Guideline Sentencing Update

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions

on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy

statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 11, no. 4, Oct. 3, 2001

Apprendi Issues

Consecutive Sentences

Several circuits hold, under plain error review, that the

total sentence for multiple counts may exceed the

maximum authorized by Apprendi for any one count if

the same sentence would result from imposing consecutive terms under USSG § 5G1.2. For example, a defendant in the Fourth Circuit was convicted on three

counts. He was sentenced to concurrent terms of 292

months for a drug offense and 240 months for each of two

money laundering counts. Because neither the indictment nor the jury verdict specified the amount of drugs

involved, defendant’s statutory maximum sentence on

the drug count was 240 months. The appellate court held

that the sentence did not violate Apprendi v. New Jersey,

530 U.S. 466 (2000).

Defendant was convicted “of three crimes, exposing

him to a total statutory maximum prison term of 60 years.

In the case of multiple counts of conviction, the sentencing guidelines instruct that if the total punishment mandated by the guidelines exceeds the statutory maximum

of the most serious offense of conviction, the district

court must impose consecutive terms of imprisonment

to the extent necessary to achieve the total punishment.

See U.S.S.G. § 5G1.2(d). . . . Had the district court been

aware when it sentenced Phifer that the maximum penalty for his drug trafficking conviction was 20 years,

§ 5G1.2(d) would have obligated it to achieve the guideline sentence of 292 months imprisonment by imposing

a term of imprisonment of 240 months or less on each

count of conviction and ordering those terms to be served

consecutively to achieve the total punishment mandated

by the guidelines.” The court noted that “Apprendi does

not foreclose this result” because Apprendi did not decide the issue of whether consecutive sentences could

have led to the same sentence in that case.

U.S. v. Angle, 254 F.3d 514, 518–19 (4th Cir. 2001) (en

banc). See also U.S. v. Le, 256 F.3d 1229, 1240 & n.11 (11th

Cir. 2001) (affirming on direct appeal 262-month total

sentence of 240 months on one count and consecutive

22-month sentence on second count, where each had

twenty-year statutory maximum—“Apprendi does not

apply when the sentences on two related offenses are

allowed to run consecutively under the relevant law and

the sentence on each offense does not exceed the prescribed statutory maximum for that particular offense”).

Other circuits have reached the same result when review is for plain error. See, e.g., U.S. v. Price, No. 99-7078

(10th Cir. Sept. 11, 2001) (Murphy, J.) (affirmed: although

imposition of concurrent life sentences under

§841(b)(1)(A) was plain error, “[b]ecause § 5G1.2(d) is a

mandatory provision, . . . [t]he district court would be

required to impose twenty-year terms on Defendant’s

seven drug convictions and to run these sentences, as

well as Defendant’s sentences on the other convictions,

consecutively, resulting in a total consecutive sentence of

208 years”); U.S. v. Kentz, 251 F.3d 835, 842 (9th Cir. 2001)

(affirmed: any error in 160-month sentence was harmless

for defendant convicted of twenty-one counts, each with

five-year maximum, where § 5G1.2(d) would require consecutive sentences to achieve total punishment); U.S. v.

Sturgis, 238 F.3d 956, 960–61 (8th Cir. 2001) (affirmed:

although 262-month sentence on one count violated

Apprendi, under § 5G1.2(d) “the district court could have

capped Sturgis’s 262-month sentence on the crack count

at the maximum 240 months, and run 22 of the 60 months

on the marijuana count consecutively, thereby achieving

the 262-month sentence imposed by the Guidelines”);

U.S. v. Page, 232 F.3d 536, 542 (6th Cir. 2000) (affirming

despite Apprendi error “since, absent the error, their sentences would have been the same” because § 5G1.2(d)

“would require that the sentence imposed on one or more

of the substantive counts run consecutive to the sentence

on the conspiracy count, to the extent necessary to produce a combined sentence equal to the total punishment” that was imposed).

The Second Circuit, in another case under plain error

review, found that “[t]he district court’s use of section

5G1.2(d) did not result in a sentence on any one count

above the maximum available on that count” under

Apprendi. However, it remanded defendant’s effective life

sentence under the Guidelines—a total of 240 years

reached by making the sentences for the six counts of

conviction consecutive—because the district court erroneously indicated it had no discretion to depart.

“[N]otwithstanding the apparent mandatory nature of

section 5G1.2, a sentencing court may depart from the

‘stacking’ provision of that section to impose concurrent

sentences where the imposition of multiple stacked sentences based on similar conduct created ‘an aggravating

or mitigating circumstance . . . .’ More broadly, we have

suggested that a sentencing court may depart downward

where findings as to uncharged relevant conduct made

by the sentencing court based on a preponderance of the

evidence substantially increase the defendant’s sentence

under the Sentencing Guidelines.” The case was remanded for the district court to “consider whether, on the
2 Guideline Sentencing Update, vol. 11, no. 4, October 3, 2001 • a publication of the Federal Judicial Center

particular facts of this case, a downward departure from

the mandatory stacking provisions of section 5G1.2 or

based on the substantial effect of the court’s relevant

conduct findings might be appropriate.”

U.S. v. White, 240 F.3d 127, 132–37 (2d Cir. 2001).

See Outline generally at II.A.3.a and c, V.A.1

Retroactivity

Eighth and other circuits hold that Apprendi is not a

“watershed rule” requiring retroactive application on

collateral review. An Eighth Circuit defendant’s appeal of

the denial of his motion under 28 U.S.C. § 2255 was pending when Apprendi was decided. The government conceded that defendant’s sentence would violate Apprendi,

but argued that Apprendi set forth a new rule of constitutional law that, under Teague v. Lane, 489 U.S. 288 (1989),

is inapplicable to cases on collateral review. The appellate

court agreed that Apprendi did not fall within any of

Teague’s exceptions to the general rule.

“Relevant to our inquiry is the exception permitting

watershed rules, ones which ‘implicate the fundamental

fairness of the trial,’ to be raised collaterally. . . . [W]e

hold today that Apprendi is not of watershed magnitude

and that Teague bars petitioners from raising Apprendi

claims on collateral review.” Although Apprendi “unmistakably altered the legal landscape and is easily categorized as a new rule, . . . we do not believe Apprendi’s rule

recharacterizing certain facts as offense elements that

were previously thought to be sentencing factors resides

anywhere near that central core of fundamental rules that

are absolutely necessary to insure a fair trial.”

Exceptions have been allowed only for rules that “impart a fundamental procedural right that . . . is a necessary

component of a fair trial,” and that “not only improve

accuracy, but also alter our understanding of the bedrock

procedural elements essential to the fairness of a proceeding.” The court concluded that “[p]ermitting a judgefound fact to affect the sentence imposed after a valid

conviction, even if it is found under a more lenient standard, cannot be said to have resulted in a fundamentally

unfair criminal proceeding,” and “Apprendi appears no

more ‘important’ to a fair trial than rules previously addressed by the [Supreme] Court, including the rule announced in Batson v. Kentucky, 176 U.S. 79 (1986), which

the Court refused to apply retroactively in Teague.”

U.S. v. Moss, 252 F.3d 993, 997–1001 (8th Cir. 2001)

(Richard S. Arnold, J., dissented). Accord McCoy v. U.S.,

No. 00-16434 (11th Cir. Sept. 25, 2001) (Hull, J.) (affirmed:

agreeing with Moss and others that “the new rule announced by the Supreme Court in Apprendi does not fall

within either exception to Teague’s non-retroactivity

standard”); U.S. v. Sanders, 247 F.3d 139, 147–51 (4th Cir.

2001) (affirmed: “a rule which merely shifts the fact-finding duties from an impartial judge to a jury clearly does

not fall within the scope of the second Teague exception”). See also Jones v. Smith, 231 F.3d 1227, 1236–38 (9th

Cir. 2000) (in § 2254 proceeding, finding that Apprendi

rule does not fit within Teague exception “at least as applied to the omission of certain necessary elements from

the state court information” where those elements were

argued at trial and included in jury instructions).

A recent Supreme Court decision may end the need for

lower courts to determine whether Apprendi set forth a

“watershed rule.” The Court examined the exception in

§ 2244(b)(2)(A) that allows a second or successive § 2254

petition based on a new rule of constitutional law that has

been “made retroactive to cases on collateral review by

the Supreme Court.” It concluded that “‘made’ means

‘held’ for purposes of § 2244(b)” and thus “a new rule is

not ‘made retroactive to cases on collateral review’ unless

the Supreme Court holds it to be retroactive.” The Court

discussed Teague and the watershed rule, but indicated

that, at most, Teague could be used only to determine

whether “this Court should make [a prior case] retroactive

to cases on collateral review.” That does not help petitioner because his motion must be dismissed under

§ 2244 unless the Court had already made the new rule

retroactive. Tyler v. Cain, 121 S. Ct. 2478, 2482–85 (2001).

Following Tyler, the Sixth Circuit determined it did not

have to reach petitioner’s watershed rule claim in denying

a motion to file a second petition under § 2255, which has

the same exception. The court reasoned that Tyler “stated

that Teague is not controlling for collateral cases [under

§§ 2254 and 2255]. . . . As the Supreme Court has not held

that Apprendi applies retroactively to cases on collateral

review, Clemmons’s second petition fails to satisfy the

requirements of 28 U.S.C. § 2255.” In re Clemmons, 259

F.3d 489, 492–93 (6th Cir. 2001). Accord Forbes v. U.S., 262

F.3d 143, 145–46 (2d Cir. 2001).

Offense Conduct

Drug Quantity

Two more circuits hold that drug amounts for personal

use should not be counted in setting offense level for

distribution offense. The Seventh and Ninth Circuits

have held that drugs intended for personal consumption

should not be included when sentencing for the offense of

possession with intent to distribute. See U.S. v. Wyss, 147

F.3d 631, 632 (7th Cir. 1998); U.S. v. Kipp, 10 F.3d 1463,

1465–66 (9th Cir. 1993). Such amounts are counted, however, when defendant is convicted of conspiracy. See, for

example, U.S. v. Page, 232 F.3d 536, 542 (affirmed: “drugs

obtained by defendant from his supplier for his personal

use were properly included by the district court in determining the quantity of drugs that the defendant knew

were distributed by the conspiracy”), cases cited therein,

and Outline at II.A.1.c, p. 39.

The Eighth Circuit recently found “Wyss and Kipp persuasive. For sentencing purposes, we note an important
Guideline Sentencing Update, vol. 11, no. 4, October 3, 2001 • a publication of the Federal Judicial Center 3

distinction between a conviction for conspiracy to distribute and a conviction for possession with intent, or an

attempt to possess with the intent to distribute. . . . When

a defendant, who is a member of a conspiracy to distribute, purchases drugs for her personal use from a coconspirator, the personal-use quantities ‘are relevant in

determining the quantity of drugs the defendant knew

were distributed by the conspiracy.’ . . . What the buyer

intends to do with the drugs, in this situation, is irrelevant.” However, for possession with intent to distribute,

or an attempt to do so, “those drugs acquired for personal

consumption are possessed without the intent to distribute, and they were not acquired from another person who

was a party to a conspiracy to distribute. Keeping drugs

for oneself is not within ‘the common scheme or plan’ of

selling, giving, or passing them to another; therefore,

personal-use quantities are not relevant conduct.”

U.S. v. Fraser, 243 F.3d 473, 475–76 (8th Cir. 2001) (remanded for calculation of amounts that were for personal

use and must be excluded) (Hansen, J., dissented).

The Second Circuit also agreed that “in sentencing

defendants convicted of possession with intent to distribute, drugs meant only for personal use must be excluded

from the drug quantity assessment. . . . Where . . . there is

no conspiracy at issue, the act of setting aside narcotics

for personal consumption is not only not a part of a

scheme or plan to distribute these drugs, it is actually

exclusive of any plan to distribute them.” Because defendant was also subject to a mandatory sentence of twenty

years under 21 U.S.C. § 841(b)(1)(A) if found to have possessed at least 50 grams of cocaine base (the government

alleged he had 68.9 grams), the court added that “in

calculating the quantity of drugs relevant for purposes of

sentencing under 21 U.S.C. § 841, any fractional quantity

of drugs intended for personal use must be excluded.”

U.S. v. Williams, 247 F.3d 353, 357–59 (2d Cir. 2001)

(remanded). See also U.S. v. Asch, 207 F.3d 1238, 1243–46

(10th Cir. 2000) (exclude drug amounts kept for personal

consumption in setting penalty for conspiracy offense

under § 841(b), including possible mandatory minimum); U.S. v. Rodriguez-Sanchez, 23 F.3d 1488, 1493–96

(9th Cir. 1994) (same, for possession with intent to distribute offense).

See Outline at II.A.1.c

Departures

Mitigating Circumstances

Eighth Circuit holds that departure is not warranted for

interdistrict sentencing disparity based on one

district’s blanket refusal to enter into § 1B1.8 agreements. Under USSG § 1B1.8(a), a defendant and the government may enter into a cooperation agreement that

allows defendant to provide information about the illegal

activity of others, which could lead to a lower sentence,

without having any self-incriminating information that is

provided under the agreement used to increase the sentence. The district court found that there was a significant

disparity between the Northern District of Iowa, which

rarely used such agreements, and the Southern District,

and that it had the authority to depart downward based

on the disparate practices of the prosecutors. The court

departed downward for a Northern District defendant

who cooperated with the government and, as a result of

information he provided, had his offense level increased

from 28 to 36.

The appellate court reversed. Citing cases that have

found “no authority to depart based on sentencing disparities that resulted from interdistrict differences in

plea-bargaining policies,” and the general proposition

that “disparities in sentences among codefendants resulting from a routine exercise of prosecutorial discretion

are unsuitable for departure,” the court reasoned that

“‘justified’ disparities—those resulting from the proper

application of the Guidelines to each individual case—

are not an appropriate basis for departure. . . . However,

unjustified disparities may warrant a departure.”

“Determining whether the interdistrict disparity in

prosecutorial practices in these cases is justified turns

upon prosecutorial authority. Only if the prosecutors do

not possess the authority to rarely agree to section 1B1.8

protection would that practice result in an improper application of the Guidelines, resulting in an unjustified

disparity that could be corrected through the departure

power. . . . [A]fter separating the wheat from the chaff in

this case, we are left with the following question: is a

general policy or practice of rarely granting section 1B1.8

protection within the government’s proper exercise of

prosecutorial discretion?”

Examining § 1B1.8 and its commentary, which “contain no language that would limit the prosecutor’s discretion concerning when or how often to enter into agreements to extend section 1B1.8 protection,” and the similar discretion under § 5K1.1, the court concluded that “the

most natural reading of section 1B1.8 is that the [Sentencing] Commission intended a decision about entering into

agreements to be left to the prosecutor’s discretion.”

Therefore, absent improper or unconstitutional conduct,

“any disparities arising from appropriate prosecutorial

practices (or sentences resulting from those practices) are

justified under the Guidelines. . . . [D]isparities resulting

from proper exercises of the discretion by prosecutors

cannot be said to be ‘unusual’ or ‘atypical’ enough to

warrant departure under section 5K2.0.”

U.S. v. Buckendahl, 251 F.3d 753, 758–63 (8th Cir. 2001)

(Heaney, J., dissented). See also summaries of McMutuary

and Banuelos-Rodriguez in 11 GSU #1.

See Outline at VI.E
Guideline Sentencing Update, vol. 11, no. 4, Oct. 3, 2001

Federal Judicial Center

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One Columbus Circle, N.E.

Washington, DC 20002-8003

En banc Eighth Circuit reverses panel decision, holds

that post-sentencing rehabilitation may not be used as

basis for departure at § 3582(c)(2) resentencing. After

defendant was sentenced to life on drug charges, the drug

quantity tables were retroactively amended and, after her

motion for resentencing under 18 U.S.C. § 3582(c)(2) was

granted, led to a new guideline range of 324–405 months.

The district court then granted her request for a departure

based on her rehabilitation while in prison, and sentenced her to 144 months. A divided appellate panel

affirmed the departure, reasoning that in other circumstances the court had previously allowed consideration of

departures at § 3582(c)(2) resentencings on grounds not

available at the original sentencing. U.S. v. Hasan, 205 F.3d

1072, 1074–75 (8th Cir. 2000).

The en banc court reversed. Under § 3582(c)(2), as

implemented by USSG §1B1.10, a district court first determines what a defendant’s sentencing range would

have been had the amended guideline been in effect at

the original sentencing. Then the court determines

whether to reduce the sentence to that level based on “the

facts before it at the time of the resentencing, in light of the

factors set forth in 18 U.S.C. § 3553(a), to the extent they

are applicable.” In that second step, “the guiding factors in

§ 3553(a) and the applicable policy statements of the

Sentencing Commission are not grounds for an additional departure below the new sentence length already

determined by the district court in step one. . . . The statute

does not say that the court may reduce the term of imprisonment below the amended sentencing range or that the

§ 3553(a) factors or the applicable policy statements

should be considered for such an additional reduction.”

“The only time a district court is authorized by § 1B1.10

to depart downward from the amended sentencing range

at a § 3582(c) resentencing is when a downward departure

previously had been granted at the original sentencing.”

See USSG § 1B1.10, comment. (n.3). “It goes without saying that Ms. Hasan did not and could not have received a

downward departure at her original sentencing for postsentencing in-prison good conduct. The departure

granted by the district court to Ms. Hasan at her resentencing is not consistent with the applicable policy statement (§ 1B1.10) issued by the Sentencing Commission to

govern § 3582(c)(2) resentencings, and therefore runs

afoul of § 3582(c)(2) itself, which requires action ‘consistent with applicable policy statements issued by the Sentencing Commission.’” The court also distinguished the

cases relied upon by the previous panel.

U.S. v. Hasan, 245 F.3d 682, 684–90 (8th Cir. 2001) (en

banc) (four judges dissented). Cf. U.S. v. Maldonado, 242

F.3d 1, 5 (1st Cir. 2001) (although amendment to Guidelines prospectively prohibited departures based on postsentence rehabilitation, effective Nov. 1, 2000, this circuit

had previously allowed such departures and, where original sentencing occurred before amendment, defendant

could argue for departure after successful 28 U.S.C. § 2255

motion resulting in de novo resentencing).

See Outline at I.E.6, p. 29, and VI.C.2.a, p. 341