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. e du/thir dc ir c uit_1998/67Filed April 2, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-1735

UNITED STATES OF AMERICA

v.

FREDDIE MARMOLEJOS, Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 90-442-2)

Argued: January 30, 1998

Before: SCIRICA, ROTH, AND RENDELL, Circuit Judges

(Opinion Filed: April 2, 1998)

Stephen Robert LaCheen Anne M. Dixon (ARGUED) Lewis Tower Building, 31st Floor
225 South 15th Street Philadelphia, PA 19102 Attorneys for Appellant

Walter S. Batty, Jr. Amy L. Kurland (ARGUED) Office of the United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 Attorneys for AppelleeOPINION OF THE COURT

RENDELL, Circuit Judge:

This appeal raises the issue of whether the defenda nt, Freddie Marmolejos, is entitled to relief under 28 U.S.C. S 2255 and resentencing by the district court, in l ight of a post-sentencing amendment to the application notes to S 2D1.1 of the United States Sentencing Guidelines.
Because we hold that the amendment clarified the ex isting application note, rather than effecting a substanti ve change in the law, Marmolejos is entitled to relief and re sentencing. Accordingly, we will reverse the district court and remand for resentencing with consideration given to the am endment to the application note.

I.

In June 1991 Marmolejos was convicted of conspiracy to
distribute cocaine in violation of 21 U.S.C. S 846. The jury found him not guilty of possession with intent to d istribute
cocaine under 21 U.S.C. S 841. The evidence showed that he had negotiated a purchase of 5.00 kg of cocaine but had delivered only 4.96 kg at the time of the sale. Usi ng this 5.00 kg figure, the district court sentenced Marmol ejos in October 1991 to 126 months in prison, based upon th e version of Application Note 12 to U.S.S.G. S 2D1.1 that was
in effect at that time. After we affirmed the convi ction in August 1992, Marmolejos challenged his sentence by filing a petition in March 1995 for habeas relief under 28 U.S.C. S 2255. However, the district court denied the moti on and
we affirmed.

In April 1996 Marmolejos then filed a second S 2255
habeas motion for relief from the district court's judgment.1 He contended that his sentencing offense level shou ld have

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1. Marmolejos was not subject to the new restrictio ns on successive habeas petitions contained in the Antiterrorism and Effective Death Penalty Act of 1996, because his second habeas peti tion was filed five days prior to the April 24, 1996, date on which the Act took effect.

2been based solely on the 4.96 kg of cocaine he actu ally

distributed, rather than on the 5.00 kg of cocaine he intended to distribute as a member of the conspirac y. The difference was weighty, for Marmolejos's sentence c ould have been reduced by five to twenty-nine months if he was correct.2 In support of his claim, Marmolejos argue d that Amendment 518 to the Guidelines, which changed Application Note 12 effective November 1, 1995, sho uld apply to his offense, and that he should be resente nced so that the amendment could be applied in sentencing h im. The district court, though, rejected Marmolejos's c ontention
and denied both his habeas motion and his motion fo r reconsideration, holding that the amendment was not to be given retroactive effect. Marmolejos then filed an appeal, which we agreed to consider. We have jurisdiction o ver the appeal pursuant to 28 U.S.C. S 2253(a), and we exer cise plenary review of the district court's ruling. See United States v. Higgins, 128 F.3d 138, 139 (3d Cir. 1997) ; United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997), cert. denied, 118 S. Ct. 722 (1998).

II.

A.

Section 2D1.1 of the Sentencing Guidelines establis hes the base offense level for defendants who act as pa rties to an agreement or conspiracy to sell narcotics, based upon the quantity of drugs involved. Application Note 12 to S 2D1.1 addresses the method of determining the appropriate quantity if the offense involves negoti ation to traffic in narcotics.3 Prior to November 1995, Appl ication Note 12 provided as follows:

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2. The 4.96 kg figure which Marmolejos posited yiel ds a base offense level of thirty, whereas the 5.00 kg figure on whic h he was sentenced yields a level of thirty-two. The guideline range f or a base offense level thirty with a criminal history category of one is 9 7-121 months. U.S. Sentencing Guidelines Manual S 5A (1998). Thus, bec ause Marmolejos was sentenced to 126 months in prison, his sentence could have been reduced by anywhere from five to twenty-nine months

.

3. The parties have not challenged, nor do we addre ss, the district court's reliance on this application note in determ ining the appropriate

3In an offense involving negotiation to traff ic in a

controlled substance, the weight under negot iation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the co urtfinds that the defendant did not intend to produce and was not reasonably capable of producing the nego tiated amount, the court shall exclude from the gui deline
calculation the amount that it finds the def endant did not intend to produce and was not reasonably capable of producing.

U.S. Sentencing Guidelines Manual app. C at 858 (19 98).

Attempting to follow this application note in sente ncing Marmolejos, the district court used "the weight und er negotiation" -- namely, 5.00 kg -- as the relevant quantity. However, four years after Marmolejos was sentenced, Amendment 518 to the Guidelines deleted the languag e of Application Note 12 and inserted a new set of instr uctions in its place. As amended, the application note now reads:

In an offense involving an agreement to sell a controlled substance, the agreed-upon quanti ty of the

controlled substance shall be used to determ ine the offense level unless the sale is completed a nd the amount delivered more accurately reflects th e scale of the offense. For example, a defendant agrees to sell 500 grams of cocaine, the transaction is complet ed by the delivery of the controlled substance - actua lly 480 grams of cocaine, and no further delivery is scheduled. In this example, the amount delivered more a ccurately

reflects the scale of the offense. In contra st, in a reverse sting, the agreed-upon quantity of t he controlled substance would more accurately r eflect the

scale of the offense because the amount actu ally delivered is controlled by the government, n ot by the defendant. If, however, the defendant establ ishes that he or she did not intend to provide, or was not

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sentence for Marmolejos. It appears that because of the unusual facts here -- namely, that Marmolejos was convicted of co nspiracy but acquitted of the underlying offense -- negotiation to traffic is the most apt description of Marmolejos's offense.

4reasonably capable of providing, the agreed- upon

quantity of the controlled substance, the co urt shall
exclude from the offense level determination the

amount of controlled substance that the defe ndant
establishes that he or she did not intend to provide or was not reasonably capable of providing.

Id. (emphasis added).

Marmolejos argues that this new language "clarifies " the prior guideline in that it provides for the test in a completed distribution, which his was, so as to clear up the ambiguity that previously existed due to the Sentencing Commi ssion's failure to provide for completed distributions in t he application notes. He maintains further that if we agree that this is a clarifying amendment, we should rema nd for resentencing so as to give the sentencing court the opportunity to consider the additional clarifying l anguage.

Marmolejos's argument is based on the established principle that a post-sentencing amendment to a sentencing guideline or its comments should be give n effect if it "clarifies" the guideline or comment in place at the time of sentencing. If, however, the amendment effects a substantive change in the law, the defendant does n ot reap the benefit of the new provision. See U.S. Sentenci ng Guidelines Manual S 1B1.11(b)(2) (1998); Isabel v. United States, 980 F.2d 60, 62 (1st Cir. 1992) (holding th at this is the rule in "virtually all circuits"); United State s v. Ofchinick, 877 F.2d 251, 257 n.9 (3d Cir. 1989).

The district court did not employ this test, but, r ather,
held that because Amendment 518 was not listed in S 1B1.10 of the Guidelines -- which specifies the
amendments that are to have retroactive effect -- t he change had no impact on Marmolejos's sentence. Yet the law is clear that "courts can give retroactive effe ct to a clarifying (as opposed to substantive) amendment regardless of whether it is listed in U.S.S.G. S 1B 1.10." United States v. Capers, 61 F.3d 1100, 1109 (4th Ci r. 1995), cert. denied, 116 S. Ct. 1830 (1996). Moreov er, as Marmolejos has noted and as the government has conceded, S 1B1.10 is not relevant to our considera tion of the instant S 2255 motion, because Marmolejos does not

5base his motion on a post-sentence amendment loweri ng

the guideline range applicable to his offense. He s eeks review only of whether the court used the proper dr ug quantity in calculating his prison term. Therefore, the sole question before us is whether Amendment 518 has, by its terms, clarified the existing commentary in the Gui delines or substantively changed its meaning. If the former
, Marmolejos's petition for habeas relief should be g ranted
and the district court should consider the amendmen t at a resentencing hearing. If the latter, Marmolejos's m otion should be denied and the amendment should be given no effect.

B.

There is no bright-line test for determining whethe r an amendment to the Guidelines "clarifies" the existin g law; "these categories [are] unclear, and as is usually the case, there are factors supporting either side." United S tates v. Prezioso, 989 F.2d 52, 53 (1st Cir. 1993) (citation omitted). Among other things, the courts look to the language of the amendment, United States v. Nissen, 928 F.2d 690, 6 94-95 (5th Cir. 1991), the amendment's purpose and effect
, Capers, 61 F.3d at 1110, and "whether, as a matter of construction, the guideline and commentary in effec t at that time is really consistent with the amended man ual." United States v. Bertoli, 40 F.3d 1384, 1405 (3d Ci r. 1994).

Under the former version of Application Note 12, th e Sentencing Commission had addressed only "the weigh t under negotiation in an uncompleted transaction" as the basis to calculate the applicable amount for senten cing, unless the defendant "did not intend to produce and was not reasonably capable of producing" this amount. U .S. Sentencing Guidelines Manual app. C at 858 (1998) (emphasis added). The prior text of the application note provided no guidance as to what amount of drugs a c ourt should consider in sentencing a defendant convicted of participating in a completed transaction. Thus, the terms of the previous application note were facially ambiguo us; the note spoke only to uncompleted deals.

By contrast, the amended commentary provides that " the agreed-upon quantity of the controlled substance sh all be

6used to determine the offense level unless the sale is

completed and the amount delivered more accurately

reflects the scale of the offense." Id. As a result , Application Note 12 now specifies that the actual weight delive red, rather than the weight under negotiation, should be used for calculating a defendant's sentence if the sale was completed. Marmolejos argues that this change fills a textual void in the language of the commentary and clarifies the Guidelines by resolving the ambiguity created b y the preceding version of the application note.

Marmolejos's argument that the removal of the ambig uity
renders the amendment a clarification is buttressed by the opinion of the only other circuit to have addressed this issue. In United States v. Felix, 87 F.3d 1057 (9th Cir. 1996), the defendant, like Marmolejos, argued for application of Amendment 518 so that his sentence w ould be calculated with reference to the amount of drugs actually delivered, rather than by reference to the weight of the drug sale he had negotiated. The Ninth Circuit noted that the "prior version of Application Note 12 was silent as to the amount of cocaine to be considered in a comp leted transaction," and concluded that "until Application Note 12 was amended, the appropriate weight of drugs to con sider in a completed transaction was ambiguous; a court m ight sentence on the amount under negotiation or the amo unt delivered." Id. at 1060. Thus, it, too, held that " by specifying the weight to consider in a completed transaction, the current version of Application Not e 12 clarifies the Guidelines, and should be given retro active

effect." Id.4

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4. Felix also found support for this conclusion in a statement from the Sentencing Commission regarding Amendment 518. The Sentencing Commission had written that Amendment 518 was adopt ed, in part, because "[d]isputes over the interpretation of this application note have produced much litigation." U.S. Sentencing Guidelin es Manual app. C at 860 (1998). Felix concluded that this demonstrated that Amendment 518 was intended to clarify an ambiguity under the prio r commentary. 87 F.3d at 1060. However, a review of the eight cases cited in the comment reveals that the "disputes" referred to a circuit s plit concerning the burden of proof in S 2D1.1, not to disputes as to t he calculation of drug quantities as such. Consequently, unlike the Felix court, we do not find the Sentencing Commission's comments helpful in res olving the issue

before us.

7The government advances two arguments in support of

its view that the amendment effected a substantive change in the law, rather than a clarification. First, the government claims that Amendment 518 substantively changed the Guidelines because it revised the note in a way tha t conflicted with the developing caselaw. Most courts construing the prior version of Application Note 12 had held that a court should use the negotiated amount of dr ugs when calculating the base offense level for a defen dant involved in a completed transaction. See, e.g., Uni ted States v. Buggs, 904 F.2d 1070, 1078 (7th Cir. 1990); Unit ed States v. Alvarez-Cardenas, 902 F.2d 734, 736 (9th Cir. 1990); United States v. Alston, 895 F.2d 1362, 1369 -71 (11th Cir. 1990).5 Therefore, the government argues , the amendment necessarily changed the law by requiring the
courts to consider the actual amount of narcotics s old, rather than the amount negotiated, when sentencing defendants convicted of participating in completed deals.

Our answer to this, however, is that merely because the courts were resolving an ambiguity in the prior law by supplying a meaning that was neither stated in, nor clear from, the language of the application note, does no t mean that the new wording has fashioned a substantive ch ange to the Guidelines. In fact, one could posit that qu ite the opposite was the case -- that the new language was fashioned to clarify the ambiguity made apparent by the caselaw. In any event, while Amendment 518 may alte r the practice of the courts in construing S 2D1.1, and m ay even reverse the caselaw interpreting Application Note 1 2, it is the text of the amendment -- not the courts' gloss on that text -- that ultimately determines whether the amen dment
is a clarification or a substantive revision.6

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5. In fact, most of these courts simply assumed tha t Application Note 12 required using the negotiated quantity in completed transactions, writing that "[u]nder the sentencing guidelines, the amount of the drug being negotiated, even in an uncompleted distribution, sh all be used to calculate the total mount [sic] in order to determi ne the base level." United States v. Perez, 871 F.2d 45, 48 (6th Cir. 1 989).

6. It should be noted that the evolving caselaw wou ld be viewed differently if the new language raised ex post fact o issues by resulting

in an increase in the defendant's sentence. Here, howe ver, we have no ex post facto concerns, because application of Amendme nt 518 would reduce, rather than increase, Marmolejos's term of imprisonment.

8We explored a similar dilemma in United States v.

Joshua, 976 F.2d 844 (3d Cir. 1992), where we held that a court could consider a change to a guideline's text despite
the fact that it mandated a result different from t hat reached by a prior panel. The defendant in Joshua a rgued
that the district court should have used an amendme nt to U.S.S.G. S 4B1.2 clarifying the definition of a "cr ime of
violence" to lower his sentence under the Guideline 's career offender provisions. The difficulty was that, "[u]nfortunately, this amendment to the commentary urge[d] us to interpret the guideline in a manner
inconsistent with two recent decisions of this cour t." Id. at 852. Nevertheless, after reviewing the Sentencing Commission's role in the statutory scheme, we concl uded that the Commission, like an administrative agency, has the authority to overturn precedent in order to cla rify an ambiguity in the law and to promote uniformity in t he application of a statute. Id. at 855. Indeed, "[w]h ere a prior panel of this court has interpreted an ambiguous st atute in one way, and the responsible administrative agency later resolves the ambiguity another way, this court is n ot bound to close its eyes to the new source of enlightenmen t." Id.7 Therefore, we do not view the inconsistency between the caselaw and the amendment to Application Note 12 as requiring a conclusion that the amendment works a substantive change.

We are similarly unpersuaded by the government's second contention -- that the commentary to Amendme nt 518 evinces an intent to create a substantive chang e in the

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7. The Supreme Court has since disagreed in part wi th the analogy we employed in Joshua, writing that the Sentencing Com mission's commentary in the Guidelines is more "akin to an ag ency's interpretation of its own legislative rules," rather than to an ag ency's construction of

a federal statute that it administers. Stinson v. Uni ted States, 508 U.S. 36, 44-45 (1993). Nevertheless, Sentencing Commission c ommentary still remains "controlling authority," id. at 45, that is to be applied in all

but
the most limited circumstances. Id. at 38. Therefor e, we believe that the basic principle of Joshua remains good law; because of the Sentencing Commission's broad power to interpret the Guideline s, clarifying amendments should be considered by the sentencing c ourt despite any conflict with established precedent, unless ex post facto concerns are present.

9law. The Sentencing Commission's explanation of

Amendment 518 states that "this amendment revises t he Commentary to S 2D1.1 to provide that in a case inv olving negotiation for a quantity of a controlled substanc e, the negotiated quantity is used to determine the offens e level unless the completed transaction establishes a diff erent quantity." U.S. Sentencing Guidelines Manual app. C at 860 (1998) (emphasis added). The government asserts that the Sentencing Commission used the word "revises" t o illustrate that Amendment 518 effected a substantiv e change. Had the Commission intended merely to clari fy the existing guideline, the government argues, it would have
used the term "clarifies" rather than the term "rev ises," as it did in drafting several other amendments.

We disagree. As an initial matter, the manner in wh ich the Commission describes a guideline amendment is n ot dispositive. As we made clear in Bertoli, "our own independent interpretation of the pre-amendment lan guage is controlling," 40 F.3d at 1407 n.21, and the mere fact
that an amendment is referred to as a clarification or a revision is ordinarily of slight import to our anal ysis.

Additionally, the Commission's use of the term "rev ises"
in this instance reveals little about the intended effect of
Amendment 518. The Commission states that Amendment 518 "revises the Commentary to S 2D1.1," to which w e respond: of course it does. It "revises" the commen tary in the same way that every amendment revises the commentary -- by changing, altering, or modifying t he text. The amendment does not say that it `revises the met hod by which the courts determine the correct quantity of drugs for sentencing purposes under S 2D1.1,' or that it revises the calculation of drug quantities under the Guidel ines. Rather, it states simply that it "revises the Comme ntary" language itself. Therefore, we do not believe that the
Commission's use of the term "revises" informs our decision as to whether its intent was to substantively chang e the

law.

The line between a clarification and a revision may be a fine one, but we believe the difference can be disc erned in this case. Amendment 518 does not change the method for calculating amounts involved in uncompleted sales, but

10merely clarifies the proviso for completed ones. Ac cordingly,

we conclude that Amendment 518 to the Sentencing Guidelines represents a clarification of the previo us application note, because it fills a void and resol ves an ambiguity in S 2D1.1 regarding the proper weight of drugs for a court to consider in sentencing a defendant i nvolved in a completed narcotics transaction.

III.

The district court's Orders dated June 11, 1996, an d July 29, 1996, will be REVERSED, the judgment of sentence will be VACATED, and the cause will be REMANDED for resentencing and other proceedings consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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