1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-2-1998

United States v. Marmolejos

Precedential or Non-Precedential:

Docket 96-1735

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Recommended Citation

"United States v. Marmolejos" (1998). 1998 Decisions. Paper 67.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/67
Filed 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 Appellee 
OPINION OF THE COURT 

RENDELL, Circuit Judge: 

This appeal raises the issue of whether the defendant, 

Freddie Marmolejos, is entitled to relief under 28 U.S.C. 

S 2255 and resentencing by the district court, in light 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 existing 

application note, rather than effecting a substantive change 

in the law, Marmolejos is entitled to relief and resentencing. 

Accordingly, we will reverse the district court and remand 

for resentencing with consideration given to the amendment 

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 distribute 

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. Using this 

5.00 kg figure, the district court sentenced Marmolejos in 

October 1991 to 126 months in prison, based upon the 

version of Application Note 12 to U.S.S.G. S 2D1.1 that was 

in effect at that time. After we affirmed the conviction 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 motion 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 should have 

_________________________________________________________________ 

1. Marmolejos was not subject to the new restrictions on successive 

habeas petitions contained in the Antiterrorism and Effective Death 

Penalty Act of 1996, because his second habeas petition was filed five 

days prior to the April 24, 1996, date on which the Act took effect. 

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been based solely on the 4.96 kg of cocaine he actually 

distributed, rather than on the 5.00 kg of cocaine he 

intended to distribute as a member of the conspiracy. The 

difference was weighty, for Marmolejos's sentence could 

have been reduced by five to twenty-nine months if he was 

correct.2 In support of his claim, Marmolejos argued that 

Amendment 518 to the Guidelines, which changed 

Application Note 12 effective November 1, 1995, should 

apply to his offense, and that he should be resentenced so 

that the amendment could be applied in sentencing him. 

The district court, though, rejected Marmolejos's contention 

and denied both his habeas motion and his motion for 

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 over the 

appeal pursuant to 28 U.S.C. S 2253(a), and we exercise 

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 establishes 

the base offense level for defendants who act as parties 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 negotiation to 

traffic in narcotics.3 Prior to November 1995, Application 

Note 12 provided as follows: 

_________________________________________________________________ 

2. The 4.96 kg figure which Marmolejos posited yields a base offense 

level of thirty, whereas the 5.00 kg figure on which he was sentenced 

yields a level of thirty-two. The guideline range for a base offense level 

thirty with a criminal history category of one is 97-121 months. U.S. 

Sentencing Guidelines Manual S 5A (1998). Thus, because 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 address, the district 

court's reliance on this application note in determining the appropriate 

 3 
 In an offense involving negotiation to traffic in a 

 controlled substance, the weight under negotiation in 

 an uncompleted distribution shall be used to calculate 

 the applicable amount. However, where the courtfinds 

 that the defendant did not intend to produce and was 

 not reasonably capable of producing the negotiated 

 amount, the court shall exclude from the guideline 

 calculation the amount that it finds the defendant did 

 not intend to produce and was not reasonably capable 

 of producing. 

U.S. Sentencing Guidelines Manual app. C at 858 (1998). 

Attempting to follow this application note in sentencing 

Marmolejos, the district court used "the weight under 

negotiation" -- namely, 5.00 kg -- as the relevant quantity. 

However, four years after Marmolejos was sentenced,

Amendment 518 to the Guidelines deleted the language of 

Application Note 12 and inserted a new set of instructions 

in its place. As amended, the application note now reads: 

 In an offense involving an agreement to sell a 

 controlled substance, the agreed-upon quantity of the 

 controlled substance shall be used to determine the 

 offense level unless the sale is completed and the 

 amount delivered more accurately reflects the scale of 

 the offense. For example, a defendant agrees to sell 500 

 grams of cocaine, the transaction is completed by the 

 delivery of the controlled substance - actually 480 

 grams of cocaine, and no further delivery is scheduled. 

 In this example, the amount delivered more accurately 

 reflects the scale of the offense. In contrast, in a 

 reverse sting, the agreed-upon quantity of the 

 controlled substance would more accurately reflect the 

 scale of the offense because the amount actually 

 delivered is controlled by the government, not by the 

 defendant. If, however, the defendant establishes that 

 he or she did not intend to provide, or was not 

_________________________________________________________________ 

sentence for Marmolejos. It appears that because of the unusual facts 

here -- namely, that Marmolejos was convicted of conspiracy but 

acquitted of the underlying offense -- negotiation to traffic is the most 

apt description of Marmolejos's offense. 

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 reasonably capable of providing, the agreed-upon 

 quantity of the controlled substance, the court shall 

 exclude from the offense level determination the 

 amount of controlled substance that the defendant 

 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 Commission's 

failure to provide for completed distributions in the 

application notes. He maintains further that if we agree 

that this is a clarifying amendment, we should remand for 

resentencing so as to give the sentencing court the

opportunity to consider the additional clarifying language. 

Marmolejos's argument is based on the established 

principle that a post-sentencing amendment to a 

sentencing guideline or its comments should be given 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 not reap 

the benefit of the new provision. See U.S. Sentencing 

Guidelines Manual S 1B1.11(b)(2) (1998); Isabel v. United 

States, 980 F.2d 60, 62 (1st Cir. 1992) (holding that this is 

the rule in "virtually all circuits"); United States v. 

Ofchinick, 877 F.2d 251, 257 n.9 (3d Cir. 1989). 

The district court did not employ this test, but, rather, 

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 -- the 

change had no impact on Marmolejos's sentence. Yet the 

law is clear that "courts can give retroactive effect to a 

clarifying (as opposed to substantive) amendment 

regardless of whether it is listed in U.S.S.G. S 1B1.10." 

United States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 

1995), cert. denied, 116 S. Ct. 1830 (1996). Moreover, as 

Marmolejos has noted and as the government has 

conceded, S 1B1.10 is not relevant to our consideration of 

the instant S 2255 motion, because Marmolejos does not 

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base his motion on a post-sentence amendment lowering 

the guideline range applicable to his offense. He seeks 

review only of whether the court used the proper drug 

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 Guidelines 

or substantively changed its meaning. If the former, 

Marmolejos's petition for habeas relief should be granted 

and the district court should consider the amendment at a 

resentencing hearing. If the latter, Marmolejos's motion 

should be denied and the amendment should be given no 

effect. 

B. 

There is no bright-line test for determining whether an 

amendment to the Guidelines "clarifies" the existing law; 

"these categories [are] unclear, and as is usually the case, 

there are factors supporting either side." United States 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, 694-95 

(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 effect at 

that time is really consistent with the amended manual." 

United States v. Bertoli, 40 F.3d 1384, 1405 (3d Cir. 1994). 

Under the former version of Application Note 12, the 

Sentencing Commission had addressed only "the weight 

under negotiation in an uncompleted transaction" as the 

basis to calculate the applicable amount for sentencing, 

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 court 

should consider in sentencing a defendant convicted of 

participating in a completed transaction. Thus, the terms of 

the previous application note were facially ambiguous; the 

note spoke only to uncompleted deals. 

By contrast, the amended commentary provides that "the 

agreed-upon quantity of the controlled substance shall be 

 6 
used 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 delivered, 

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 by the 

preceding version of the application note. 

Marmolejos's argument that the removal of the ambiguity 

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 would 

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 completed 

transaction," and concluded that "until Application Note 12 

was amended, the appropriate weight of drugs to consider 

in a completed transaction was ambiguous; a court might 

sentence on the amount under negotiation or the amount 

delivered." Id. at 1060. Thus, it, too, held that "by 

specifying the weight to consider in a completed 

transaction, the current version of Application Note 12 

clarifies the Guidelines, and should be given retroactive 

effect." Id.4 

_________________________________________________________________ 

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 adopted, in part, 

because "[d]isputes over the interpretation of this application note have 

produced much litigation." U.S. Sentencing Guidelines Manual app. C at 

860 (1998). Felix concluded that this demonstrated that Amendment 518 

was intended to clarify an ambiguity under the prior 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 split concerning the 

burden of proof in S 2D1.1, not to disputes as to the calculation of drug 

quantities as such. Consequently, unlike the Felix court, we do not find 

the Sentencing Commission's comments helpful in resolving the issue 

before us. 

 7 
The 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 that 

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 drugs 

when calculating the base offense level for a defendant 

involved in a completed transaction. See, e.g., United States 

v. Buggs, 904 F.2d 1070, 1078 (7th Cir. 1990); United 

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 sold, 

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 not mean 

that the new wording has fashioned a substantive change 

to the Guidelines. In fact, one could posit that quite 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 alter the 

practice of the courts in construing S 2D1.1, and may even 

reverse the caselaw interpreting Application Note 12, it is 

the text of the amendment -- not the courts' gloss on that 

text -- that ultimately determines whether the amendment 

is a clarification or a substantive revision.6 

_________________________________________________________________ 

5. In fact, most of these courts simply assumed that 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, shall be used to 

calculate the total mount [sic] in order to determine the base level." 

United States v. Perez, 871 F.2d 45, 48 (6th Cir. 1989). 

6. It should be noted that the evolving caselaw would be viewed 

differently if the new language raised ex post facto issues by resulting 

in 

an increase in the defendant's sentence. Here, however, we have no ex 

post facto concerns, because application of Amendment 518 would 

reduce, rather than increase, Marmolejos's term of imprisonment. 

 8 
We 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 that 

reached by a prior panel. The defendant in Joshua argued 

that the district court should have used an amendment to 

U.S.S.G. S 4B1.2 clarifying the definition of a "crime 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 court." Id. at 

852. Nevertheless, after reviewing the Sentencing 

Commission's role in the statutory scheme, we concluded 

that the Commission, like an administrative agency, has 

the authority to overturn precedent in order to clarify an 

ambiguity in the law and to promote uniformity in the 

application of a statute. Id. at 855. Indeed, "[w]here a prior 

panel of this court has interpreted an ambiguous statute in 

one way, and the responsible administrative agency later 

resolves the ambiguity another way, this court is not bound 

to close its eyes to the new source of enlightenment." 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 Amendment 

518 evinces an intent to create a substantive change in the 

_________________________________________________________________ 

7. The Supreme Court has since disagreed in part with the analogy we 

employed in Joshua, writing that the Sentencing Commission's 

commentary in the Guidelines is more "akin to an agency's interpretation 

of its own legislative rules," rather than to an agency's construction of 

a 

federal statute that it administers. Stinson v. United States, 508 U.S. 

36, 

44-45 (1993). Nevertheless, Sentencing Commission commentary still 

remains "controlling authority," id. at 45, that is to be applied in all 

but 

the most limited circumstances. Id. at 38. Therefore, we believe that the 

basic principle of Joshua remains good law; because of the Sentencing 

Commission's broad power to interpret the Guidelines, clarifying 

amendments should be considered by the sentencing court despite any 

conflict with established precedent, unless ex post facto concerns are 

present. 

 9 
law. The Sentencing Commission's explanation of 

Amendment 518 states that "this amendment revises the 

Commentary to S 2D1.1 to provide that in a case involving 

negotiation for a quantity of a controlled substance, the 

negotiated quantity is used to determine the offense level 

unless the completed transaction establishes a different 

quantity." U.S. Sentencing Guidelines Manual app. C at 

860 (1998) (emphasis added). The government asserts that 

the Sentencing Commission used the word "revises" to 

illustrate that Amendment 518 effected a substantive 

change. Had the Commission intended merely to clarify the 

existing guideline, the government argues, it would have 

used the term "clarifies" rather than the term "revises," as 

it did in drafting several other amendments. 

We disagree. As an initial matter, the manner in which 

the Commission describes a guideline amendment is not 

dispositive. As we made clear in Bertoli, "our own 

independent interpretation of the pre-amendment language 

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 analysis. 

Additionally, the Commission's use of the term "revises" 

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 we 

respond: of course it does. It "revises" the commentary in 

the same way that every amendment revises the 

commentary -- by changing, altering, or modifying the text. 

The amendment does not say that it `revises the method 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 Guidelines. 

Rather, it states simply that it "revises the Commentary" 

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 change the 

law. 

The line between a clarification and a revision may be a 

fine one, but we believe the difference can be discerned in 

this case. Amendment 518 does not change the method for 

calculating amounts involved in uncompleted sales, but 

 10 
merely clarifies the proviso for completed ones. Accordingly, 

we conclude that Amendment 518 to the Sentencing 

Guidelines represents a clarification of the previous 

application note, because it fills a void and resolves an 

ambiguity in S 2D1.1 regarding the proper weight of drugs 

for a court to consider in sentencing a defendant involved 

in a completed narcotics transaction. 

III. 

The district court's Orders dated June 11, 1996, and 

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 

 11