United States v. Caraballo

United States Court of Appeals
For the First Circuit

No. 08-1555

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS CARABALLO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Boudin, Circuit Judges.

Bjorn Lange, Assistant Federal Public Defender, for appellant.
Aixa Maldonado-Quiñones, Assistant United States Attorney,
with whom Thomas P. Colantuono, United States Attorney was on
brief, for appellee.

December 22, 2008
 SELYA, Circuit Judge. This single-issue criminal appeal

raises a question of first impression in this circuit: Does the

Sentencing Commission's recent amendment to the drug quantity

table, USSG App. C, Amend. 706 (2007), offer a potential remedy to

a defendant who, although convicted of a drug-trafficking offense

involving crack cocaine, was ultimately sentenced as a career

offender? The district court answered that question in the

negative, concluding that the amendment does not benefit the

defendant in the circumstances of this case. We affirm the denial

of the defendant's motion for a reduced sentence.1

The facts and posture of the case are straightforward.

On April 6, 2005, defendant-appellant Luis Caraballo pleaded guilty

to two counts of possessing crack cocaine with intent to

distribute. See 21 U.S.C. § 841(a)(1). The district court

computed the guideline sentencing range as follows. It started

with a base offense level of 22, premised on a drug quantity of

3.65 grams of crack cocaine. See USSG §2D1.1. Concluding that the

defendant's criminal record qualified him as a career offender, id.

§4B1.1(a), the court performed the alternate calculation required

by the career offender guideline, see id. §4B1.1(b). That

1
This case was consolidated with United States v. Ayala-
Pizarro, No. 08-1321, and argued in this court on November 5, 2008.
Although the issue presented in both appeals is substantially
identical, we opt to decide the cases separately. This is the
first of the decisions; an opinion in Ayala-Pizarro will issue
shortly.

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alternate calculation implicated a higher base offense level (32)

than the non-career-offender calculation (22). Consequently, as

prescribed in the career offender guideline, id. §4B1.1(b), the

court employed the enhanced offense level. It then applied a

three-level credit for acceptance of responsibility. See id.

§3E1.1. These adjustments yielded a guideline sentencing range of

151 to 188 months.

On September 7, 2005, the district court convened the

disposition hearing. The court announced its view that the career

offender calculations controlled. The defendant did not challenge

the court's decision to invoke the enhanced career offender

sentencing range. Instead, he argued for a downwardly variant 48-

month sentence under the aegis of United States v. Booker, 543 U.S.

220, 245-46 (2005). The defendant premised his plea primarily on

his deteriorating health.

The district court granted a less generous variance and

sentenced the defendant to a 108-month incarcerative term on each

count, to run concurrently, together with three years of supervised

release. The defendant appealed. We denied relief, finding the

sentence reasonable. United States v. Caraballo, 447 F.3d 26, 28

(1st Cir. 2006).

For many years before and after the imposition of the

defendant's sentence, a vigorous debate had been waged about the

relatively heavy level of punishment associated with crack cocaine

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offenses as compared to the somewhat lighter level of punishment

associated with crimes involving powdered cocaine. See, e.g.,

Kimbrough v. United States, 128 S. Ct. 558, 568-70 (2007) (limning

the history of this debate); United States v. Pho, 433 F.3d 53, 54-

57 (1st Cir. 2006) (similar). On November 1, 2007, the Sentencing

Commission took definitive action by revising a portion of the drug

quantity table. See USSG App. C, Amend. 706 (2007). Generally

speaking, Amendment 706 adjusts downward by two levels the base

offense level ascribed to various quantities of crack cocaine under

USSG §2D1.1(c), thereby shrinking the guideline disparity between

crack cocaine offenses and powdered cocaine offenses. Shortly

after promulgating Amendment 706, the Commission imbued it with

retroactive effect. See USSG App. C, Amend. 713 (Supp. May 1,

2008).

Cognizant of these developments, the defendant lost

little time in filing a motion for reduction of his sentence. He

claimed that his sentence derived from the drug quantity table for

crack cocaine; that Amendment 706 has altered that guideline; and

that, therefore, he was eligible for a shorter sentence.2 As a

2
Technically speaking, Amendment 706 modifies the drug
quantity table. Its effect, however, is to mitigate the
recommended guideline sentencing ranges for offenses involving
crack cocaine. For ease in exposition, we shall refer to the
affected portion of the drug quantity table as "the crack cocaine
guideline."

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vehicle for the achievement of that goal, he identified 18 U.S.C.

§ 3582(c)(2) (quoted infra).

The district court did not agree that section 3582(c)(2)

applied. Noting that the defendant had been sentenced as a career

offender, the court found that it lacked authority to reconsider

the sentence. Accordingly, the court denied the defendant's

motion. United States v. Caraballo, No. 04-CR-035-01 (D.N.H. Apr.

23, 2008) (unpublished order). This timely appeal followed.

We review a district court's denial of a motion for

reduction of sentence under section 3582(c)(2) for abuse of

discretion. United States v. Rodríguez-Peña, 470 F.3d 431, 432

(1st Cir. 2006) (per curiam). A material error of law is perforce

an abuse of discretion. United States v. Snyder, 136 F.3d 65, 67

(1st Cir. 1998). That subsidiary doctrine has particular

pertinence here: this case requires us to determine, as a threshold

matter, whether the district court had authority to act under

section 3582(c)(2). That is purely a question of statutory

interpretation and, to that extent, the court's answer to it

engenders de novo review. See United States v. Leahy, 473 F.3d

401, 405 (1st Cir. 2007); United States v. Gibbens, 25 F.3d 28, 32

(1st Cir. 1994).

Finality is an important attribute of judgments and,

typically, once a pronounced sentence in a criminal case becomes

final and unappealable, it may not be modified. See, e.g., United

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States v. Lawrence, 535 F.3d 631, 637 (7th Cir. 2008); United

States v. Jordan, 162 F.3d 1, 2 (1st Cir. 1998); see also 18 U.S.C.

§ 3582(c). But this general rule, like virtually every general

rule, admits of exceptions. One such exception is embodied in the

statute alluded to above, which provides in relevant part that:

in the case of a defendant who has been
sentenced to a term of imprisonment based on a
sentencing range that has subsequently been
lowered by the Sentencing Commission . . . the
court may reduce the term of imprisonment,
after considering the factors set forth in
section 3553(a) to the extent that they are
applicable, if such a reduction is consistent
with applicable policy statements issued by
the Sentencing Commission.

18 U.S.C. § 3582(c)(2). In enacting this statute, Congress spoke

with unmistakable clarity: before a district court can consider a

sentence modification thereunder, it must satisfy itself that the

original sentence was "based on a sentencing range that has

subsequently been lowered." Id. (emphasis supplied).

In the case at hand, the defendant acknowledges that the

lower court sentenced him as a career offender, and he eschews any

challenge to that designation. He nonetheless maintains that his

sentence was "based on" the crack cocaine guideline, USSG §2D1.1,

because the court used that guideline in the series of calculations

leading up to its production of the sentencing range that it

ultimately found applicable.

Refined to bare essence, the defendant's suggestion is

that, even though his sentence was not dictated exclusively by the

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crack cocaine guideline, it was "based on" that guideline because

that guideline was a way station along the road that the district

court traveled in arriving at the appropriate sentencing range. He

insists that, given this imbrication, Amendment 706 unlocks section

3582(c)(2) and authorizes the district court, on his motion, to

recalculate his sentencing range and determine anew, in light of

generally applicable sentencing factors, see 18 U.S.C. § 3553(a),

whether a sentence reduction is warranted.

We are not persuaded. Here, the district court first

determined the offense level applicable to the underlying drug-

trafficking offenses, using the crack cocaine guideline. It then

determined the alternate offense level resulting from the

defendant's status as a career offender. Only then did it choose

the offense level that it actually used in sentencing the

defendant: the enhanced career offender level.

The defendant's argument that this oblique reference to

the crack cocaine guideline was enough to trigger section

3582(c)(2) disregards the way in which the career offender

guideline operates. As we explained in United States v. Ventura,

353 F.3d 84 (1st Cir. 2003), the career offender guideline

incorporates its own sentencing table. Id. at 90. If the offense

level for a career offender from that table "is greater than the

offense level otherwise applicable, the offense level from the

[career offender] table . . . shall apply." USSG §4B1.1(b). That

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usually will be the case, since the career offender guideline "sets

forth a tabulation of offense levels that are determined by

reference to the statutory maximum sentences authorized for various

offenses of conviction." Ventura, 353 F.3d at 90.

Given this architecture, the sentencing court's authority

is severely limited in career offender cases:

[T]he sentencing court must take the
applicable offense level from the career
offender table and compare it to the offense
level that would be applicable absent a career
offender designation. If the former exceeds
the latter, the court must use it in
determining the defendant's [guideline
sentencing range].

Id. (emphasis supplied).

This case hewed to the normal pattern: the career

offender guideline provided the higher offense level and, thus,

yielded a more punitive sentencing range. That was the range that

the district court actually used at sentencing. Consequently, to

say that the defendant's sentence was "based on" the crack cocaine

guideline strains credulity. Reaching that result would require us

to rewrite section 3582(c)(2) and, in the bargain, invade

Congress's exclusive preserve.

Nor is there room for any legitimate doubt. In drafting

section 3582(c)(2), Congress has not sounded an uncertain trumpet

but, rather, has couched the statute in plain and unambiguous

language. The term "sentencing range" clearly contemplates the end

result of the overall guideline calculus, not the series of

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tentative results reached at various interim steps in the

performance of that calculus. Thus, if an amended guideline does

not have the effect of lowering the sentencing range actually used

at sentencing, the defendant's sentence was not based on that range

within the intendment of the statute.

We add three embellishments. First, our "plain meaning"

construction of section 3582(c)(2) comports with the authorities

elsewhere. Three other courts of appeals have addressed this

precise question, and each of them has read the statute in the same

manner as do we. See United States v. Sharkey, 543 F.3d 1236, 1239

(10th Cir. 2008); United States v. Moore, 541 F.3d 1323, 1328 (11th

Cir. 2008); United States v. Tingle, 524 F.3d 839, 840 (8th Cir.

2008) (per curiam).

Second, our construction of section 3582(c)(2) is

entirely consistent with the Sentencing Commission's policy

statements. See, e.g., USSG §1B1.10(a)(2)(B) (made effective on

March 3, 2008, by Amendment 712) (explaining that a sentence

reduction "is not authorized under 18 U.S.C. § 3582(c)(2) if — an

amendment . . . does not have the effect of lowering the

defendant's applicable guideline range"). The defendant urges us

to ignore this policy statement as merely advisory in a post-Booker

world — but Booker neither undermined the continued vitality of

section 3582(c)(2) nor altered the customary canons of statutory

construction. See United States v. Wise, 515 F.3d 207, 221 n.11

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(3d Cir. 2008) (reasoning that nothing in Booker "purported to

obviate the congressional directive on whether a sentence could be

reduced based on subsequent changes in the Guidelines"). The plain

language of the statute drives the result here.

Third, our conclusion here is fortified by our decision

in United States v. Hickey, 280 F.3d 65 (1st Cir. 2002). There,

the defendant had been found guilty of both an armed robbery and a

firearms offense. Id. at 66. Nevertheless, he was sentenced as a

career offender. Id.

After sentence was imposed, the Sentencing Commission

promulgated a clarifying amendment mitigating the recommended

punishment for this combination of underlying offenses. See id. at

66-67 (citing USSG App. C, Amend. 599 (2000)). Hickey sought a

sentence reduction but we ruled that section 3582(c)(2) was

unavailable because his sentence had been based on the career

offender offense level and the resulting sentencing range, not the

offense levels and sentencing ranges for the underlying offenses.

See id. at 69.

Hickey stands for the proposition that a sentencing court

has no authority to entertain a sentence reduction motion under

section 3582(c)(2) when the guideline amendment in question does

not affect the guideline sentencing range actually used by the

sentencing court. Id. Our decision today tracks the Hickey

court's reasoning and emulates its result.

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 We succinctly summarize. Had the new guideline provision

for crack cocaine offenses (Amendment 706) been in effect when this

defendant was sentenced, that provision would not have had any

effect on the sentencing range actually used. As we have said, the

defendant's actual sentencing range was produced by reference to

section 4A1.1 (the career offender guideline), not section 2D1.1

(the crack cocaine guideline). Thus, Amendment 706 did not lower

the defendant's actual sentencing range. Consequently, the

district court did not err in determining that it lacked the

authority to modify the defendant's sentence under 18 U.S.C. §

3582(c)(2).

The defendant has a fallback position. He asseverates

that he is eligible for a sentence reduction because the district

court originally imposed a non-guideline sentence after granting

his plea for a downward variance. With this in mind, he suggests

that the underlying offense conduct drove his sentence, not merely

the career offender guideline. To bolster this suggestion, he

notes that the district court remarked at sentencing that the

offense of conviction was "basically [a] routine streetsweeper

type" drug offense. In the defendant's view, this remark indicates

that the court was relying on the severity of the underlying crack

cocaine crime to fix his sentence.

This argument lacks force. For one thing, the defendant

places more weight on the district court's remark than that remark

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can bear. As we explained on direct review and today reaffirm, the

court's "primary rationale for imposing a sentence below the

guideline sentencing range" was not the nature of the offense

conduct but, rather, the defendant's "medical condition, which [the

court] characterized as 'obviously a serious situation.'"

Caraballo, 447 F.3d at 27.

Perhaps more importantly, even though the defendant

received a non-guideline sentence, that had no effect on the

sentencing range applicable in his case (i.e., the sentencing range

contemplated by section 3582(c)). Under an advisory guidelines

system, a variance is granted in the sentencing court's discretion

after the court has established an appropriately calculated

guideline sentencing range. See United States v. Martin, 520 F.3d

87, 91 (1st Cir. 2008); United States v. Robinson, 433 F.3d 31, 35

(1st Cir. 2005). It is that sentencing range that must be lowered

by an amendment in order to engage the gears of section

3582(c)(2).3

We need go no further. Simply put, the defendant has

failed to satisfy the threshold requirement of section 3582(c)(2):

3
To some extent, the defendant's argument is a potential
boomerang. The sentencing guidelines suggest that even when a
defendant has established his eligibility for a sentence reduction
under section 3582(c)(2), "a further reduction would generally not
be appropriate" if the original sentence is a downwardly variant
non-guideline sentence. USSG §1B1.10(b)(2)(B).

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his sentence was not "based on a sentencing range that was

subsequently lowered" by Amendment 706.4

Affirmed.

4
The failure to cross the statutory threshold obviates any
need to address the scope of the district court's discretion to
modify a sentence once that threshold requirement is satisfied.
Thus, we take no view on the question of whether a defendant who
satisfies the threshold requirement of section 3582(c)(2) is
entitled to a full resentencing, see, e.g., United States, v.
Hicks, 472 F.3d 1167, 1173 (9th Cir. 2007), or merely to a
reduction that reflects a mechanical substitution of the amended
guideline for the original guideline, cf. Jordan, 162 F.3d at 5
(holding that a retroactive amendment that reduced the defendant's
sentencing range did not authorize the district court to consider
further reductions in the sentence predicated on an argument that
was unavailable at the original sentencing).

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