2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-27-2007

USA v. Floyd

Precedential or Non-Precedential: Precedential

Docket No. 06-1513

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Recommended Citation

"USA v. Floyd" (2007). 2007 Decisions. Paper 486.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-1513

 

UNITED STATES OF AMERICA

v.

BENNAE FLOYD,

Appellant.

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 02-cr-00295-6)

District Judge: Honorable Christopher C. Conner

 

Argued on January 22, 2007

Before: SCIRICA, Chief Judge, FUENTES and CHAGARES,

Circuit Judges.

(Filed: August 27, 2007)

John A. Abom (Argued)

Abom & Kutulakis

36 South Hanover Street
1

 We previously recited a more detailed procedural history

of this case in United States v. Floyd, 428 F.3d 513 (3d Cir. 2005)

(“Floyd I”).

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Carlisle, PA 17013

Attorney for Appellant

Christy H. Fawcett 

Lorna N. Graham (Argued)

Office of the United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Attorney for Appellee

 

OPINION OF THE COURT

 

FUENTES, Circuit Judge.

In this sentencing appeal, the District Court granted a

downward departure on account of Bennae Floyd’s substantial

assistance to the government, but sentenced her within the

originally calculated Guidelines range. In doing so, the Court

departed from a previously imposed sentence that we vacated in a

prior appeal. For the reasons that follow, we will again vacate and

remand for resentencing.

I. Factual and Procedural Background

In 2004, Floyd was indicted on various counts arising from

a conspiracy to distribute at least 50 grams of crack cocaine and 5

kilograms of cocaine powder.1

 Pursuant to a plea agreement, Floyd

pleaded guilty to just one count of traveling interstate or causing

others to travel interstate to facilitate drug trafficking, which

carried a maximum sentence of 60 months in prison. 18 U.S.C. §
2

 Guidelines Section § 5K1.1 provides that the government

may move for a downward departure when a defendant has

provided “substantial assistance in the investigation or prosecution

of another person who has committed an offense.” U.S. Sentencing

Guidelines Manual § 5K1.1 (2003). The day before entering her

plea, Floyd met with a co-defendant to persuade him to plead

guilty. That co-defendant, as well as two others, decided to plead

guilty shortly thereafter.

3

 Had Floyd been convicted of all charges set forth in the

indictment, she would have faced a potential Guidelines range of

292 to 365 months, as compared to the 60-month statutory

maximum she faced on the drug trafficking charge.

-3-

1952(a)(3). In exchange for pleading guilty, the government

agreed to dismiss the remaining charges and to request a downward

departure based on Floyd’s substantial assistance with the

government’s prosecution of her co-defendants.2

At Floyd’s sentencing hearing, however, the government did

not move for a downward departure—in the government’s view, its

dismissal of Floyd’s remaining charges resulted in a sufficient

reduction in her sentence.3

 With no departure motion before it, the

District Court calculated an applicable Guidelines range of 41 to 51

months and sentenced Floyd to 48 months in prison.

Floyd appealed, arguing that the government breached its

promise to move for a downward departure. Floyd I, 428 F.3d at

514. We agreed with Floyd, reasoning that “the [g]overnment did

not reserve the right not to recommend a downward departure on

the ground that the charge bargain turned out to be more favorable

than it had originally anticipated.” Id. at 517. We remanded to the

District Court to determine whether Floyd’s assistance was

“substantial.” Id. at 518. On remand, however, the government

chose to forego an evidentiary hearing and simply moved for the

downward departure.

At Floyd’s resentencing, the District Court incorporated its

prior rulings that established a Guidelines range of 41 to 51

months. With respect to the government’s motion to depart, it
4

 The District Court also stated that “I departed downward

approximately 12.5 percent from the original sentence, and that

also reflects a departure in the offense level. A departure of 10

percent results in a guideline range of 36.9 to 45.9 months. 12

-4-

ruled:

Assessing all the factors enumerated in section

5K1.1, and giving weight to the government’s

evaluation of the defendant’s assistance, the court

concludes that this case marginally meets the criteria

for a downward departure from the original sentence

of 48 months. Therefore the court will grant the

motion.

(App. 47-48.) As a result, the Court reduced the original sentence

of 48 months by 6 months. The Court then stated that the sentence

“satisfie[d] the purposes” of the factors outlined in 18 U.S.C. §

3553(a), and, without altering Floyd’s sentence further, imposed

the sentence of 42 months. (App. 52-53.)

Floyd’s attorney objected, arguing that despite having

granted the government’s departure motion, the Court had “in

essence . . . imposed a guideline sentence, just downward from the

initial sentence.” (App. 56.) Defense counsel asked whether the

Court had intended to “not downwardly depart . . . from the

guideline but simply depart downward from the initial sentence?”

(Id.) The Court responded that it had, in fact, granted a downward

departure, explaining:

The decision of 42 months does reflect a downward

departure, and we have the benefit of an original

sentence, and rather than go through the calculation

of what my offense level arrived at in terms of a

guideline, I thought it better just to give you the

specific sentence departure. So I don’t think it’s

accurate to say that the departure doesn’t reflect the

court’s assessment of the guideline range.

(App. 56-57.)4
percent would be slightly more than that.” (Id. at 56.)

-5-

On appeal, Floyd asks us to remand for resentencing

because the District Court never provided her the benefit of the

departure it granted.

II. Discussion

A.

The Supreme Court rendered the Sentencing Guidelines

advisory in United States v. Booker, 543 U.S. 220 (2005), and we

now review sentences for reasonableness, United States v. Cooper,

437 F.3d 324, 326-27 (3d Cir. 2005). In spite of these changes,

district courts must still calculate an applicable Guidelines range

and rule on any motions for departure. United States v. King, 454

F.3d 187, 196 (3d Cir. 2006). We have thus described post-Booker

sentencing as proceeding in the following three steps:

(1) Courts must continue to calculate a

defendant’s Guidelines sentence precisely as

they would have before Booker.

(2) In doing so, they must formally rule on the

motions of both parties and state on the

record whether they are granting a departure

and how that departure affects the Guidelines

calculation, and take into account our

Circuit’s pre-Booker case law, which

continues to have advisory force.

(3) Finally, they are required to exercise their

discretion by considering the relevant §

3553(a) factors in setting the sentence they

impose regardless whether it varies from the

sentence calculated under the Guidelines.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (internal

quotation marks, citations, and alterations omitted). This process

serves to clarify the basis for the sentence imposed. See United
5

 For example, in United States v. Colon, 474 F.3d 95 (3d

Cir. 2007), we held that a district court did not err in failing to

engage in a “ratcheting” procedure applicable to upward departures

because it imposed an above-Guidelines sentence as a variance, not

a departure. Id. at 99 & n.8. Moreover, in Vampire Nation, we

held that the notice requirement for upward departures would not

apply to variances. 451 F.3d at 197; see also Fed. R. Crim. Pro.

32(h). Importantly, we observed in Vampire Nation that

sentencing courts should “be careful to articulate whether a

sentence is a departure or a variance from an advisory Guidelines

range,” 451 F.3d at 198, and we have noted that this terminology

“aid[s] our review of criminal sentences.” Jackson, 467 F.3d at

837 n.2.

-6-

States v. Jackson, 467 F.3d 834, 838-39 (3d Cir. 2006). The

calculations of the first two steps provide “a natural starting point”

from which a court exercises its discretion at step three. Cooper,

437 F.3d at 331.

Under the advisory Guidelines regime, we have

distinguished between two types of sentence that diverge from the

original Guidelines range. See United States v. Vampire Nation,

451 F.3d 189, 195 & n.2 (3d Cir. 2006) (adopting distinction

between departures and variances). A traditional sentencing

“departure” diverges at step 2 from the originally calculated range

“for reasons contemplated by the Guidelines themselves.” Jackson,

467 F.3d at 837 n.2. In contrast, a “variance” diverges at step 3

from the Guidelines, including any departures, based on an exercise

of the court’s discretion under § 3553(a). Gunter, 462 F.3d at 247

n.10. Although a departure or a variance could, in the end, lead to

the same outcome—i.e., a reduction (or increase) in sentence as

compared to the originally calculated range—it is important for

sentencing courts to distinguish between the two, as departures are

subject to different requirements than variances.5

B.

The District Court sentenced Floyd without the benefit of

our recent decisions distinguishing between variances and

departures, and clarifying the preferred three-step sentencing
6

 We note that Floyd does not challenge the District Court’s

specific method for reducing her sentence on account of the

departure motion. Post-Booker, § 5K1.1 continues to set out the

considerations relevant to the “appropriate reduction.” See United

States v. Torres, 251 F.3d 138, 146 (3d Cir. 2001) (listing the

factors to be considered). However, it does not specify the method

by which to effectuate that reduction, and we have suggested that

courts have latitude in choosing their methodology. United States

v. Faulks, 143 F.3d 133, 137 n.2 (3d Cir. 1998). Indeed, we have

reviewed § 5K1.1 departures effected by various methods. See,

e.g., Torres, 251 F.3d at 151 (approving § 5K1.1 departure of onemonth from bottom of calculated range); United States v. Casiano,

113 F.3d 420, 428, 431 (3d Cir. 1997) (affirming § 5K1.1 departure

of 3 offense levels, resulting in reduced range). Unlike § 5K1.1,

other departure provisions refer explicitly to departing by means of

a reduction in the applicable offense level or criminal history

category. See U.S.S.G. § 5K3.1 (2003) (allowing a downward

departure of no more than “4 levels” under “early disposition

program”); U.S.S.G. § 4A1.3 (2003) (providing for departures by

adjusting a defendant’s criminal history category).

-7-

process. The parties nevertheless agree that the disputed action of

the District Court involved a departure, rather than a variance, and

it is clear from the record that the Court granted a departure motion

under § 5K1.1, rather than varying Floyd’s sentence based on the

factors listed at § 3553(a). The parties dispute only whether the

Court properly effected the departure it granted.

Floyd argues that a downward departure under the

Guidelines must result in a sentence below the otherwise applicable

range and that the District Court “misunderstood the definition of

a downward departure.” Floyd’s Br. at 9. In our view, her

challenge relates to whether the Court properly determined, at step

2 of the Gunter process, how its departure “affect[ed] the [original]

Guidelines calculation.” Gunter, 462 F.3d at 247.

For the reasons that follow, we conclude that the manner by

which the District Court reduced Floyd’s sentence—that is, from

a prior sentence of 48 months to a new sentence of 42

months—was inconsistent with proper sentencing procedure.6
7

 The Guidelines definitions cited by the parties were added

by amendment in 2003 pursuant to the Prosecutorial Remedies and

Tools Against the Exploitation of Children Today Act of 2003

(“the PROTECT Act”), Pub. L. No. 108-21, § 401(m), 117 Stat.

650, 675. The stated purpose of this amendment was simply to

“provide uniform definitions of departure, upward departure, and

downward departure.” U.S.S.G. app C, vol II, amend. 651, at 366

(2003).

8

 A separate definition is provided for departures under §

4A1.3, a provision that addresses departures from the applicable

criminal history category. A departure under that provision is the

“assignment of a criminal history category other than the otherwise

applicable criminal history category, in order to effect a sentence

outside the applicable guideline range.” Id.

-8-

C.

The parties agree that the Guidelines define the phrase

“downward departure” but dispute whether the § 5K1.1

“departure” granted by the District Court falls within that

definition.7

 The Application Notes to Guideline § 1B1.1 define a

“[d]eparture” as the “imposition of a sentence outside the

applicable guideline range or of a sentence that is otherwise

different from the guideline sentence.” U.S.S.G. § 1B1.1 cmt.

n.1(E) (2003).8

 The Notes offer two definitions of a downward

departure: either (1) a “departure that effects a sentence less than

a sentence that could be imposed under the applicable guideline

range” or (2) “a sentence that is otherwise less than the guideline

sentence.” Id.

Under the first definition, the sentence reached after

granting a departure motion must be less than the bottom of the

otherwise applicable Guidelines range. In this case, after granting

the departure motion, the District Court arrived at a sentence of 42

months. Because this sentence was within the originally calculated

range of 41 to 51 months, it was clearly not a departure under the

first definition.
-9-

The government argues, however, that the District Court’s

reduction in Floyd’s sentence falls within the second definition,

under which a downward departure is “otherwise less than the

guideline sentence.” It contends that the original 48-month

sentence was “the guideline sentence,” and that the Court’s 42-

month sentence was therefore “otherwise less than the guideline

sentence.” We do not agree. The government cites no authority

for departing from a previously-imposed, vacated sentence, and we

do not believe the second definition was intended to enable such a

procedure.

Presumably, the government’s basis for considering the 48-

month sentence to be “the guideline sentence” is that it falls within

the applicable Guidelines range and was imposed pursuant to the

Guidelines. Under such a view, however, every sentence that is

lower than a within-range sentence can be considered “otherwise

less than the guideline sentence” (and thus a downward departure),

even when it is within the applicable range. This reading would

effectively nullify any distinction between simply reducing a

sentence within a range and formally departing from it.

Moreover, this reading would conflict with what we stated

in our first opinion in this case. In remanding to the District Court,

we remarked that the government’s motion for a downward

departure under § 5K1.1 “offered Floyd the hope of a downward

departure from the sentencing guideline range.” Floyd I, 428 F.3d

at 518 (emphasis added). This language mirrored the terms of the

government’s agreement with Floyd, which stated that, should

Floyd provide “substantial assistance,” the government would

“request the Court to depart below the guideline range when fixing

a sentence.” (A22 (emphasis added).) Similarly, we have

previously stated that “when someone is promised the possibility

of ‘a departure from the guidelines’ under U.S.S.G. § 5K1.1, he or

she may reasonably expect to be afforded the possibility of a

sentence below the guideline range.” United States v. Faulks, 143

F.3d 133, 136 (3d Cir. 1998) (emphasis added); see also United

States v. Torres, 251 F.3d 138, 145 (3d Cir. 2001) (“Reducing a

sentence under § 5K1.1 . . . permits a sentencing judge to depart

from the Guidelines range based upon a defendant's substantial
9

 We note that the phrase “the guideline sentence” also

appears in § 5G1.1. Under that provision, a statutory minimum

becomes “the guideline sentence” when it is greater than the top of

the applicable Guidelines range. U.S.S.G. § 5G1.1(b) (2003). See

United States v. Booth, 432 F.3d 542, 547 n.7 (3d Cir. 2005)

(“[Had defendant’s] statutory minimum sentence . . . been greater

than his possible guideline sentence, [then] the 60-month statutory

minimum sentence would have been the guideline sentence

pursuant to section 5G1.1(b).”). Conversely, a statutory maximum

becomes “the guideline sentence” when it is lower than the bottom

of the Guidelines range. § 5G1.1(a).

The second definition encompasses a downward departure

from such a statutory minimum. See United States v. Cordero, 313

F.3d 161, 165 (3d Cir. 2002) (affirming § 5K1.1 downward

departure from 120-month statutory minimum, as “the guideline

sentence” under § 5G1.1(b), rather than from Guidelines range of

63 to 78 months). A statutory minimum is not involved in this

case.

10 The District Court mentioned, as an alternative way to

view its reduction in Floyd’s sentence, that the sentence “also

reflect[ed]” a departure in the applicable range. (App. 56-57.)

This statement, however, does not make clear that the District

Court was actually considering below-range sentences on account

of the departure motion, particularly because the Court repeatedly

stated that it was departing from the original sentence.

-10-

assistance.”) (emphasis added).9 Accordingly, the District Court

should have considered a departure from the calculated range of 41

to 51 months, not from the vacated sentence of 48 months. As the

Guidelines definitions suggest, such a departure would have

contemplated a sentence below 41 months, the bottom of that

range.10

Furthermore, we observe that by departing from a

previously imposed sentence, rather than from the calculated

Guidelines range, the District Court effectively inverted the

sentencing procedure laid out in Gunter. Under the three-step
11 We recognized in Faulks that failing to engage in this

procedure—i.e., granting a § 5K1.1 motion but arriving at an inrange sentence—tends to raise questions about, for example, “what

sentence the judge actually intended” Id.

-11-

process, district courts are asked to rule on departure motions

before balancing the § 3553(a) factors, and just after calculating the

applicable Guidelines range. Here, the District Court departed

from the sentence it originally imposed and therefore effectively

departed after balancing the factors (assuming the 48-month

sentence resulted from statutory balancing). This inversion of the

sentencing process makes it impossible for us to review effectively

the basis for the sentence. Cf. King, 454 F.3d at 196-97 (“[District

courts] should observe the requirement to state adequate reasons

for a sentence on the record so that this court can engage in

meaningful appellate review.”).

 This is not to say that a 42-month sentence is necessarily

unreasonable, or that the Court could not have reached that

sentence. The Court, for example, could have departed below the

41 to 51 month range (at step 2), and then varied upward within the

range by balancing the § 3553(a) factors (at step 3). We would

review for reasonableness. Moreover, as we noted in Faulks, the

Court could have “denied the motion for a departure and then gone

on to acknowledge [Floyd’s] substantial assistance by sentencing

lower in the guideline range than it would otherwise have done.”

143 F.3d at 137.11

Here, after assessing the factors under § 5K1.1, the Court

stated that Floyd’s assistance “marginally [met] the criteria for a

downward departure from the original sentence of 48 months.”

(App. 48.) From this statement, it is unclear whether the Court

meant that Floyd’s assistance satisfied the requirements for a §

5K1.1 departure (thereby warranting consideration of a sentence

below the Guidelines range), or if Floyd’s assistance warranted

only a reduction within the range (but not a departure below it).

Without speculating about the Court’s preferred course of action,

we cannot determine which option it intended.

III. Conclusion
-12-

For the reasons stated, we vacate the sentence and remand

for resentencing.