivist drug offenders comports with a widespread belief that the
guidelines system is unreasonably draconian in many cases and deprives
judges of the discretion to consider mitigating circumstances. Id.
This case in particular produces an extremely harsh result. Ivy
Nelson is the father of nine children. He has a history of drug and
alcohol abuse that has been periodically controlled. During those periods,
he has been a somewhat productive member of society--at least contributing
to the support of his children. Although he has a long "rap sheet," his
crimes pale in comparison to the violent and heinous crimes and large-scale
drug conspiracies familiar to the federal and state courts. There is no
evidence in this record that Fountain is either a drug kingpin or gang
member. At his sentencing, he expressed disbelief that he was "brought to
the feds" and professed a desire for drug and alcohol rehabilitation.
Fountain will now be incarcerated, at the taxpayers' expense, for at least
thirty years for selling five grams of cocaine base.
Nonetheless, such unfairness is for Congress, not the courts, to
remedy. Though there may be "little in logic to defend" Congress's
position, we agree that "Congress would have less reason to exercise its
responsibility to correct statutes that are thought to be unwise or unfair"
if we were to alter our statutory interpretations in cases such as this.
Neal v. United States, 116 S. Ct. 763, 769 (1996).
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III. CONCLUSION
Fountain's conviction is affirmed. The sentencing Commission's
amendment to the commentary accompanying the career offender guideline is
incompatible with the mandate of 28 U.S.C. § 994(h) and therefore is
invalid. Fountain's sentence is vacated and this case is remanded to the
district court for resentencing in accordance with this opinion.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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United States v. Ivy N. Fountain
Combined Opinion