Whose Applicable Guideline Range is it Anyway? Can Nominal Career Offenders Receive Sentence Reductions Based on Retroactive Reductions in the Crack Cocaine Guidelines?
affiliation not provided to SSRN
February 1, 2012
Columbia Law Review, Forthcoming
One of the overarching goals of federal sentencing policy is uniformity. This means that defendants with similar criminal histories who are found guilty of similar criminal conduct get similar punishments. This aim is reflected in the federal Sentencing Guidelines (“Guidelines”) and 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) gives courts the authority to lower a prisoner’s sentence if, after sentencing, the guideline sentencing range for his crime is reduced and the Sentencing Commission grants courts the authority to retroactively lower the sentences of defendants sentenced before the reduction in the guideline range. An infrequently-used provision previously, § 3582(c)(2) has received quite a workout since the Commission lowered the guideline range for crack cocaine offenses in 2007 and gave this reduction retroactive effect in 2008. On November 1, 2011, the Commission effectively guaranteed another deluge of § 3582(c)(2) motions by granting retroactive effect to another reduction of the crack cocaine guideline range.
Since 2008, over 25,500 § 3582(c)(2) motions have forced the federal courts to grapple with difficult eligibility questions for many defendants whose sentences were impacted by the old crack cocaine guideline range. Before a court can even consider reducing a term of imprisonment, § 3582(c)(2) and the corresponding policy statement in the Guidelines, U.S.S.G. § 1B1.10, impose two eligibility requirements: (1) a defendant’s sentence must be “based on” a subsequently reduced guideline range; and (2) a defendant’s “applicable guideline range” must have been lowered. Because many circuits give the phrase “applicable guideline range” a hyper-technical meaning, these circuits restrict eligibility for § 3582(c)(2) sentence reductions for many defendants whose sentences were ultimately based on the old crack cocaine guideline range.
This Note examines a circuit split regarding the eligibility of one such group of defendants, so-called “nominal career offenders.” As the term suggests, nominal career offenders technically qualify as career offenders under the Career Offender provision of the Guidelines. Qualifying as a career offender ordinarily subjects a defendant to the increased sentences of the career offender guideline range, rather than the guideline range of the offense of conviction. Nominal career offenders, however, receive a sentence lower than the career offender guideline range pursuant to U.S.S.G. § 4A1.3. Section 4A1.3 permits courts to grant “overrepresentation departures” --- impose a sentence beneath the career offender guideline range if the career offender category “substantially over-represents the seriousness of the defendant’s criminal history.”
Although in many cases involving nominal career offenders courts imposed such lower sentences within the old crack cocaine guideline range, not the career offender range, the Sixth, Eighth, and Tenth Circuits hold that nominal career offenders are ineligible for § 3582(c)(2) reductions. The First, Second, Third, and Fourth Circuits, on the other hand, permit nominal career offenders whose sentences were based on the crack cocaine guidelines to receive the benefit of a sentence reduction under § 3582(c)(2).
In muddling through this circuit split, this Note confronts two sub-circuit splits that have led courts in different analytical directions. First, courts disagree about the prerequisites for eligibility for a retroactive sentence reduction under §§ 3582(c)(2) and 1B1.10.
Specifically, the circuits split as to whether §§ 3582(c)(2) and 1B1.10 solely require that a defendant’s sentence was “based on” a subsequently lowered guideline range --- a position maintained by the First and Second Circuits. The Third, Fourth, Sixth, Eighth, and Tenth Circuits, however, have held that the phrase “applicable guideline range” in § 1B1.10 refers to a defendant’s guideline range at a particular point in applying the Guidelines and thereby imposes a distinct, more formal bar to eligibility. Although formalistic, the competing approaches are important because, as discussed below, the circuits that give the more technical meaning to “applicable guideline range” disagree as to whether a nominal career offender’s applicable guideline range can ever be the crack cocaine range.
The second sub-circuit split is what constitutes a nominal career offender’s applicable guideline range under the more technical reading of § 1B1.10 that “applicable guideline range” refers to a defendant’s sentencing range at a specific point in applying the Guidelines. The Sixth, Eighth, and Tenth Circuits, relying on a definition of overrepresentation departure inserted in 2003, have held that a nominal career offender’s applicable guideline range is the career offender range, not the crack cocaine range. Because the career offender range has not been lowered, these courts do not permit retroactive sentence reductions for nominal career offenders. The Third and Fourth Circuits, however, refused to apply the new definition of overrepresentation departure to defendants sentenced prior to its enactment, and have held that the applicable guideline range for a nominal career offender is the range to which a court departs at sentencing. If a court departed to the crack cocaine range in imposing sentence, the Third and Fourth Circuits permit § 3582(c)(2) reductions for nominal career offenders.
This Note concludes that § 3582(c)(2) does not permit courts to exercise authority to reduce the sentences of nominal career offenders. Part I briefly introduces the reader to §§ 3582(c)(2) and 1B1.10 and the reductions in the crack cocaine Guidelines, and outlines the sections of the Guidelines pertinent to the sentencing of nominal career offenders. Part I also details how circuits determine whether to apply amendments that clarify the technical functioning of the Guidelines to defendants sentenced prior to their enactment. Part II explores the key lines of analysis in the nominal career offender cases: (1) whether the phrase “applicable guideline range” in § 1B1.10 imposes a technical requirement distinct from § 3582(c)(2)’s “based on” language;” (2) whether a nominal career offender’s sentence can be “based on” the lowered crack cocaine guideline range; (3) whether a nominal career offender’s “applicable guideline range” can be the crack cocaine range; and (4) whether the definition of overrepresentation departure inserted in 2003 should be applied to defendants sentenced using earlier versions of the Guidelines. Part III contends that § 1B1.10’s “applicable guideline range” language refers to a defendant’s sentencing range at a particular point in applying the Guidelines and concludes that a nominal career offender’s applicable guideline range is the career offender range. Therefore, Part III argues that nominal career offenders may not receive the benefit of a retroactive sentence reduction under § 3582(c)(2). Part IV introduces a technical amendment to the Guidelines that took effect on November 1, 2011 --- Amendment 759 --- and analyzes its likely impact on all future § 3582(c)(2) motions by nominal career offenders.
Number of Pages in PDF File: 52
Keywords: 3582(c)(2), crack cocaine, nominal career offender, career offender
Date posted: February 18, 2012
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