1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-8-1995

United States v Corrado

Precedential or Non-Precedential:

Docket 93-1086

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Recommended Citation

"United States v Corrado" (1995). 1995 Decisions. Paper 121.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/121
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 93-2086 

 ___________ 

 UNITED STATES OF AMERICA 

 vs. 

 ROBERT CORRADO 

 Robert A. Corrado, 

 Appellant. 

 ___________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 (D.C. Criminal No. 91-cr-00055-4) 

 ___________ 

 ARGUED NOVEMBER 2, 1994 

 BEFORE: GREENBERG, SCIRICA, and LEWIS Circuit Judges. 

 (Filed May 8, 1995) 

 ___________ 

Scott DiClaudio (ARGUED) 

Louis T. Savino, Jr. 

Louis T. Savino & Associates 

15th and JFK Boulevard 

Two Penn Center, Suite 1516 

Philadelphia, PA 19102 

 Attorneys for Appellant
Walter S. Batty, Jr. (ARGUED) 

Office of the United States Attorney 

615 Chestnut Street 

Philadelphia, PA 19106 

 Attorney for Appellee

 ____________ 

 OPINION OF THE COURT 

 ____________ 

LEWIS, Circuit Judge. 

 This appeal deals principally with only one issue: 

whether the district court properly relied upon section 

1B1.11(b)(2) of the United States Sentencing Guidelines 

("U.S.S.G." or "guidelines") in calculating the sentence it 

imposed in this case. Section 1B1.11(b)(2) is, in essence, the 

United States Sentencing Commission's codification of the 

so-called "one book rule," the practice of applying only one 

version of the guidelines when calculating a defendant's 

sentence. Prior to its codification, we had expressly 

disapproved the "one book rule"; thus, we are called upon to 

reconcile our prior rejection with its subsequent codification. 

Because we conclude that the Sentencing Commission's adoption of 

the "one book rule" is binding, we will affirm the district 

court's judgment of sentence in this regard.1

 

1. Corrado's appeal raised three additional challenges to the 

sentence the district court imposed, but because of certain 

concessions made by both sides prior to, during and after oral 

argument (some of which will require a remand), the only "live" 

issue on appeal is the one discussed above. 

 Specifically, Corrado claimed that the district court erred 

in computing his criminal history score by using a prior 
I. 

 During a period from June 1985 through May 1988, 

Corrado was involved in the operation of a stolen car ring and 

"chop shop," as well as a conspiracy to defraud Stereo 

Discounters Electronic World, Inc., an electronics retailer. 

Corrado entered a guilty plea to two counts of a 38-count 

indictment and, in November 1993, was sentenced to two concurrent 

57-month terms of imprisonment.2 Pursuant to section 

(..continued) 

misdemeanor shoplifting conviction which was (a) uncounseled, and 

(b) constituted a "local ordinance violation." Corrado later 

withdrew both contentions, acknowledging that the Supreme Court 

has explicitly held that a court may consider a defendant's prior 

uncounseled misdemeanor conviction without offending the Sixth 

Amendment right to counsel (Nichols v. United States, 114 S. Ct. 

1921, 1928 (1994)), and that the offense had been prosecuted as a 

state misdemeanor rather than a local ordinance violation. 

 Corrado had also claimed that the district court improperly 

considered a prior conviction for interstate transportation of 

stolen goods which had been set aside under the Youth Corrections 

Act ("YCA"), 18 U.S.C. § 5021(a), and erred in imposing two 

five-year terms of supervised release, which were in excess of 

the statutory maximum set forth in U.S.S.G. §5D2.1(b), which 

provides for a term of "at least two but not more than three 

years . . . ." The government conceded that the terms of 

supervised release exceeded the statutory maximum and should be 

reduced on remand, and we agree. The government also conceded 

that if Corrado's prior conviction for interstate transportation 

of stolen goods was, in fact, set aside under the YCA, it should 

not have been included in computing Corrado's criminal history 

score. We agree with the government that "this question should 

be remanded to the district court for a determination of whether 

or not the particular sentence at issue here . . . was a YCA 

sentence." Appellee's Br. at 22. Accordingly, we will remand to 

the district court for resentencing under U.S.S.G. §5D1.2(b) with 

respect to the terms of supervised release, and for 

reconsideration of Corrado's criminal history score following a 

determination of whether the conviction was set aside under the 

YCA. 

2. The sentence was based on a criminal history category of V 

and a total offense level of 19. The number 19, which represents 
1B1.11(b)(1) of the November 1993 version of the guidelines (the 

edition in effect at the time of Corrado's sentencing), the 

district court looked to the 1987 version of the guidelines (the 

edition in effect at the time Corrado committed his crimes) to 

calculate the sentence. The court pursued this regimen because 

application of the 1993 version of the guidelines would have 

resulted in Corrado receiving a more severe sentence than he 

could have anticipated when he committed his crimes. See

U.S.S.G. §1B1.11(b)(1) (1993) (directing courts to use the 

guidelines in effect at the time the offense was committed if the 

guidelines in effect at the time of sentencing would violate the 

Constitution's ex post facto clause). As part of the calculation 

of Corrado's sentence, the district court granted the two-level 

reduction for acceptance of responsibility available under the 

1987 guidelines. See U.S.S.G. §3E1.1(a) (1987). 

 Corrado now argues that the district court erred 

because it did not grant him a three-level downward adjustment -- 

the maximum reduction available under the 1993 version of the 

guidelines for acceptance of responsibility. See U.S.S.G. §3E1.1 

(1993). 

(..continued) 

the higher of the two offense levels produced after levels for 

each count were calculated, see U.S.S.G. §3D1.2(d) (Nov. 1987) 

(requiring that counts be grouped when they involve substantially 

the same harm) and §3D1.3(b) (Nov. 1987) (requiring use of 

highest offense level produced when offenses are grouped), was 

based upon a base offense level of six; which was increased by 

eight due to the amount of monetary loss involved; which was then 

increased by two for more than minimal planning; then by three 

because Corrado was a manager; then by two for obstruction of 

justice; and which was then decreased by two for acceptance of 

responsibility. 
 We have jurisdiction under 18 U.S.C. § 3742(a). 

II. 

 As a general rule, a defendant's sentence should be 

based on the guidelines "that are in effect on the date that the 

defendant is sentenced." United States v. Menon, 24 F.3d 550, 

566 (3d Cir. 1994); United States v. Cherry, 10 F.3d 1003, 1014 

(3d Cir. 1994); United States v. Kopp, 951 F.2d 521, 526 (1991); 

18 U.S.C. § 3553(a)(4); U.S.S.G. §1B1.11(a) (1993). When, 

however, the retroactive application of the version of the 

guidelines in effect at sentencing results in more severe 

penalties than those in effect at the time of the offense, the 

earlier version controls, United States v. Seligsohn, 981 F.2d 

1418, 1424 (3d Cir. 1992), citing Kopp, 951 F.2d at 526; see also

United States v. Pollen, 978 F.2d 78, 90 (3d Cir. 1992); United 

States v. Chasmer, 952 F.2d 50, 52 (3d Cir. 1991); U.S.S.G 

§1B1.11(b)(1) (1993), since, as already noted, to apply a change 

in the guidelines that enhances the penalty would offend the ex

post facto clause of the United States Constitution. See Miller

v. Florida, 482 U.S. 423, 431-35 (1987); Menon, 24 F.3d at 566; 

U.S. Const. Art. I, § 9. Moreover, if the application of the 

guideline manual in effect at the time of sentencing would 

violate the ex post facto clause, the manual in effect on the 

date of the offense should be used in its entirety. U.S.S.G. 

§1B1.11(b)(2) (1993) (emphasis added). The practice of applying 
only one version of the guidelines when calculating a defendant's 

sentence has been referred to as the "one book rule".3

 It is undisputed that the district court correctly 

looked to the 1987 version of the guidelines in determining 

Corrado's sentence. Indeed, there is no question but that 

Corrado would have received a more severe sentence had the 1993 

guidelines been applied. Under the 1987 guidelines, Corrado's 

offense level was increased by eight levels to account for the 

monetary loss he caused, while under the 1993 guidelines the same 

loss would have resulted in an eleven-level increase.4 Compare

U.S.S.G. §2F1.1(b)(1)(I) (1987) with U.S.S.G. §2F1.1(b)(1)(L) 

(1993). This difference meant that, even with the three-level 

acceptance of responsibility adjustment, Corrado's applicable 

range under the 1993 guidelines would have been 70 to 87 months, 

 

3. Section 1B1.11(b)(2) provides in pertinent part: 

 The Guidelines Manual in effect on a 

particular date shall be applied in its 

entirety. The court shall not apply, for 

example, one guideline section from one 

edition of the Guidelines Manual and another 

guideline section from a different edition of 

the Guidelines Manual. 

U.S.S.G. §1B1.11(b)(2), p.s. (1992). 

4. The parties stipulated that the loss caused by each of the 

two counts of conviction was $600,000, or a total of $1.2 

million. Thus, since the grouping requirements provide that the 

dollar amounts be aggregated, the Presentence Report indicated 

that the total amount of loss, for the purposes of calculating 

Corrado's sentence, was $1.2 million. Presentence Report at 9, 

¶ 41; see U.S.S.G. §3D1.2(d) (1987). The district court, 

however, found that the total monetary loss was "less than 

$1,000,000." App. at 10. This finding does not affect our 

analysis. 
while under the 1987 guidelines, with the two-level reduction, 

his sentencing range was only 57 to 71 months. 

III. 

 Corrado suggests that the district court should have 

used the 1987 version of the guidelines when calculating his 

adjusted offense level and the 1993 version when determining the 

maximum permissible downward adjustment for acceptance of 

responsibility. He argues that because 18 U.S.C. § 3553(a)(4) 

requires that sentences be calculated according to the guidelines 

in effect at the time of sentencing, he is entitled to the 

benefit of the 1993 provision governing acceptance of 

responsibility. In essence, Corrado challenges the district 

court's decision to apply the 1987 guidelines as a whole rather 

than considering each provision in isolation and applying only 

those provisions from the 1987 version of the guidelines which 

are more favorable. In support of his position, Corrado advances 

two distinct arguments. First, he claims that the district court 

was free to disregard section 1B1.11(b)(2) because it is "not a 

guideline as such, rather it is a policy statement[,] . . . 

[which is] not binding on the sentencing court." Appellant's Br. 

at 17-18. Corrado also contends that the application of section 

1B1.11, itself, violates the ex post facto clause; according to 

Corrado, but for that provision, which was added to the 

guidelines after he committed his crimes, the district court 

would have been free to apply the 1987 guidelines in determining 

his adjusted offense level and the 1993 provision for acceptance 
of responsibility -- a process which would have resulted in a 

more favorable sentence. 

 We have plenary review of issues of law raised by the 

application of the guidelines. United States v. Mobley, 956 F.2d 

450, 451 (3d Cir. 1992). We will address Corrado's contentions 

in turn. 

A. 

 Corrado's claim that the district court was not bound 

to follow section 1B1.11(b)(2) because it is a policy statement 

rather than a guideline is, quite simply, mistaken. The 

Guideline Manual contains three varieties of text: guidelines 

provisions, policy statements and commentary. Title 28 of the 

United States Code at section 994, draws an unequivocal 

distinction between "guidelines," 28 U.S.C. § 994(a)(1), and 

"general policy statements regarding the application of the 

guidelines," 28 U.S.C. § 994(a)(2), as do other sections of the 

statute. See, e.g., 28 U.S.C. § 994(a)(3) (referring 

specifically to "guidelines or general policy statements"); 

§ 994(c) (referring specifically to "guidelines and policy 

statements"). Policy statements, unlike the guidelines, are not 

subject to formal legislative review and do not have the same 

degree of authority as guidelines. See United States v. Gaskill, 

991 F.2d 82, 85 (3d Cir. 1993). The Supreme Court, however, has 

stated that "[t]he principle that the Guidelines Manual is 

binding on federal courts applies as well to policy statements." 

Stinson v. United States, 113 S. Ct. 1913, 1917 (1993). 

Furthermore, where "a policy statement prohibits a district court 
from taking a specified action, the statement is an authoritative 

guide to the meaning of the applicable guideline." Williams v. 

United States, 503 U.S. 193, 201 (1992);5 United States v. 

Reilly, 33 F.3d 1396, 1424 n.21 (3d Cir. 1994). In this case, 

the policy statement at issue expressly prohibits district courts 

 

5. Corrado urges us to consider United States v. Dawson, 990 

F.2d 1314 (D.C. Cir. 1993), wherein the Court of Appeals for the 

District of Columbia limited Williams v. United States, 112 S. 

Ct. 1112, 1119 (1992), to situations in which a policy statement 

explains an applicable guideline. In this regard, the Dawson

court stated: 

 The Government can take no comfort in 

[Williams] which it cited for the general 

proposition that there is no meaningful 

distinction between the guidelines and policy 

statements . . . . The Court in Williams did 

not address whether a policy statement 

promulgated in the absence of a corresponding 

guideline is a valid exercise of the 

Commission's authority. Rather, the Court 

apparently assumed that the policy statement 

at issue in Williams explained an applicable 

guideline. By contrast, in this case there 

is no guideline applicable to the 

determination . . . . 

Dawson, 990 F.2d at 1319. 

 Corrado suggests that this case is analogous to Dawson

because section 1B1.11(b)(2) "was not promulgated to explain an 

underlying guideline, rather, it is a policy statement which 

stands alone, seeking to reconcile 18 U.S.C § 3553(a)(4),(5)[;] 

the ex post facto clause[;] congressional intent and the 

Commission's own policy concerns." Appellant's Br. at 19. 

Although we do not read Williams as narrowly as the Dawson court 

did, we do not believe the more limited view would change the 

result in this case. Corrado correctly notes that section 

1B1.11(b)(2) does not correspond to a particular guideline. The 

policy statement does, however, explain how the applicable 

guidelines shall be applied. The fact that section 1B1.11(b)(2) 

pertains to many guidelines rather than a single guideline is, in 

our view, of little significance to the determination of whether 

the section is binding on sentencing courts. 
from doing precisely what Corrado suggests the district court 

here should have done -- namely, to mix and match provisions from 

different versions of the guidelines in order to tailor a more 

favorable sentence. Because of its prohibitive nature, as well 

as the fact that we believe applying various provisions taken 

from different versions of the guidelines would upset the 

coherency and balance the Sentencing Commission obviously 

intended in promulgating the guidelines, see United States v. 

Kikamura, 918 F.2d 1084, 1109 (3d Cir. 1990), we conclude that 

section 1B1.11(b)(2) is binding and, as such, was properly 

followed by the district court in this case. 

 We need not reach Corrado's claim that the district 

court "was obligated to . . . follow the approach established by 

the Third Circuit" in Kopp and Seligsohn. See Appellant's Br. at 

19. Although we previously held that the "so-called [one book] 

rule is inconsistent with United States v. Kopp and other cases 

in this Court[,]" and "expressly disapprove[d] of the `one book' 

practice as in conflict with the Kopp opinion[,]" Seligsohn, 981 

F.2d at 1424, the Sentencing Commission, through its adoption of 

section 1B1.11(b)(2), has effectively overruled those opinions 

insofar as they conflict with the codification of the "one book 

rule." Of course, we hasten to note that to the extent these 

decisions do not conflict with section 1B1.11(b)(2), their 

vitality remains. 
B. 

 Corrado's second claim -- that because the "one book 

rule" was not in effect at the time of his offenses, its 

application violates the ex post facto clause -- is likewise 

unavailing. The ex post facto clause "forbids the imposition of 

punishment more severe than the punishment assigned by law when 

the act to be punished occurred." Weaver v. Graham, 450 U.S. 24, 

28 (1981). Significantly, Corrado's sentence was, in fact, 

imposed pursuant to the law in effect at the time he committed 

his crimes. Corrado had "fair warning" of the specific 

punishment prescribed for his crimes, see Miller v. Florida, 482 

U.S. at 430-431, and of the maximum available reduction for 

acceptance of responsibility which was two levels. It is true 

that Corrado could not have predicted that the "one book rule" 

would have required him to be sentenced under the 1987 version of 

the guidelines, thus prohibiting him from receiving an additional 

one-level decrease for acceptance of responsibility. Of course, 

it is equally true that Corrado could not have forecast that a 

more favorable provision for acceptance of responsibility might 

exist in 1993. But the impossibility of prognostication under 

these circumstances is not at all analogous to "the lack of fair 

notice" which, from the outset, has been recognized as central to 

the ex post facto prohibition. See Miller, 482 U.S. at 430, 

citing Weaver, 450 U.S. at 30. The ex post facto clause protects 

defendants from future legislation which "increases punishment 

beyond what was prescribed when the crime was consummated." Id. 
 The sentencing guidelines are subject to continuous 

review and revision. Some changes might benefit a defendant 

while others might operate to his or her detriment. In this 

case, the application of the 1987 guidelines, pursuant to section 

1B1.11(b)(2), resulted in a sentence of at least thirteen months 

less than what Corrado would have received under the 1993 

guidelines. In our view, where, as here, the applicable 

guidelines overall work to the defendant's advantage in terms of 

the sentence imposed, there is no ex post facto violation. See

United States v. Bertoli, 40 F.3d 1384, 1404 n.17 (3d Cir. 1994). 

IV. 

 In determining that section 1B1.11(b)(2) is binding and 

that its application does not offend the ex post facto clause, we 

join the majority of other courts of appeal which have already 

upheld the application of the "one book rule." See e.g. United 

States v. Nelson, 36 F.3d 1001, 1004 (10th Cir. 1994) (stating 

that a defendant may not select piecemeal from different versions 

of the guidelines to come up with the most advantageous 

combination of provisions from the two books); United States v. 

Springer, 28 F.3d 236, 237-38 (1st Cir. 1994) (upholding section 

1B1.11(b)(2) and finding application of the one book rule did not 

violate the ex post facto clause); United States v. Lance, 23 

F.3d 343, 344 (11th Cir. 1994) (refusing to "mix and match" 

amended provisions to reach a more favorable sentence); United 

States v. Boula, 997 F.2d 263, 265-66 (7th Cir. 1993) (refusing 

to apply guidelines in "piecemeal fashion"); United States v. 

Warren, 980 F.2d 1300, 1305-06 (9th Cir. 1992) (rejecting 
"piecemeal application of the guidelines"); United States v. 

Lenfesty, 923 F.2d 1293, 1299 (8th Cir. 1991) (refusing 

defendant's request to receive application of favorable change in 

guidelines while continuing to receive the benefit of a provision 

under previous version of the guidelines); United States v. 

Stephenson, 921 F.2d 438, 441 (2d Cir. 1990) (concluding that 

"applying various provisions from different versions of the 

guidelines would upset the coherency and balance the Commission 

achieved in promulgating the Guidelines"). In addition, and 

perhaps more important, our conclusion is consistent with the 

Commission's obvious intention that the guidelines operate as a 

cohesive and integrated whole. 

V. 

 For the reasons set forth above, we will affirm the 

district court's application of the "one book rule." We will, 

however, remand to the district court for resentencing and 

reconsideration in accordance with this opinion. 

_________________________