§180 Use of Commentary, Policy
Supreme Court says commentary amendment is binding despite prior court interpretation. (180) Petitioner was convicted of being a felon in possession of a firearm. He was sentenced as a career offender under the 1989 version of the Sentencing Guidelines. After the sentence was affirmed on appeal, the Commentary to §4B1.2 was amended to provide that the term “crime of violence” does not include the offense of unlawful possession of a firearm by a felon (amendment 433). The 11th Circuit rejected a petition for rehearing, ruling that commentary, though persuasive, is of only limited authority and not binding. In a unanimous opinion by Justice Kennedy the Supreme Court reversed, finding that with limited exceptions, guideline Commentary is authoritative. Amendment 433 does not run afoul of the Constitution or a federal statute and is not inconsistent with §4B1.2. Consequently, it is binding on the courts. Stinson v. U.S., 508 U.S. 36, 113 S.Ct. 1913 (1993).
Supreme Court discusses significance of guidelines’ “policy statements.” (180) In a footnote, the majority noted that the dissent stated that an error in interpreting a policy statement governing departures “is not, in itself, subject to appellate review.” Nevertheless, the majority noted that the dissent quoted 18 U.S.C. section 3553(b) which requires the court to consider “the sentencing guidelines, policy statements, and official commentary of the sentencing commission.” Thus, the majority noted that “the dissent would appear to agree that an appellate court can review the validity of a district court’s reasons for departure for consistency with the commission’s policy statements; it simply considers that inquiry to go to the ‘reasonableness’ of the decision to depart rather than to the correct application of the guidelines.” Williams v. U.S., 503 U.S. 193, 112 S.Ct. 1112 (1992).
8th Circuit rules that guidelines commentary can be used to expand guidelines. (180)(520) Defendant pleaded guilty to drug trafficking. At sentencing, the district court found that he was a career offender under § 4B1.1 because his prior conviction for aiding and abetting the distribution of methamphetamine was a “controlled substance offense.” On appeal, the Eighth Circuit affirmed, noting that aiding and abetting is included in the guidelines commentary as a “controlled substance offense” and holding that the court can use the commentary to expand the reach of the guidelines. U.S. v. Garcia, __ F.3d __ (8th Cir. Dec. 26, 2019) No. 18-3040.
6th Circuit, en banc, rejects using commentary to add Career Offender predicate offenses. (120)(180)(520) The Career Offender guideline’s definition of “controlled substance offense” in § 4B1.2 does not include attempts. However, the commentary states that a “controlled substance offense” includes “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” Without dissent, the en banc Sixth Circuit held that the Sentencing Commission cannot use the commentary to add crimes to the guideline’s definition of “controlled substance offense.” U.S. v. Havis, __ F.3d __ (6th Cir. June 6, 2019) No. 17-1552.
1st Circuit remands for hearing on claim of common scheme or plan for prior robberies. (180) Defendant was sentenced as a career offender on the basis of several prior bank robbery convictions. The district court had rejected defendant’s request for an evidentiary hearing to permit him to show that the robberies were part of a common scheme or plan, and thus should only have counted as a single felony. The 1st Circuit remanded for an evidentiary hearing on this issue, unless the district court concluded that it would depart upward to impose the same sentence even without the career offender classification. Note 3 to section 4A1.2 clearly provides that prior sentences are considered related if they were part of a common scheme or plan. Although this commentary might initially appear inconsistent with congressional intent, the Commission recognized that its commentary might result in an underrepresentation of a defendant’s criminal history, and said that the remedy was an upward departure. U.S. v. Elwell, 984 F.2d 1289 (1st Cir. 1993).
2nd Circuit holds that guideline need not be ambiguous to consult commentary. (180) The Second Circuit held that since the commentary is part and parcel of the Sentencing Guidelines manual, and is written by the same body that is charged with drafting the guidelines, the two are to be read together. No threshold test of ambiguity need be passed before the commentary can be consulted. See Stinson v. U.S., 508 U.S. 36 (2d Cir. 1993). Thus, a court should not read the commentary as if it were something akin to legislative history or as if it were an agency’s interpretation of a federal statute. Instead, as the Supreme Court suggested, a court must construe the guideline and its commentary together and seek to harmonize them. If a harmonizing interpretation is possible, and it does to violate the Constitution, that is the proper one. U.S. v. Pedragh, 225 F.3d 240 (2d Cir. 2000).
2nd Circuit says amendment to commentary does not affect prior holding that cocaine base means more than crack. (180) On defendant’s prior appeal, U.S. v. Jackson, 968 F.2d 158 (2d Cir. 1992) (Jackson I), the Second Circuit ruled that a substance that has been identified as “cocaine base” by chemists but is not pure enough to be used as “crack” falls within the definition of “cocaine base” under 21 U.S.C. § 841 and guideline § 2D1.1. On remand, the district court found that defendant possessed cocaine base, but not crack, and imposed a mandatory 10-year sentence. On his second appeal, defendant asked the court to revisit the issue, pointing out that the Sentencing Commission amended the notes following the Drug Quantity Table by defining “cocaine base” to mean only “crack.” The Second Circuit noted that it had previously rejected this argument in U.S. v. Palacio, 4 F.3d 150 (2d Cir. 1993). Although the Commission’s interpretation of guideline § 2D1.1 is authoritative, the amendment could not revise the statutory interpretation the court had already made in Jackson I. The court would not reinterpret the statute in the absence of new guidance from Congress. Congress did not provide that guidance by allowing the amendment to pass. The amendment does not call for revision of the court’s interpretation of § 841(b)(1)(A)(iii). The 10-year mandatory sentence was not cruel and unusual punishment. U.S. v. Jackson, 59 F.3d 1421 (2d Cir. 1995).
2nd Circuit reverses special skill enhancement for defendant sentenced under §2C1.1. (180) Defendant was convicted of receiving corrupt payments and filing false tax returns. The 2nd Circuit reversed a special skills enhancement under section 3B1.3 since defendant was sentenced under section 2C1.1. Application note 3 to section 3C1.1, which is binding upon the courts, prohibits the application of section 3B1.3 except where the offense level is determined under certain enumerated subsections. Since defendant’s offense level was not determined under any of these exceptions, the enhancement was error. U.S. v. Santopietro, 996 F.2d 17 (2nd Cir. 1993).
2nd Circuit says that policy statements are merely interpretative guides and not substitutes for the guidelines. (180) In reviewing the district court’s downward departure based upon defendant’s family circumstances, the 2nd Circuit examined the weight courts should give to policy statements such as section 5H1.6. The statements warrant greater attention that ordinary legislative history, because Congress specifically directed sentencing courts to consider the policy statements. However, the policy statements cannot be viewed as equivalent to the guidelines themselves, since only the guidelines are submitted to Congress for approval. The policy statements are useful in determining whether to depart from a guidelines sentencing range. However, despite their usefulness, the policy statements do not render the statutory standard for departure superfluous. The central question in any departure situation is whether there is an aggravating or mitigating circumstance not adequately taken into consideration by the sentencing commission. U.S. v. Johnson, 964 F.2d 124 (2nd Cir. 1992).
3rd Circuit says new limits on retroactive sentencing reductions are binding. (180) Defendants appealed from orders denying their § 3582(c)(2) motions for sentence reductions based on the recent retroactive crack amendments. They argued that district courts are not bound by the new amendment to § 1B1.10(b) (2)(A), which prohibits reductions below the minimum of the amended guideline range. An earlier version of § 1B1.10 had permitted prisoners who originally received below-guidelines sentences to obtain reductions below their amended ranges in proportion to their earlier departures or variances. The Third Circuit held that 1B1.10’s new limitations are binding on the district courts. The panel rejected arguments that the Sentencing Commission exceeded its authority under the Sentencing Reform Act, that it exercised legislative and judicial authority in violation of separation-of-powers principals, and that the Commission’s notice-and-comment procedure was inadequate. U.S. v. Berberena, 694 F.3d 514 (3d Cir. 2012).
3rd Circuit upholds codification of “one book rule.” (180) Defendant was involved in a stolen car conspiracy from 1985 through May 1988. To avoid ex post facto problems, the court sentenced him under the 1987 guidelines in effect when he committed his offense, including a two level reduction for acceptance of responsibility. Defendant argued that he should have received the three level reduction available under the 1993 guidelines. He argued that the “one book rule,” the practice of applying only one version of the guidelines that is now codified at § 1B1.11(b)(2), is not binding because it is a policy statement rather than a guideline. The Third Circuit held that the “one book rule” is binding. To the extent that prior Third Circuit opinions disapprove of the one book rule, they have been overruled by § 1B1.11(b)(2). Applying the one book rule did not violate the ex post facto clause because defendant’s sentence was imposed under the law in effect at the time he committed his crimes, and therefore he had fair warning of the specific punishment he faced. U.S. v. Cook, 53 F.3d 1029 (9th Cir. 1995).
4th Circuit upholds sentence to 500 hours of community service. (180) Defendant’s guideline range was zero to six months. Because the court found that defendant did not “need incarceration” it sentenced him to three years of probation with the condition of 500 hours of community service. Defendant contended that this requirement was unreasonable in light of guideline section 5F1.3, which suggests that community service in excess of 400 hours generally should not be imposed. The 4th Circuit upheld the 500 hours of community service requirement. Assuming that the failure to follow this commentary was a sentence outside the guideline range, this portion of defendant’s sentence was not unreasonable. U.S. v. Graham, 946 F.2d 19 (4th Cir. 1991).
5th Circuit rejects commentary as inconsistent with kidnapping guideline. (180) Defendants abducted a woman, and attempted to kill her before leaving her by the side of the road. Section 2A4.1(b)(7)(B) says where another offense is committed during a kidnapping, the court must apply the “offense guideline applicable to that offense.” Defendant’s “other offense” was attempted murder. However, note 5 to § 2A4.1 says that “if the offense involved a kidnapping during which a participant attempted to murder the victim under circumstances that would have constituted first degree murder had death occurred, the offense referenced under subsection (b)(7) would be the offense of first degree murder.” The Fifth Circuit ruled that note 5 was inconsistent with the dictates of § 2A4.1(b)(7)(B), and should not be followed. Section 2A4.1(b)(7)(B) directs courts to cross reference the guideline applicable to the crime the defendant actually committed. By directing courts to cross reference the first degree murder guideline in cases of attempted murder, application note 5 violates the clear mandate of the guideline it interprets. Under Stinson v. United States, 508 U.S. 36 (1993), if the commentary and the guideline are inconsistent, the guideline should be followed. U.S. v. Smith, 184 F.3d 415 (5th Cir. 1999).
5th Circuit rejects obstruction enhancement for pre-investigation conduct. (180) Defendant, a former deputy sheriff, violated an arrested woman’s civil rights by kicking her in the head. At the scene of the arrest, defendant warned several officers to keep silent about what they saw. Fifth Circuit precedent limits the application of § 3C1.1 to conduct occurring “during the investigation of the instant offense.” A 1990 amendment to the § 3C1.1 commentary states that the enhancement applies to conduct that violates the federal obstruction of justice statute. The government argued that this amendment showed that the Sentencing Commission did not intend to bar consideration of obstructive conduct that occurred before the beginning of an investigation. The Fifth Circuit held that the plain language of § 3C1.1 limits the enhancement to conduct occurring during the investigation of the offense. To the extent note 3(i) conflicts with the plain language of § 3C1.1, the guideline must be followed. However, the commentary can be interpreted so as not to conflict with the guideline. Note 3(i) merely describes a type of conduct that is subject to the guideline. Thus, conduct that violates the federal obstruction statute only warrants application of § 3C1.1 when such conduct occurs “during an investigation of the defendant’s instant offense.” U.S. v. Clayton, 172 F.3d 347 (5th Cir. 1999).
5th Circuit rules that mail fraud is not a continuing offense. (180) Defendant was convicted of multiple counts of mail fraud. The mailings occurred both before and after the effective date of the guidelines. The sentences for his guidelines offenses ran consecutively to the sentences for his pre-guidelines offenses. He argued that because the guideline commentary required grouping of mail fraud offenses, the district court was bound to order concurrent sentences for all counts. The 5th Circuit upheld the consecutive sentences for the guidelines and pre-guidelines offenses. The commentary is only binding with respect to offenses actually covered by the guidelines. The guidelines only apply to crimes committed after November 1, 1987. Defendant’s offense did not “straddle” the guidelines’ effective date because mail fraud is not a continuing offense. Each mailing constitutes a completed offense. U.S. v. Miro, 29 F.3d 194 (5th Cir. 1994).
5th Circuit upholds enhancement for threat made to bystanders who chased bank robber. (180) While making his escape from a bank robbery, several bystanders observed defendant’s exit from the bank and gave chase. Defendant pretended to have a gun and told them to stop or he would shoot them. Defendant argued that a section 2B3.1(b)(2)(F) enhancement for an express threat of death was improper because the bystanders were not victims of the robbery. The 5th Circuit approved the enhancement. To the extent Note 6 to section 2B3.1 suggests that the threat must be made to the victim of the robbery, it is inconsistent with the guideline and need not be followed. Although escape is not an essential element of the crime of bank robbery, the crime continues through the escape. Because the threat took place during the escape, the enhancement was proper. U.S. v. Ashburn, 20 F.3d 1336 (5th Cir. 1994), reinstated on this issue by U.S. v. Ashburn, 38 F.3d 803 (5th Cir. 1994) (en banc).
5th Circuit rejects commentary barring consideration of interest in amount of loss. (180) Defendant was an officer and chairman of the board of directors of a bank. He acted as loan officer on two loans to a friend without disclosing to the board that he held a secret interest in the property that was the subject of the loan. The district court included in the loss calculation under § 2F1.1 the interest on both loans. The 5th Circuit affirmed, finding that note 7 to § 2F1.1, which forbids the inclusion of the interest the victim could have earned on the funds, was too broad. If the note were applied in this case, it would be inconsistent with § 2F1.1. Interest should be included if, as here, the victim had a reasonable expectation of receiving interest from the transaction. U.S. v. Henderson, 19 F.3d 917 (5th Cir. 1994).
5th Circuit rejects commentary’s limits on official victim adjustment. (180) Section 3A1.2(b) provides for an enhancement if, during an offense or flight from an offense, defendant assaults a law enforcement officer. Application Note 1 states that the enhancement applies when specified individuals are victims of the offense. Defendant contended that since no “specified individuals” were victims of defendant’s drug offense, Note 1 would bar a § 3A1.2(b) enhancement. The 5th Circuit held that Application Note 1 directly conflicted with § 3A1.2(b), and that the guideline was controlling. The court noted that Note 5 expressly refers to subsection (b), and states that section 3A1.2(b) applies to assaults to police during the course of, or during flight from, an offense such as bank robbery. Note 1, in contrast, was part of section 3A1.2 before the addition of subsection (b), and was not amended when subsection (b) was added. U.S. v. Ortiz-Granados, 12 F.3d 39 (5th Cir. 1994).
5th Circuit holds that Chapter 7 policy statements are advisory, not binding. (180) Defendant’s supervised release was revoked after he tested positive for cocaine. Although policy statement 7B1.4 provided for a sentence of 12 to 18 months, the district court rejected this range and imposed a 24-month sentence. The 5th Circuit affirmed, holding that while the Chapter 7 policy statements must be considered by the court, they are advisory and not binding. The sentencing commission chose to issue policy statements in Chapter 7, rather than guidelines, to provide greater flexibility to the courts. This indicates that the commission did not intend for the policy statements of Chapter 7 to be binding on the courts. This holding does not conflict with interpretations of other policy statements in the guidelines such as section 5K1.1 and section 5H1.1. Unlike these sections, the policy statements in Chapter 7 do not interpret or explain any statute or guideline. U.S. v. Headrick, 963 F.2d 777 (5th Cir. 1992).
6th Circuit says loss does not include amounts lender can easily recover by set-off, attachment, foreclosure or demand. (180) Defendant made false statements to obtain three bank loans. On the first loan, the bank had the right to foreclose under a mortgage on some real estate and the right to set off cash funds in other accounts—both of which the bank did, resulting in no actual loss. On the third loan there was no loss because the defendant was not the debtor on the loan but made a false statement about a deed of trust, and the debtor then collateralized the note to the bank’s satisfaction when the bank raised the issue. The district court nonetheless assessed of loss of over $173,000 on the three loans. The Sixth Circuit remanded, finding that the district court attempted to follow the example in note 7(b) to § 2F1.1, but that the example was inconsistent with the rest of the commentary. The commentary says the standard is the greater of “actual loss,” “intended loss,” and “expected loss.” The example, however, refers to an offset for pledged assets, which has a specific legal term. The loss should not include amounts that a bank can and does easily recover by foreclosure, set-off, attachment, simple demand for payment, immediate recovery from the actual debtor and other similar legal remedies. Judge Batchelder dissented. U.S. v. Wright, 60 F.3d 240 (6th Cir. 1995).
6th Circuit holds that Chapter 7 policy statements are not binding. (180) Defendant’s supervised release was revoked after she committed new crimes while on release. The district court sentenced her to 24 months for the supervised release violation, to run consecutively to the state sentence she received for the new crimes. The 6th Circuit held that the district court erred in concluding that it had no discretion to impose a concurrent sentence. The policy statements in Chapter 7 of the guidelines are not binding, but merely must be considered by a court in rendering a sentence for violation of supervised release. U.S. v. Sparks, 19 F.3d 1099 (6th Cir. 1994).
6th Circuit holds that policy statements in section 7B1.4 are not binding but must be considered. (180) The 6th Circuit held that the policy statements in guideline section 7B1.4 are not binding but they must be considered in sentencing for a violation of supervised release. This does not undermine the decision in U.S. v. Levy, 904 F.2d 1026 (6th Cir. 1990), which held that the language of section 5K1.1, also a policy statement, requiring a motion by the prosecutor before granting a substantial assistance downward departure, was binding on the court. A significant difference between Chapters 5 and 7 of the guidelines is that Chapter 7 has a lengthy introduction which explains why the Commission chose to promulgate policy statements for the revocation of supervised release. The explanation clearly indicates that the policy statements in Chapter 7 were intended to give greater flexibility. After a period of evaluation, the commission will promulgate revocation guidelines. U.S. v. Cohen, 965 F.2d 58 (6th Cir. 1992).
7th Circuit says post-Booker use of amended commentary does not violate ex post facto clause. (180) Defendant, together with several accomplices, burglarized a residence and stole firearms and ammunition. Defendant pled guilty to being a felon in possession of a firearm. The district court applied a four-level enhancement for possessing any firearm “in connection with another felony offense,” in this case the burglary. The increase was required by Note 14(b)(1), amended in 2006 to provide that the enhancement applies when a defendant takes a firearm during the course of a burglary. Defendant argued that the application note was inconsistent with the language of the guideline, and the court’s reliance on that commentary violated the ex post facto clause. The Seventh Circuit found that neither claim had any merit. The burglary was distinct from defendant’s simple possession of the firearms, and therefore was consistent with § 2K2.1 (b)(6), which refers to “another” felony offense. Moreover, in view of the advisory nature of the Guidelines post-Booker, there is no ex post facto problem posed by applying the version of the Guidelines in effect at the time of defendant’s sentencing. U.S. v. Hill, 563 F.3d 572 (7th Cir. 2009).
7th Circuit says only offense of conviction can be considered in determining crime of violence. (180) Defendant was convicted of being a felon in possession of ammunition. He met the statutory requirements of an armed career criminal under 18 U.S.C. § 924(e). Under § 4B1.4(b)(3), if the armed career criminal used or possessed the firearm or ammunition in connection with a crime of violence, the offense level is 34. Otherwise, the offense level is 33. Defendant argued that under § 4B1.2, being a felon in possession of guns or ammunition is not a crime of violence. The government contended that a court could consider all conduct related to the unlawful possession. The Seventh Circuit held that a court is bound by note 2 to § 4B1.2 to consider only “the conduct of which the defendant was convicted” to determine whether an offense is a crime of violence. Since crime of violence does not include the offense of unlawful possession of a firearm by a felon, defendant must be sentenced at level 33 rather than level 34. U.S. v. Talbott, 78 F.3d 1183 (7th Cir. 1996), abrogated on other grounds by Dixon v. U.S., 126 S.Ct. 2437 (2006).
7th Circuit says career offender amendment exceeded Sentencing Commission’s authority. (180) Under 28 U.S.C. § 994(h), Commission is required to set the sentence for a career offender at or near the “offense statutory maximum.” Circuit courts have interpreted “offense statutory maximum” to mean the statutory maximum as enhanced by a defendant’s prior criminal record [e.g. 21 U.S.C. § 841(b)]. However, effective November 1994, the Sentencing Commission adopted Amendment 506, which amends note 2 to § 4B1.1 to provide that the term does not include any increase in the maximum term under a sentencing enhancement provision that applies because of a defendant’s criminal record. The Seventh Circuit, disagreeing with U.S. v. LaBonte, 70 F.3d 1396 (1st Cir. 1995) , cert. granted, 518 U.S. 1016 (1996), held that the Sentencing Commission exceeded its authority in enacting Amendment 506, and therefore it was invalid. The Seventh Circuit felt that the mandate of § 994(h) was plain, and the Commission’s amended commentary was in contravention of it. U.S. v. Hernandez, 79 F.3d 584 (7th Cir. 1996).
7th Circuit reverses for failure to follow § 5G1.3 commentary in imposing consecutive sentence. (180) Defendants argued that the district court abused its discretion in making their federal prison terms consecutive to their state prison terms, contrary to the methodology in Commentary Note 3 to § 5G1.3(c). The government argued that the court’s failure to apply the § 5G1.3 methodology was not appealable because it did not constitute an incorrect application of the sentencing guidelines. The Seventh Circuit held that a court’s failure to apply the commentary policy statement was the same as not applying any other guideline. When a policy statement interprets a guideline and tells the sentencing judge how to determine the applicable guideline range, the policy statement retains its authoritative character. U.S. v. Sorensen, 58 F.3d 1154 (7th Cir. 1995).
7th Circuit overrules Lewis and holds Chapter 7 policy statements are not binding. (180) In U.S. v. Lewis, 998 F.2d 497 (7th Cir. 1993), the Seventh Circuit held that the Chapter 7 policy statements on revocation of supervised release are binding on the courts. Policy statement 7B1.3(f) says that a sentence imposed on revocation of supervised release must be consecutive to any prison sentence the defendant is serving. In revoking defendant’s supervised release, the district court indicated that, but for Lewis, it would have sentenced him concurrently. On appeal, the Seventh Circuit overruled Lewis and held that the policy statements in Chapter 7 are not binding (thus following the other circuits). However, the court suggested that, given the incomplete overlap between defendant’s state crimes and his supervised release violations, a fully concurrent sentence might be an abuse of discretion, if it meant that the judge had failed to impose any incremental sanction for the supervised release violation. U.S. v. Hill, 48 F.3d 228 (7th Cir. 1995).
7th Circuit holds that bank teller example conflicts with section 3B1.3. and applies abuse of trust enhancement to postal employee. (180) Defendant, a letter carrier for the U.S. postal service, stole letters from the mail. The 7th Circuit reversed the district court’s refusal to apply an enhancement under section 3B1.3 for abuse of a position of public trust. The district court believed a letter carrier was like a bank teller which note 1 to section 3B1.3 excludes from the position of trust enhancement. However, the appellate court found the bank teller example was in conflict with the guideline itself, and thus was not binding on it. A government employee who takes an oath to uphold the law (as does a mail carrier) and who performs a government function for a public purpose such as delivery of the U.S. mail, is in a position of trust. Defendant used that position to commit his crime. Thus, he should have received the enhancement. U.S. v. Lamb, 6 F.3d 415 (7th Cir. 1993).
7th Circuit directs courts to treat cases consolidated for trial or sentencing as related. (180) Application note 3 to section 4A1.2 provides that cases are considered related if they were consolidated for trial or sentencing. In U.S. v. Elmendorf, 945 F.2d 989 (7th Cir. 1991), the 7th Circuit held that when prior cases had been consolidated solely for purposes of convenience and were otherwise unrelated, the resulting sentence could be counted separately notwithstanding application note 3. Here, the 7th Circuit found that Elmendorf had been called into question by the Supreme Court’s decision in Stinson v. U.S., 113 S. Ct. 1913 (1993), which held that commentary in the guidelines that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute. The district court was directed to resentence defendant as required by application note 3. U.S. v. Harris, 994 F.2d 412 (7th Cir. 1993).
7th Circuit upholds criminal history departure where defendant could have been classified as a career offender. (180) Defendant fell within criminal history category VI, resulting in a guideline range of 51 to 63 months. The district court departed upward to 15 years because (1) an additional 14 points could have been added to defendant’s criminal history score if certain offenses which were not included in defendant’s history due to their age were included, and (2) another 12 points could have been added for six bank robberies which were not considered as separate crimes because they had been consolidated for sentencing. The 7th Circuit affirmed, finding that the district court could have designated defendant as a career offender under section 4B1.1 based on the six bank robberies. The court rejected the conclusion in application note 3 to section 4A1.2 that two convictions, even if completely unrelated factually, may be characterized as one conviction for career offender and criminal history purposes if they are consolidated for sentencing. Since the applicable sentence for a career offender was 151 to 188 months, the extent of the departure was reasonable. U.S. v. Elmendorf, 945 F.2d 989 (7th Cir. 1991).
8th Circuit allows government to use proffer statements to rebut defendant’s argument at sentencing. (180) Defendant pled guilty to conspiring to manufacture and distribute methamphetamine. He argued that the district court used information in his proffer agreement to determine his guideline range, in violation of § 1B1.8(a). Where the government agrees that self-incriminating information in a proffer cannot be used to determine a defendant’s guideline range, § 1B1.8(a) limits the sentencing court’s use of such information except “to the extent provided in the agreement.” Here, the agreement stated that self-incriminating statements could not be used at sentencing, but it listed exceptions, including “to rebut any factual position taken by or on [defendant’s] behalf in connection with sentencing issues or for any other reason.” The Eighth Circuit upheld the court’s use of the proffer statements, finding that the exception applied here. At sentencing, defendant claimed his girlfriend’s pseudoephedrine purchases were not attributable to him. Drug quantity is a question of fact. The government used his proffer statements about meth use and distribution to rebut defendant’s factual position about drug quantity, which was permitted under the agreement. U.S. v. Loesel, 728 F.3d 749 (8th Cir. 2013).
8th Circuit upholds note stating the commencement of “instant offense” includes relevant conduct. (180) Guideline § 4A1.2 (e)(2) provides that a prior sentence of 13 months or less shall be counted in the criminal history calculation if it “was imposed within ten years of the defendant’s commencement of the instant offense.” Defendant argued that “the instant offense” was his January 1998 offense of conviction, which occurred more than 10 years after his October 1986 prior sentence. However, in 1989, the Sentencing Commission amended Note 8 to § 4A1.2 to state that the term “commencement of the instant offense” includes any relevant conduct. The Eighth Circuit held that Note 8’s interpretation of § 4A1.2 was binding, and thus the 1986 prior sentence was properly included in defendant’s criminal history. The Note is not contrary to the plain meaning of § 4A1.2(e)(2). Section 4A1.2(e)(2) refers to “the instant offense,” not “the offense of conviction.” The term “instant offense” is defined in § 1B1.1, Note 1(l): “‘Offense’ means the offense of conviction and all relevant conduct unless a different meaning is specified …. The term ‘instant’ is used in connection with ‘offense’ … to distinguish the violation for which the defendant is being sentenced from a prior or subsequent offense ….” Thus, when the Commission amended Note 8 to expressly provided that relevant conduct must be taken into account in applying § 4A1.2(e)(2), it simply clarified that the usual meaning of “instant offense” should be used. U.S. v. Rosenkrans, 236 F.3d 976 (8th Cir. 2001).
8th Circuit follows note 12 in upholding stolen firearm enhancement. (180) Defendant was convicted of stealing about 28 guns from a federally licensed firearms dealers, in violation of 18 U.S.C. § 924(m). The district court calculated his offense level under § 2K2.1(a)(6) because he was a person prohibited from possessing a firearm due to a prior felony conviction, and applied a subsection (b)(4) enhancement because the firearms were stolen. Note 12 to § 2K2.1 says that the enhancement is not applicable to certain listed offenses or where the base offense level is determined under subsection (a)(7). The Eighth Circuit held the stolen firearm enhancement was proper under note 12. A sentencing court may apply the § 2K2.1(b)(4) increase if the offense of conviction is not one of the offenses enumerated in Note 12, and the base offense level is not calculated under § 2K2.1(a)(7). Because note 12 does not violate the constitution or a federal statute, and does not reflect a plainly erroneous reading of § 2K2.1, it was binding upon the court. The enhancement was not double counting. Section 2K2.1 is a general guideline that applies to a wide variety of firearms violations, and does not require that the firearms involved be stolen. Because the stolen nature of the firearms was not considered in calculating defendant’s base offense level, the subsection (b)(4) enhancement was not double counting. U.S. v. Hawkins, 181 F.3d 911 (8th Cir. 1999).
8th Circuit holds that Chapter 7 policy statement is not a law within meaning of ex post facto clause. (180) Defendant argued that his sentence on revocation of his supervised release violated the Ex Post Facto Clause because the court relied on policy statement 7B1.3(d), which was not in effect at the time defendant committed the underlying offense. The 8th Circuit rejected this argument, holding that the policy statement was not a “law” within the meaning of the Ex Post Facto Clause. Although the guidelines are laws, and the guidelines, accompanying interpretive commentary and some policy statements are binding on the court, Chapter 7 policy statements are “a different breed.” A sentencing court is only required to “consider” Chapter 7 policy statements. Being merely advisory, a Chapter 7 policy statement is not a law within the meaning of the Ex Post Facto Clause. Hence, the court’s consideration of a Chapter 7 policy statement that was amended after defendant’s initial sentencing does not implicate the Ex Post Facto Clause. U.S. v. Levi, 2 F.3d 842 (8th Cir. 1993).
8th Circuit, en banc, upholds government motion requirement for substantial assistance departures. (180) Defendants argued that because guideline section 5K1.1 is a policy statement, rather than a guideline, it is not binding on the courts and therefore a court can reject the provision on policy grounds and depart downward in the absence of a government motion. The 8th Circuit, in a divided en banc decision, rejected this argument. Legislative history indicates that the distinction between guidelines and policy statements is meaningful: policy statements are more general in nature than the guidelines. However, the directive to courts to “consider” policy statements does not mean that a court can reject a policy statement if it pleases, but only shows that Congress anticipated that the more general material to be included in a policy statement would frequently be of a nature to illuminate, rather than determine, a proper outcome. Legislative history might support an argument that a certain policy statement was too general to follow or was not drafted to foresee special circumstances in a particular case, but it does not suggest a court may ignore a policy statement simply because it disagrees with the statement. Judge Beam dissented in part, and Chief Judge Lay and Judges McMillian, Heaney and Arnold dissented separately. U.S. v. Kelley, 956 F.2d 748 (8th Cir. 1992) (en banc).
9th Circuit applies “clarifying” amendment retroactively to hold that felon in possession has never been crime of violence. (180) In 1991, defendant was found to be an Armed Career Criminal, based in part on his 1988 offense of being a felon in possession of a firearm. On appeal, his sentence was reversed because being a felon in possession of a firearm is not a crime of violence under the Armed Career Criminal Act. U.S. v. Garcia-Cruz, 978 F.2d 537, 543 (9th Cir. 1992). On resentencing, however, the district court found defendant to be a Career Offender under the guidelines, relying on U.S. v. O’Neal, 937 F.2d 1369 (9th Cir. 1990), for the proposition that being a felon in possession was a crime of violence for guidelines purposes in 1988, before amendment 433 amended the commentary to guideline § 4B1.1 to state that felon in possession was not a crime of violence. In this second appeal, the 9th Circuit again reversed, holding that amendment 433 was “clarifying” and therefore retroactive. O’Neal is no longer good law. The court noted that in any event, amendment 433 was later added to the list of retroactive amendments in § 1B1.10. U.S. v. Garcia-Cruz, 40 F.3d 986 (9th Cir. 1994).
9th Circuit holds that after Stinson, commentary is authoritative. (180) In Stinson v. U.S., 113 S.Ct. 1913 (1993) the Supreme Court held that commentary “that interprets or explains the guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Accordingly, in this case, the 9th Circuit held that the commentary to guideline 2F1.1 was binding on the district court. U.S. v. Mendoza-Fernandez, 4 F.3d 815 (9th Cir. 1993).
9th Circuit relies on commentary to explain guidelines. (180) Relying on guideline section 1B1.7, the 9th Circuit stated that the commentary accompanying a guideline may interpret the guideline or explain how it is to be applied. The failure to follow such commentary could constitute an incorrect application of the guidelines. Courts should always consider the commentary and construe the guideline and its commentary to be consistent with one another and the relevant part as a whole, if possible. U.S. v. Jackson, 986 F.2d 312 (9th Cir. 1993).
10th Circuit holds amendment to career offender guideline was contrary to statute. (180) In 28 U.S.C. § 994(h), Congress required a career offender’s offense level to be at or near the “offense statutory maximum.” The courts have interpreted this to include the statutory maximum as enhanced by recidivist provisions such as 21 U.S.C. § 841(b). However, effective November 1994, the Sentencing Commission adopted Amendment 506, which amends note 2 to § 4B1.1 to provide that the term “offense statutory maximum” does not include any increase in the maximum term under a sentencing enhancement provision that applies because of a defendant’s criminal record. The Tenth Circuit disagreed with U.S. v. LaBonte, 70 F.3d 1396 (1st Cir. 1995), cert. granted, 518 U.S. 1016, 116 S.Ct. 2545, and held that this amendment was contrary to the statute and therefore invalid. The Tenth Circuit found the Commission’s interpretation “inherently implausible because it effectively nullifies the criminal history enhancements carefully enacted in statutes like 21 U.S.C. § 841.” U.S. v. Novey, 78 F.3d 1483 (10th Cir. 1996).
10th Circuit reaffirms that Chapter 7 policy statements are advisory and not binding. (180) Upon revocation of supervised release, defendant received a 24-month term of imprisonment, even though Chapter 7 of the guidelines provided for a sentence of 6 to 12 months. The 10th Circuit reaffirmed that the policy statements in Chapter 7 are advisory rather than mandatory in nature. The two-year sentence was proper here. The district court demonstrated its awareness of the policy statements and requested counsel to brief the law on an upward departure from the range contained in Chapter 7. After briefing, the court stated a proper reason for the sentence above the recommended range: defendant continued to violate the terms of his supervised release after the district court had previously given defendant the opportunity to alter his behavior by deferring revocation of supervised release. U.S. v. Brooks, 976 F.2d 1358 (10th Cir. 1992).
10th Circuit holds that policy statements in Chapter 7 must be considered but are advisory in nature. (180) The 10th Circuit held that the policy statements regarding the revocation of supervised release set forth in Chapter 7 of the sentencing guidelines are advisory rather than mandatory in nature. The holding was specifically limited to Chapter 7, and the court stated that other policy statements in the guidelines must be evaluated separately in the context of their statutory basis and their accompanying commentary. Thus, this holding was not inconsistent with cases interpreting guideline section 5K1.1. In reviewing the specific sentence of imprisonment imposed upon revocation of supervised release, an appellate court will not reverse if it can be determined from the record to have been reasoned and reasonable. Here, although the district court did not specifically reference guideline section 7B1.4 in its order, it was clear that the court considered the provisions of Chapter 7. The court explicitly listed the factors it did consider in sentencing defendant, including defendant’s breach of the court’s trust, his history of criminal conduct, and the need to follow through with its previous threat if defendant continued to use drugs. This explanation was sufficiently reasoned to satisfy the requirements of 18 U.S.C. section 3553. U.S. v. Lee, 957 F.2d 770 (10th Cir. 1992).
11th Circuit says possessing unregistered sawed-off shotgun is a crime of violence. (180) Defendant pled guilty to being a felon in possession of a handgun. The district court enhanced his sentence under guideline § 2K2.1(a) (4)(A), finding defendant’s 2006 felony conviction for possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. § 5861(d), qualified as a crime of violence. The Eleventh Circuit agreed. The commentary to § 4B1.2 explicitly states that “[u]nlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a ‘crime of violence.'” The Commission amended the commentary to include this language in 2004, to give effect to the congressional determination that the “firearms described in 26 U.S.C. § 5845(a) are inherently dangerous and when possessed unlawfully, serve only violent purposes.” Under Stinson v. U.S., 508 U.S. 36 (1993), the guidelines commentary was authoritative. U.S. v. Hall, 714 F.3d 1270 (11th Cir. 2013).
11th Circuit holds that conviction incurred after current crime was “prior offense.” (180) In 1993, defendant robbed a man in New York. He used the victim’s stolen identification to purchase firearms in North Carolina and Florida. In December 1995, he pled guilty to first degree robbery for his conduct in New York. Authorities returned him to Florida, where he pled guilty to federal firearms charges. Section 2K2.1(a)(4)(A) provides for a base offense level of 20 if the defendant “had one prior felony conviction of either a crime of violence or a controlled substance offense.” Defendant argued that the New York robbery was not a “prior conviction” because the conviction occurred after he committed the federal offense. The Eleventh Circuit held that the 1995 robbery sentence was a prior conviction for § 2K2.1(a) purposes because it qualified for criminal history points under § 4A1.1. Although the Sixth Circuit has held that the use of the words “had” and “prior” only refers to felony convictions occurring before the federal offense was committed, the majority of circuits have found § 2K2.1(a) to be ambiguous and have looked to the commentary for guidance. Note 5 to § 2K2.1 directs the sentencing court to count any “prior conviction” that receives criminal history points under § 4A1.1. Circuit caselaw has interpreted § 4A1.1(a) to impose criminal history points for sentences imposed before the time of sentencing rather than before the time of the federal offense. U.S. v. Laihben, 167 F.3d 1364 (11th Cir. 1999).
11th Circuit holds amendment to § 3553 did not make Chapter 7 policy statements binding. (180) After revoking defendants’ supervised release, the district court imposed sentences that exceeded the ranges set forth in Chapter 7 of the guidelines. Defendants argued that recent Supreme Court decisions and an amendment to 18 U.S.C. § 3553(a)(4)(B) made the policy statements in Chapter 7 binding. The Eleventh Circuit disagreed. The argument concerning the Supreme Court cases was frivolous because it was rejected in U.S. v. Milano, 32 F.3d 1499 (11th Cir. 1994). Congress amended § 3553 with the clear understanding that courts have consistently distinguished guidelines from mere policy statements. U.S. v. Hofierka, 83 F.3d 357 (11th Cir. 1996).
11th Circuit relies on post-conduct amendment to commentary. (180) In November 1991, after defendant was sentenced, application note 7(b) was added to section 2F1.1, explaining how to calculate loss in the case of fraudulent loan applications and contract procurement. The 11th Circuit viewed the amendment as merely clarifying. Because the court had not yet interpreted the guideline, it referred to the amendment to guide its interpretation of the guideline in effect at the time defendant was sentenced. It concluded that the district court had properly applied the guideline. U.S. v. Menichino, 989 F.2d 438 (11th Cir. 1993).
11th Circuit refuses to follow amended commentary prohibiting obstruction enhancement for destruction of evidence. (180) At the time of his arrest, defendant attempted to hand his jacket to a couple standing nearby. The jacket contained drugs. The 11th Circuit affirmed the enhancement, despite a November 1990 amendment to the commentary to section 3C1.1 which would seem to prohibit the enhancement in such a situation. That commentary provides that an attempt to dispose of material evidence made contemporaneously with arrest, shall not, by itself, be grounds for an obstruction enhancement. Since the 11th Circuit previously determined as a matter of law that an attempt to destroy evidence just before arrest constituted obstruction of justice, the court declined to be bound by guideline commentary changes unless or until Congress amends the guideline itself to reflect the change. U.S. v. Louis, 967 F.2d 1550 (11th Cir. 1992).
11th Circuit says that “Don’t do anything funny or I’ll be back” is not an express threat of death. (180) Defendant received an enhancement under section 2B3.1(b)(2)(D) for making an express threat of death during a robbery. The 11th Circuit reversed, ruling that his statement to the bank teller, “Don’t do anything funny or I’ll be back,” was not an express threat of death. The court declined to read broadly the commentary that applies to enhancement for defendants who have instilled “significantly greater fear than that necessary to constitute an element of the offense of robbery.” The commentary to the guidelines does not have the force of law, but serves as an aid in interpreting the guidelines. Here, section 2B3.1(b)(2)(D) was not ambiguous, and a broad reading of the commentary might conflict with the clear language of the guideline. Thus, the court interpreted the commentary narrowly to apply the enhancement only to defendants who have engaged in conduct that would instill in the victim a reasonable fear for his or her life. The threat to come back was not an express threat of death. While it implied physical harm, and may well have implied death, the threat of death was not direct, distinct or express. U.S. v. Tuck, 964 F.2d 1079 (11th Cir. 1992).
D.C. Circuit rules cross-reference in kidnapping commentary is inconsistent with guideline. (180) The district court grouped together defendant’s offenses relating to the kidnapping and attempted murder of a young woman. Section 2A4.1(b)(7)(B) says that if another offense was committed during the kidnapping, the court should cross-reference the guideline applicable to other offense if it would result in a greater offense level. Note 5 to § 2A4.1 states that if the offense involved a conspiracy to kidnap for the purpose of committing murder, or if an offense involved a kidnapping during which a participant attempted to murder the victim under circumstances that would have constituted first-degree murder, subsection (b)(7) would reference the first-degree murder guideline and result in an offense level of 43. The D.C. Circuit rejected Note 5 as inconsistent with § 2A4.1(7)(B), which expressly directs the court to cross-reference the guideline applicable the crime actually committed. See also U.S. v. Smith, 184 F.3d 415 (5th Cir. 1999). In this case, the other crime actually committed was attempted murder. Under Stinson v. U.S., 508 U.S. 36 (1993), “if the commentary and the guidelines it interprets are inconsistent in that following one will result in violating the dictates of the other, the Sentencing Reform Act itself commands compliance with the guideline.” Because the guideline and not the commentary controlled, the district court erred in cross-referencing the first-degree murder guideline. U.S. v. Fields, 242 F.3d 393 (D.C. Cir. 2001), clarified on rehearing by U.S. v. Fields, 251 F.3d 1041 (D.C. Cir. 2001).
D.C. Circuit holds “prior felony conviction” includes offense committed after current offense. (180) In February 1995, defendant exchanged drugs for a stolen machine gun. In March 1995, he was involved in an altercation that led to a state felony assault conviction. In October 1995, he was sentenced for the assault. In April 1997, he was indicted and pled guilty to federal firearms charges arising from the February 1995 machine gun transaction. Section 2K2.1(a)(1) provides for an enhanced offense level if defendant has two “prior felony convictions” of either a crime of violence or a drug offense. Defendant argued that the assault conviction was not a “prior felony conviction” because he had not even committed the assault when he committed the current firearms offense. The D.C. Circuit held that the commentary to § 2K2.1 clearly directs courts to include offenses committed after the current offense, as long as the defendant was convicted prior to his sentencing for the current offense. Note 5 says that for purposes of determining the number of prior felony convictions under § 2K2.1(a)(1), the court should count any prior conviction that receives points under § 4A1.1. Note 1 to § 4A1.2 defines “prior sentence of imprisonment” as “a sentence imposed prior to sentencing on the instant offense.” Since the language of § 2K2.1(a) is ambiguous with respect to whether the 1995 conviction counts, there is no “flat inconsistency” between the guideline and its commentary. The commentary is therefore authoritative. U.S. v. Pugh, 158 F.3d 1308 (D.C. Cir. 1998).
Commission adopts Stinson amendment to stress authoritative nature of commentary. (180) On November 1, 1993, the Sentencing Commission adopted an amendment to section 1B1.7, stressing that under Stinson v. U.S., 113 S.Ct. 1913 (1993), the commentary to the guidelines is authoritative and binding on the courts.