17‐896‐cr U.S. v. Carosella
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2017
(Argued: February 7, 2018 Decided: February 22, 2018)
Docket No. 17‐896‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
TODD JARVIS, AKA MIKE HUNT, WAKETA COLEMAN, AKA MA, ANDRE MALDONADO, AKA GONZO, KENNETH MITCHELL, AKA BEAVER, DANA BROWN, KEVIN LADD, SCOTT LADUKE, AKA SCOTT CLARK,
Defendants,
ANTHONY CAROSELLA,
Defendant‐Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT
Before: WALKER, LYNCH, and CHIN, Circuit Judges. Appeal from a final order of the United States District Court for the
District of Vermont (Murtha, J.) denying defendant‐appellantʹs motion to reduce
his sentence pursuant to 18 U.S.C. § 3582(c) and Amendment 782 to the United
States Sentencing Guidelines. Defendant‐appellant contends that the district
court erred in concluding that his amended Guidelines range remained the same,
rendering him ineligible for a sentence reduction.
AFFIRMED.
PAUL J. VAN DE GRAAF, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Christina E. Nolan, United States Attorney for the District of Vermont, Burlington, Vermont, for Appellee.
BARCLAY T. JOHNSON, Assistant Federal Public Defender, for Michael L. Desautels, Federal Public Defender for the District of Vermont, Burlington, Vermont, for Defendant‐Appellant.
PER CURIAM:
In this case, defendant‐appellant Anthony Carosella pleaded guilty
to conspiracy to distribute cocaine base and heroin, conspiracy to commit armed
robbery, and conspiracy to burglarize pharmacies and was sentenced in 2011 to
concurrent 120‐month terms of imprisonment. In 2016, Carosella moved to
‐ 2 ‐
reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the
Guidelines (ʺU.S.S.G.ʺ), which lowered the base offense level for his drug
conviction by two levels. The district court determined that Carosella was
ineligible for a sentence reduction because, even with the two‐level decrease in
the offense level for the drug conviction, his amended Guidelines range
remained the same as it was when he was initially sentenced. Carosella now
appeals, arguing that the district court erred in recalculating his Guidelines
range. For the reasons set forth below, we disagree and affirm the district courtʹs
ruling.
BACKGROUND
On May 5, 2011, pursuant to his guilty pleas to three counts of a
superseding information, the district court sentenced Carosella to concurrent
120‐month terms of imprisonment for: conspiracy to distribute cocaine base and
heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846; conspiracy to
commit armed robbery in violation of 18 U.S.C. § 1951(a); and conspiracy to
burglarize pharmacies in violation of 18 U.S.C. §§ 2118(b) and (d), which
encompassed three separate pharmacy burglaries. At sentencing, the court
divided Carosellaʹs offenses into five groups: Group 1 (drugs); Group 2 (armed
‐ 3 ‐
robbery); Group 3 (the first pharmacy burglary); Group 4 (the second pharmacy
burglary); and Group 5 (the third pharmacy burglary). The court applied the
grouping rules under U.S.S.G. § 3D1.4, calculated a total offense level of 30, and
then granted credit for acceptance of responsibility, resulting in an adjusted total
offense level of 27. Based on Carosellaʹs Category IV criminal history, the court
determined that the Guidelines range was 100 to 125 months. The court denied
Carosellaʹs request for a non‐Guidelines sentence.
In 2014, Amendment 782 to the Guidelines, made retroactively
applicable by Amendment 788, lowered the base offense level for Carosellaʹs
drug conviction by two levels. On December 2, 2016, Carosella filed a motion to
reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).
On March 16, 2017, the district court issued an order denying
Carosellaʹs motion. United States v. Carosella, No. 1:10‐CR‐110 (JGM), 2017 WL
1025806, at *1 (D. Vt. Mar. 16, 2017). After lowering the offense level for
Carosellaʹs drug conviction (Group 1) from 28 to 26, the court determined the
amended Guidelines range by following the same grouping analysis it used in
2011. As it had done before, the district court applied the grouping rules under
U.S.S.G. § 3D1.4, and the resulting calculation was again a total offense level of
‐ 4 ‐
30. The court again granted credit for acceptance of responsibility, resulting once
more in an adjusted total offense level of 27.
Because of the operation of the grouping rules, Carosellaʹs total
offense level did not change. Pursuant to U.S.S.G. § 3D1.4, the district court
added two levels ‐‐ which it had not added in 2011 ‐‐ because the lowered base
offense level also lowered the differential between the highest offense level
(Group 1) and the offense level for the three pharmacy burglaries (Groups 3, 4
and 5).1 That two‐level increase offset the two‐level decrease from Amendment
1 In 2011, the offense level for the drug conviction (Group 1) was 28 and the offense level for each of pharmacy burglaries (Groups 3, 4, and 5) was 19. Because the difference between the offense level for Group 1 and each of Groups 3, 4, and 5 was nine levels, no additional units were assigned to the pharmacy burglaries. See U.S.S.G. § 3D1.4(c) (In determining the combined offense level, ʺ[d]isregard any Group that is 9 or more levels less serious than the Group with the highest offense level.ʺ). Applying U.S.S.G. § 3D1.4, the court assigned one unit to Group 1, one unit to Group 2, and zero units to Groups 3, 4, and 5. The total of two units corresponded to a two‐level increase to the group with the highest offense level, 28, resulting in a total offense level of 30. In 2016, the offense level for Group 1 was reduced from 28 to 26, pursuant to Amendment 782, and the offense levels for all other groups were unchanged. Because the difference between the offense level for Group 1 and each of Groups 3, 4, and 5 was now seven levels rather than nine levels, the district court assigned one‐half unit to each of the pharmacy burglaries. See U.S.S.G. § 3D1.4(b) (In determining the combined offense level, ʺ[c]ount as one‐half Unit any Group that is 5 to 8 levels less serious than the Group with the highest offense level.ʺ). Applying U.S.S.G. § 3D1.4, the court again assigned one unit to Group 1 and one unit to Group 2, and this time it assigned one‐half unit to each of Groups 3, 4, and 5. The total of three‐and‐one‐half units corresponded to a four‐level increase to the group with the highest offense level, 26, resulting in a total offense level of 30 ‐‐ the same level calculated at Carosellaʹs initial sentencing in 2011. ‐ 5 ‐
782.
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17‐896‐cr U.S. v. Carosella
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2017
(Argued: February 7, 2018 Decided: February 22, 2018)
Docket No. 17‐896‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
TODD JARVIS, AKA MIKE HUNT, WAKETA COLEMAN, AKA MA, ANDRE MALDONADO, AKA GONZO, KENNETH MITCHELL, AKA BEAVER, DANA BROWN, KEVIN LADD, SCOTT LADUKE, AKA SCOTT CLARK,
Defendants,
ANTHONY CAROSELLA,
Defendant‐Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT
Before: WALKER, LYNCH, and CHIN, Circuit Judges. Appeal from a final order of the United States District Court for the
District of Vermont (Murtha, J.) denying defendant‐appellantʹs motion to reduce
his sentence pursuant to 18 U.S.C. § 3582(c) and Amendment 782 to the United
States Sentencing Guidelines. Defendant‐appellant contends that the district
court erred in concluding that his amended Guidelines range remained the same,
rendering him ineligible for a sentence reduction.
AFFIRMED.
PAUL J. VAN DE GRAAF, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Christina E. Nolan, United States Attorney for the District of Vermont, Burlington, Vermont, for Appellee.
BARCLAY T. JOHNSON, Assistant Federal Public Defender, for Michael L. Desautels, Federal Public Defender for the District of Vermont, Burlington, Vermont, for Defendant‐Appellant.
PER CURIAM:
In this case, defendant‐appellant Anthony Carosella pleaded guilty
to conspiracy to distribute cocaine base and heroin, conspiracy to commit armed
robbery, and conspiracy to burglarize pharmacies and was sentenced in 2011 to
concurrent 120‐month terms of imprisonment. In 2016, Carosella moved to
‐ 2 ‐
reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the
Guidelines (ʺU.S.S.G.ʺ), which lowered the base offense level for his drug
conviction by two levels. The district court determined that Carosella was
ineligible for a sentence reduction because, even with the two‐level decrease in
the offense level for the drug conviction, his amended Guidelines range
remained the same as it was when he was initially sentenced. Carosella now
appeals, arguing that the district court erred in recalculating his Guidelines
range. For the reasons set forth below, we disagree and affirm the district courtʹs
ruling.
BACKGROUND
On May 5, 2011, pursuant to his guilty pleas to three counts of a
superseding information, the district court sentenced Carosella to concurrent
120‐month terms of imprisonment for: conspiracy to distribute cocaine base and
heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846; conspiracy to
commit armed robbery in violation of 18 U.S.C. § 1951(a); and conspiracy to
burglarize pharmacies in violation of 18 U.S.C. §§ 2118(b) and (d), which
encompassed three separate pharmacy burglaries. At sentencing, the court
divided Carosellaʹs offenses into five groups: Group 1 (drugs); Group 2 (armed
‐ 3 ‐
robbery); Group 3 (the first pharmacy burglary); Group 4 (the second pharmacy
burglary); and Group 5 (the third pharmacy burglary). The court applied the
grouping rules under U.S.S.G. § 3D1.4, calculated a total offense level of 30, and
then granted credit for acceptance of responsibility, resulting in an adjusted total
offense level of 27. Based on Carosellaʹs Category IV criminal history, the court
determined that the Guidelines range was 100 to 125 months. The court denied
Carosellaʹs request for a non‐Guidelines sentence.
In 2014, Amendment 782 to the Guidelines, made retroactively
applicable by Amendment 788, lowered the base offense level for Carosellaʹs
drug conviction by two levels. On December 2, 2016, Carosella filed a motion to
reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).
On March 16, 2017, the district court issued an order denying
Carosellaʹs motion. United States v. Carosella, No. 1:10‐CR‐110 (JGM), 2017 WL
1025806, at *1 (D. Vt. Mar. 16, 2017). After lowering the offense level for
Carosellaʹs drug conviction (Group 1) from 28 to 26, the court determined the
amended Guidelines range by following the same grouping analysis it used in
2011. As it had done before, the district court applied the grouping rules under
U.S.S.G. § 3D1.4, and the resulting calculation was again a total offense level of
‐ 4 ‐
30. The court again granted credit for acceptance of responsibility, resulting once
more in an adjusted total offense level of 27.
Because of the operation of the grouping rules, Carosellaʹs total
offense level did not change. Pursuant to U.S.S.G. § 3D1.4, the district court
added two levels ‐‐ which it had not added in 2011 ‐‐ because the lowered base
offense level also lowered the differential between the highest offense level
(Group 1) and the offense level for the three pharmacy burglaries (Groups 3, 4
and 5).1 That two‐level increase offset the two‐level decrease from Amendment
1 In 2011, the offense level for the drug conviction (Group 1) was 28 and the offense level for each of pharmacy burglaries (Groups 3, 4, and 5) was 19. Because the difference between the offense level for Group 1 and each of Groups 3, 4, and 5 was nine levels, no additional units were assigned to the pharmacy burglaries. See U.S.S.G. § 3D1.4(c) (In determining the combined offense level, ʺ[d]isregard any Group that is 9 or more levels less serious than the Group with the highest offense level.ʺ). Applying U.S.S.G. § 3D1.4, the court assigned one unit to Group 1, one unit to Group 2, and zero units to Groups 3, 4, and 5. The total of two units corresponded to a two‐level increase to the group with the highest offense level, 28, resulting in a total offense level of 30. In 2016, the offense level for Group 1 was reduced from 28 to 26, pursuant to Amendment 782, and the offense levels for all other groups were unchanged. Because the difference between the offense level for Group 1 and each of Groups 3, 4, and 5 was now seven levels rather than nine levels, the district court assigned one‐half unit to each of the pharmacy burglaries. See U.S.S.G. § 3D1.4(b) (In determining the combined offense level, ʺ[c]ount as one‐half Unit any Group that is 5 to 8 levels less serious than the Group with the highest offense level.ʺ). Applying U.S.S.G. § 3D1.4, the court again assigned one unit to Group 1 and one unit to Group 2, and this time it assigned one‐half unit to each of Groups 3, 4, and 5. The total of three‐and‐one‐half units corresponded to a four‐level increase to the group with the highest offense level, 26, resulting in a total offense level of 30 ‐‐ the same level calculated at Carosellaʹs initial sentencing in 2011. ‐ 5 ‐
782. Accordingly, the district court concluded that Carosellaʹs amended
Guidelines range remained the same and he was therefore ineligible for a
sentence reduction.
On appeal, Carosella argues that the district court erred by adding
the two levels after lowering the base offense level for his drug conviction,
because U.S.S.G. § 1B1.10(b)(1) mandates that a district court ʺshall leave all other
guideline application decisions unaffectedʺ when applying a retroactive
amendment. Instead, Carosella argues that the only change the district court
should have made was to apply the two‐level decrease from Amendment 782,
which would have yielded a total offense level of 28, an adjusted total offense
level of 25, and an amended Guidelines range of 84 to 105 monthsʹ
imprisonment. Carosella also contends that, to the extent the language in
U.S.S.G. § 1B1.10(b)(1) is ambiguous, the rule of lenity applies.
DISCUSSION
We review de novo the statutory question of whether a defendant is
eligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) because his
sentence was ʺbased on a sentencing range that was subsequently lowered by the
Sentencing Commission.ʺ United States v. Christie, 736 F.3d 191, 195 (2d Cir. 2013).
‐ 6 ‐
A. Applicable Law
A defendant is eligible for a sentence reduction if he was ʺsentenced
to a term of imprisonment based on a sentencing range that has subsequently
been lowered by the Sentencing Commissionʺ and ʺsuch a reduction is consistent
with applicable policy statements issued by the Sentencing Commission.ʺ 18
U.S.C. § 3582(c)(2); see Dillon v. United States, 560 U.S. 817, 821, 826 (2010).
The scope of resentencing authorized under 18 U.S.C. § 3582(c)(2) is
ʺnarrow.ʺ Dillon, 560 U.S. at 826. Under U.S.S.G. § 1B1.10, a district court must
ʺʹdetermin[e] the amended guideline range that would have been applicable to
the defendantʹ had the relevant amendment been in effect at the time of the
initial sentencing,ʺ and ʺʹshall leave all other guideline application decisions
unaffected.ʹʺ Id. at 827 (quoting U.S.S.G. § 1B1.10(b)(1)). We are ʺbound byʺ
language in the Sentencing Commissionʹs policy statement providing that a
sentence reduction is not authorized if ʺʹan amendment [to the Guidelines range]
. . . is applicable to the defendant but the amendment does not have the effect of
lowering the defendantʹs applicable guideline range because of the operation of
another guideline or statutory provision.ʹʺ United States v. Williams, 551 F.3d 182,
186 (2d Cir. 2009) (alteration in original) (quoting U.S.S.G. § 1B1.10 cmt. 1(A)).
‐ 7 ‐
Moreover, ʺ[t]he ʹsentencing rangeʹ that must have been changed to permit relief
under § 3582(c)(2) is not the base offense level or any other intermediate step in
the guideline calculation, but the bottom‐line, final range that was the basis for
the sentence.ʺ United States v. Taylor, 778 F.3d 667, 672 (7th Cir. 2015).
B. Application
We conclude that the district court correctly determined that
Carosella was ineligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c).
Under U.S.S.G. § 1B1.10(b)(1), the district court had to calculate the amended
Guidelines range that ʺʹwould have been applicable to [Carosella]ʹʺ had
Amendment 782 ʺbeen in effect at the time of the initial sentencingʺ in 2011.
Dillon, 560 U.S. at 827 (quoting U.S.S.G. § 1B1.10(b)(1)). That calculation required
the district court to lower the base offense level of Carosellaʹs drug conviction
and follow the process it would have used in 2011 to determine Carosellaʹs
sentencing range. In doing so, the district court correctly concluded that there
was no change to the ʺbottom‐line, final range that was the basis for [Carosellaʹs]
sentence,ʺ Taylor, 778 F.3d at 672, ʺbecause of the operation of another guideline,ʺ
Williams, 551 F.3d at 186 (quoting U.S.S.G. § 1B1.10 cmt. 1(A)) ‐‐ the grouping
rules provided in U.S.S.G. § 3D1.4.
‐ 8 ‐
Carosella argues that this interpretation is inconsistent with
language in U.S.S.G. § 1B1.10(b)(1) mandating that district courts ʺshall leave all
other guideline application decisions unaffected.ʺ U.S.S.G. § 1B1.10(b)(1). But
the courtʹs 2011 grouping calculation was not a ʺguideline application decision[]ʺ
that we must leave ʺunaffected,ʺ id. (emphasis added) ‐‐ rather, it was a
mechanical application of the grouping rules provided in U.S.S.G. § 3D1.4. See
United States v. Waters, 648 F.3d 1114, 1117–18 (9th Cir. 2011) (rejecting a similar
challenge to the courtʹs reliance on the offense level specified by the career
offender guideline to recalculate an amended Guidelines range, because at the
initial sentencing, ʺ[t]he district courtʹs decision to apply the offense level from
§§ 2D1.1 and 3B1.4 rather than § 4B1.1(b) [the career offender guideline] was not
an ʹapplication decisionʹ within the meaning of § 1B1.10(b). It was
an application of § 4B1.1(b).ʺ (emphasis in original)).
The language Carosella relies on does not require courts to ignore
the effect of a lowered base offense level on the other Guidelines provisions that,
combined with original base offense level, produced the defendantʹs initial
sentencing range. See United States v. Ford, 699 F. Appʹx 812, 817–18 (10th Cir.
2017) (unpublished) (applying career offender guideline under U.S.S.G.
‐ 9 ‐
§ 4B1.1(b), after lowering base offense level pursuant to Amendment 782); United
States v. Koglin, 822 F.3d 984, 987 (7th Cir. 2016) (denying defendant eligibility for
two‐level reduction under U.S.S.G. § 2D1.1(a)(5), after lowering base offense
level pursuant to Amendment 782); United States v. Tolliver, 659 F. Appʹx 560,
563–64 (11th Cir. 2016) (denying defendant eligibility for one‐point reduction
under U.S.S.G. § 3E1.1(b), after lowering base offense level pursuant to
Amendment 782); United States v. Quinn, 576 F.3d 292, 295–96 (6th Cir. 2009)
(approving district courtʹs application of grouping rules under U.S.S.G. § 3D1.4,
after lowering base offense level pursuant to Amendment 706, to calculate
amended Guidelines range).
Because we now join our sister Circuits in concluding that U.S.S.G. §
1B1.10(b)(1) unambiguously does not support Carosellaʹs interpretation, the rule
of lenity does not apply. See United States v. Simpson, 319 F.3d 81, 87 (2d Cir.
2002) (in order for the rule of lenity to apply to a Guideline, the Guideline ʺmust
be ambiguousʺ).
CONCLUSION
The judgment of the district court is AFFIRMED.
‐ 10 ‐