05-5739-cr United States v. Regalado
1 2 UNITED STATES COURT OF APPEALS 3 4 FOR THE SECOND CIRCUIT 5 6 August Term, 2007 7 8 9 (Argued: December 11, 2007 Decided: March 4, 2008 10 11 Amended: May 9, 2008) 12 13 Docket No. 05-5739-cr 14 15 - - - - - - - - - - - - - - - - - - - -X
16 UNITED STATES OF AMERICA,
17 Appellee,
18 -v.-
19 JOSE REGALADO,
20 Defendant-Appellant.
21 - - - - - - - - - - - - - - - - - - - -X
22 Before: JACOBS, Chief Judge, POOLER and SACK, 23 Circuit Judges. 24 25 26 Appeal from the sentence of the United States District
27 Court for the Southern District of New York (Leisure, J.),
28 following defendant’s guilty plea to conspiring to
29 distribute and possess with intent to distribute cocaine
30 base. In light of Kimbrough v. United States, --- U.S. ---,
31 128 S. Ct. 558 (2007), we are unable to discern whether the 1 district court would have imposed a non-Guidelines sentence
2 had it been aware that “the cocaine Guidelines, like all
3 other Guidelines, are advisory only,” and that it therefore
4 had discretion to deviate from the Guidelines where
5 necessary to serve the objectives of sentencing under 18
6 U.S.C. § 3553(a). Id. at 564, 575. Without that
7 information, we cannot say whether there was plain error.
8 Accordingly, the case is remanded for further proceedings
9 consistent with this opinion.
10 11 B. Alan Seidler, New York, NY, 12 for Defendant-Appellant. 13 14 Stephen A. Miller, Assistant 15 United States Attorney (Michael 16 J. Garcia, United States 17 Attorney, Southern District of 18 New York, on the brief, Daniel 19 A. Braun, Assistant United 20 States Attorney, of counsel), 21 United States Attorney’s Office 22 for the Southern District of New 23 York, New York, NY, for 24 Appellee. 25 26 PER CURIAM1 27 28 Jose Regalado appeals from the sentence of 262 months’
29 imprisonment imposed by the United States District Court for
1 After due consideration of the government’s petition for rehearing, which is denied, we have sua sponte amended our opinion. 2 1 the Southern District of New York (Leisure, J.), following
2 his May 1, 2003 guilty plea to conspiring to distribute and
3 possess with intent to distribute cocaine base. In light of
4 Kimbrough v. United States, --- U.S. ---, 128 S. Ct. 558
5 (2007), we are unable to discern whether the district court
6 would have imposed a non-Guidelines sentence had it been
7 aware that “the cocaine Guidelines, like all other
8 Guidelines, are advisory only,” and that it therefore had
9 discretion to deviate from the Guidelines where necessary to
10 serve the objectives of sentencing under 18 U.S.C. §
11 3553(a). Id. at 564, 575. We remand the case to the
12 district court for further proceedings necessary to
13 determine whether resentencing is required. 2
15 BACKGROUND
16 Regalado pleaded guilty to conspiring to distribute and
17 possess with intent to distribute cocaine base in violation
18 of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). At sentencing,
19 the district court determined that Regalado distributed more
20 than 1.5 kilograms of cocaine base, which resulted in a base
2 Prior to filing, this opinion has been circulated to all members of this Court. See, e.g., United States v. Crosby, 397 F.3d 103, 105 n.1 (2d Cir. 2005). 3 1 offense level of 38. See U.S.S.G. § 2D1.1(c)(1) (2004).
2 After a four-level enhancement for Regalado’s leadership
3 role, see § 3B1.1(a), and a three-level reduction for
4 acceptance of responsibility, see § 3E1.1(a) and (b), the
5 resulting sentencing range (at criminal history category I)
6 was 262-327 months. Regalado unsuccessfully sought a
7 downward departure based on extraordinary family
8 circumstances. However, he did not ask the district court
9 to deviate from the Guidelines on the ground that the base
10 offense levels for crack cocaine fail to serve the
11 objectives of sentencing under § 3553(a). Judge Leisure
12 sentenced Regalado principally to a term of 262 months’
13 imprisonment, the bottom of the Guidelines range.
14 Regalado appealed, and we remanded the case for further
15 proceedings pursuant to United States v. Crosby, 397 F.3d
16 103 (2d Cir. 2005). On remand, the government argued that
17 the original Guidelines sentence was reasonable and should
18 not be disturbed. Regalado’s Crosby submission requested
19 leniency, but made no argument bearing on the district
20 court’s discretion to deviate from the sentencing ranges for
21 crack cocaine offenses. The district court reviewed its
22 original Guidelines calculation, gave renewed consideration
4 1 to the 18 U.S.C. § 3553(a) factors, and discussed and
2 responded to the parties’ Crosby submissions. It then
3 concluded that it would not have imposed a non-trivially
4 different sentence had the Guidelines been advisory rather
5 than mandatory. It therefore declined to resentence
6 Regalado, and this appeal followed.
8 DISCUSSION
9 I
10 The Guidelines’ drug quantity table sets base offense
11 levels for crack and powder cocaine offenses. See U.S.S.G §
12 2D1.1. In Kimbrough v. United States, --- U.S. ----, 128 S.
13 Ct. 558 (2007), the Supreme Court held that “the cocaine
14 Guidelines, like all other Guidelines, are advisory only.”
15 Id. at 564. Although a sentencing judge must “give
16 respectful consideration to the Guidelines” among “the array
17 of factors warranting consideration,” the judge also has
18 discretion to determine that “in the particular case, a
19 within-Guidelines sentence is ‘greater than necessary’ to
20 serve the objectives of sentencing.” Id. at 564, 570
21 (citing 18 U.S.C. § 3553(a)). “In making that
22 determination, the judge may consider the disparity between
5 1 the Guidelines’ treatment of crack and powder cocaine
2 offenses,” so long as the court does not “purport to
3 establish a ratio of its own.” Kimbrough, 128 S. Ct. at
4 564, 575. Kimbrough thus emphasized the broad discretion of
5 a district court “‘to tailor [a] sentence in light of other
6 statutory concerns.’” Id. at 570 (quoting United States v.
7 Booker, 543 U.S. 220, 245-46 (2005)).
8 In our review, we owe deference to that discretion.
9 Kimbrough, 128 S. Ct. at 576 (“The ultimate question in
10 Kimbrough’s case is . . . ‘whether the District Judge abused
11 his discretion in determining that the § 3553(a) factors
12 supported a sentence of [15 years] and justified a
13 substantial deviation from the Guidelines range.’”) (quoting
14 Gall v. United States, --- U.S. ----, 128 S. Ct. 586, 600
15 (2007) (alteration in original)). As the Supreme Court
16 recently explained in Gall v. United States, “the appellate
17 court must review the sentence under an abuse-of-discretion
18 standard.” 128 S. Ct. at 597. First, we “ensure that the
19 district court committed no significant procedural error,”
20 such as “treating the Guidelines as mandatory . . . .” Id.
21 Next, we review the substantive reasonableness of the
22 sentence for abuse of discretion. Id. Such review should
6 1 “take into account the totality of the circumstances,
2 including the extent of any variance from the Guidelines
3 range. . . . It may consider the extent of the deviation,
4 but must give due deference to the district court’s decision
5 that the § 3553(a) factors, on a whole, justify the extent
6 of the variance.” Id. Furthermore, we may not reverse the
7 district court simply because we would have imposed a
8 different sentence. Id.
9 This guidance and direction from the Supreme Court
10 confirms the broad deference that this Circuit has afforded
11 the sentencing discretion of the district courts. See,
12 e.g., United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.
13 2006); United States v. Crosby, 397 F.3d 103, 112-14 (2d
14 Cir. 2005); United States v. Fleming, 397 F.3d 95, 100 (2d
15 Cir. 2005). However, until Kimbrough and Gall, this Circuit
16 tended to discourage district courts from deviating from the
17 crack cocaine Guidelines. Our opinion in United States v.
18 Castillo, 460 F.3d 337 (2d Cir. 2006), may have been over-
19 read or misread to inhibit any deviation. District courts
20 may also have been inhibited from exercising their full
21 discretion by the fact that the Sentencing Commission
22 borrowed the 100-to-1 Guidelines ratio from the mandatory
7 1 minimums for drug offenses decreed by Congress. Id. at 567
2 (explaining origin of Guidelines crack to powder ratio).
3 Therefore, when a district court sentenced a defendant for a
4 crack cocaine offense before Kimbrough, there was an
5 unacceptable likelihood of error; certainly, the court acted
6 under the influence of a widespread assumption that is now
7 known to be erroneous. Where the defendant failed to argue
8 for such a deviation from the Guidelines range before the
9 sentencing court, it is impossible to know, ex post, whether
10 the court would have exercised its discretion to mitigate
11 the sentencing range produced by the 100-to-1 disparity.
12 In this situation, we review for plain error. “To
13 demonstrate plain error, a defendant must show (1) error,
14 (2) that is plain at the time of appellate review, and (3)
15 that affects substantial rights. Where these conditions are
16 met, we have the discretion to notice a forfeited error if
17 (4) it seriously affects the fairness, integrity, or public
18 reputation of judicial proceedings.” United States v.
19 Quinones, 511 F.3d 289, 316 (2d Cir. 2007) (citing United
20 States v. Olano, 507 U.S. 725, 732 (1993); United States v.
21 Rybicki, 354 F.3d 124, 129 (2d Cir. 2003) (en banc); United
22 States v. Thomas, 274 F.3d 655, 667 (2d Cir. 2001) (en
8 1 banc)). Since the district court was, quite understandably,
2 unaware of (or at least insecure as to) its discretion to
3 consider that the 100-to-1 ratio might result in a sentence
4 greater than necessary, there was an unacceptable likelihood
5 of error. While the risk of such error in crack sentences
6 imposed between Booker and Castillo is not so high as to
7 invariably satisfy the first step of plain error analysis,
8 it is sufficiently real to merit identification in
9 individual cases. As we have held, “in the sentencing
10 context there are circumstances that permit us to relax the
11 otherwise rigorous standards of plain error review to
12 correct sentencing errors.” United States v. Sofsky, 287
13 F.3d 122, 125 (2d Cir. 2002). Such relaxation is
14 appropriate here because a sizable portion of post-Booker,
15 pre-Castillo cases where error is identified will also
16 satisfy the third and fourth plain error factors given the
17 judiciary’s long-standing concerns about the severity of the
18 crack Guidelines. See, e.g., United States v. Moore, 54
19 F.3d 92, 99, 102 (2d Cir. 1995) (rejecting equal protection
20 challenge to crack Guidelines but commenting that “[t]he
21 statistical evidence of disparate impact and several
22 questionable passages in the legislative record are
9 1 discomfiting” and that “Moore’s arguments raise troublesome
2 questions about the fairness of the crack cocaine sentencing
3 policy”); United States v. Singleterry, 29 F.3d 733, 741
4 (1st Cir. 1994) (“Although Singleterry has not established a
5 constitutional violation, he has raised important questions
6 about the efficacy and fairness of our current sentencing
7 policies for offenses involving cocaine substances.”). The
8 unusual circumstances surrounding application of the crack
9 Guidelines in the Circuit after Booker and before Castillo
10 justify a narrow and limited exception to our general rule
11 that sentencing courts are presumed to know and follow the
12 applicable sentencing law. See United States v. Fernandez,
13 443 F.3d 19, 30 (2d Cir. 2006); United States v. Gonzalez,
14 281 F.3d 38, 42 (2d Cir. 2002).
15 If the district court did not fully appreciate the
16 extent of its discretion to deviate from the crack
17 Guidelines range prior to Kimbrough, there was an error.
18 After Kimbrough, such error would be plain. The remaining
19 questions are whether the likely error affects substantial
20 rights and whether the error seriously affects the fairness,
21 integrity or public reputation of judicial proceedings. We
22 cannot address those issues on the present record.
10 1 II
2 In United States v. Crosby we confronted an analogous
3 situation. There, the likely error was that prior to United
4 States v. Booker, 543 U.S. 220 (2005), a district court
5 understood the Guidelines to be mandatory. See Crosby, 397
6 F.3d at 115-16. However, the defendant failed to object to
7 the mandatory application of the Guidelines below, and so we
8 reviewed for plain error. Id. at 116. We assumed that the
9 district court was influenced by the widespread assumption
10 that the Guidelines were mandatory, which was error, and we
11 saw after Booker that the error was plain. However, we
12 could not tell whether the error affected a substantial
13 right because we could not tell on appeal whether the
14 district court would have imposed a non-trivially different
15 sentence had it recognized that the Guidelines were
16 advisory. Accordingly, we ruled that “pre-Booker/Fanfan
17 sentences pending on direct review [require] remand to the
18 district court, not for the purpose of a required
19 resentencing, but only for the more limited purpose of
20 permitting the sentencing judge to determine whether to
21 resentence, now fully informed of the new sentencing
22 regime.” Id. at 117 (emphasis in original). Thus, on a
11 1 Crosby remand, the district court must indicate whether, at
2 the time of the original sentence, it would have imposed a
3 non-trivially different sentence under advisory Guidelines.
4 Id. at 118. If so, vacatur and resentencing is required.
5 Id. at 120. If not, the district court must “place on the
6 record a decision not to resentence, with an appropriate
7 explanation,” id., and we will then review the sentence for
8 reasonableness. United States v. Williams, 475 F.3d 468,
9 474 (2d Cir. 2007).
10 Similarly, when the sentencing of a defendant for a
11 crack cocaine offense occurred before Kimbrough, we cannot
12 tell whether the district court would have exercised its now
13 clear discretion to mitigate the sentencing range produced
14 by the 100-to-1 ratio. If it would have, an affirmance of
15 the original sentence would “seriously affect[] the
16 fairness, integrity, or public reputation of judicial
17 proceedings,” Quinones, 511 F.3d at 316, because imposition
18 of a sentence that the district court would not have imposed
19 had it fully appreciated the extent of its discretion would,
20 in our view, “seriously undermine the public’s confidence in
21 the judicial process.” United States v. Keigue, 318 F.3d
22 437, 445 (2d Cir. 2003) (discussing district court’s
12 1 erroneous use of expired version of the Guidelines). “This
2 is especially true given the relative ease of correcting the
3 sentencing error on remand, thus accentuating the potential
4 unfairness of allowing the district court’s error to stand.”
5 United States v. Gordon, 291 F.3d 181, 195 (2d Cir. 2002).
6 We therefore adopt the Crosby mechanism and apply it
7 here. Where a defendant has not preserved the argument that
8 the sentencing range for the crack cocaine offense fails to
9 serve the objectives of sentencing under § 3553(a), we will
10 remand to give the district court an opportunity to indicate
11 whether it would have imposed a non-Guidelines sentence
12 knowing that it had discretion to deviate from the
13 Guidelines to serve those objectives. If so, the court
14 should vacate the original sentence and resentence the
15 defendant. If not, the court should state on the record
16 that it is declining to resentence, and it should provide an
17 appropriate explanation for this decision. On appeal, if we
18 have not already done so, we will review the sentence for
19 reasonableness.
20 Crosby recognized that a resentencing might yield a
21 higher sentence. That is a remote and (at most) rare
22 prospect on a remand under Kimbrough. Nevertheless, (as in
13 1 Crosby) the “remand, on a defendant’s appeal, that
2 authorizes a district judge to consider whether to
3 resentence and that permits resentencing should include an
4 opportunity for a defendant to avoid resentencing by
5 promptly notifying the district judge that resentencing will
6 not be sought.” Crosby, 397 F.3d at 118. Likewise, we
7 “intimate no view at this time as to whether the Ex Post
8 Facto Clause would prohibit a court from imposing a more
9 severe sentence than a defendant would have received had the
10 [cocaine] Guidelines [been considered] mandatory.” Id. at
11 117 n.17 (citing United States v. Broderson, 67 F.3d 452,
12 456 (2d Cir. 1995)).
14 III
15 Regalado’s brief on appeal, filed pre-Kimbrough, does
16 not contest the 100-to-1 ratio. (The arguments Regalado did
17 raise on appeal would ordinarily have been considered and
18 decided in a summary order, on the grounds set forth in the
19 margin.3 ) Because Regalado does not raise this argument on
3 Regalado argues that his sentence was substantively unreasonable, but we owe deference to the district court’s evaluation of his personal circumstances, United States v. Gallante, 111 F.3d 1029, 1034 (2d Cir. 1997), and cannot conclude that his sentence “exceed[s] the bounds of 14 1 appeal, we would ordinarily treat it as forfeited. United
2 States v. Pereira, 465 F.3d 515, 520 n.5 (2d Cir. 2006). We
3 are not required to do so, however. Sniado v. Bank Austria
4 AG, 378 F.3d 210, 213 (2d Cir. 2004). On the circumstances
5 presented by this appeal, we think it the better course to
6 consider the argument.
7 We cannot know whether the district court would have
8 imposed a non-Guidelines sentence had it been aware (or
9 fully aware) of its discretion to deviate from the crack
allowable discretion.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006) (citation and internal quotation marks omitted). We also reject Regalado’s Sixth Amendment claim that his offense level was calculated based on a drug quantity determined by the district court because during his plea allocution he admitted to distributing more than 1.5 kilograms of crack cocaine, more than the 50 grams necessary to trigger a ten-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A). In addition, Regalado’s (unpreserved) due process challenge to the 100-to-1 powder to crack cocaine ratio underlying his sentence is without merit as we have repeatedly rejected similar constitutional challenges. See, e.g., United States v. Stevens, 19 F.3d 93, 97 (2d Cir. 1994). As for Regalado’s ineffective assistance of counsel claim, he argues only that his trial attorney failed to raise the above constitutional challenges to his sentence, but “[f]ailure to make a meritless argument does not amount to ineffective assistance.” United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999). It is therefore “beyond any doubt” that his attorney’s assistance was not ineffective. United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990).
15 1 cocaine ranges in light of the objectives of sentencing.4
2 Because we are unable to tell whether the likely procedural
3 error (i.e., unawareness of discretion to consider that the
4 100-to-1 ratio may cause a particular sentence to be
5 excessive) affected substantial rights and affected the
6 fairness, integrity or public reputation of judicial
7 proceedings, we must remand.5
9 IV
10 After additional research and experience with the
11 Guidelines, the Sentencing Commission concluded that the
4 This appeal presents an additional wrinkle because on a Crosby remand–-where the issue is whether the sentencing judge would have imposed a non-trivially different sentence had it anticipated Booker--there would have been no occasion for the Court to consider the harshness of the 100-to-1 ratio. Even if the court did consider this issue, it would not have had to say so explicitly. However, where, as here, a district court declines to resentence on a Crosby remand, we still review the underlying sentence for reasonableness. United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007). Therefore, we must assess whether the original sentencing was infected by procedural error. Id. 5 Should Regalado appeal from the district court’s decision on remand, “the law of the case doctrine ordinarily will bar [him] from renewing challenges to rulings made by the sentencing court that were adjudicated by this Court–-or that could have been adjudicated by us had [Regalado] made them–-during the initial appeal” that led to a remand. Williams, 475 F.3d at 475. 16 1 100-to-1 powder to crack ratio fails to meet the objectives
2 of sentencing because it rests on unsupported assumptions
3 about the relative harmfulness of the drugs, it punishes
4 “retail” crack dealers more harshly than “wholesale” drug
5 distributors, and it promotes an unwarranted disparity based
6 on race. Kimbrough, 128 S. Ct. at 568 (citing United States
7 Sentencing Commission, Report to Congress: Cocaine and
8 Federal Sentencing Policy 91-103 (May 2002)). Repeated
9 efforts by the Commission to reduce the crack to powder
10 ratio beginning in 1995 failed to induce congressional
11 action. Kimbrough, 128 S. Ct. at 569.
12 However, the Commission recently reduced the base
13 offense level associated with each quantity of crack by two
14 levels, effective November 1, 2007. See U.S.S.G. § 2D1.1
15 (2007); Amendments to the Sentencing Guidelines for United
16 States Courts, 72 Fed. Reg. 28571-28572 (2007). That change
17 has been given retroactive effect because the Sentencing
18 Commission added this amendment to those listed at U.S.S.G.
19 § 1B1.10(c). See United States v. Garcia, 339 F.3d 116, 120
20 (2d Cir. 2003). Therefore, the district courts now have
21 jurisdiction pursuant to 18 U.S.C. § 3582(c)(2) to decide in
22 the first instance whether to modify previously-imposed
17 1 sentences where the cocaine ranges on which they were based
2 have subsequently been lowered. To invoke the district
3 courts’ jurisdiction, defendants should move for
4 modification of their sentences pursuant to 18 U.S.C. §
5 3582(c)(2) in the district courts. (Assistance under the
6 Criminal Justice Act can be expected to be available for
7 such motions.) In deciding whether to modify the sentence,
8 district courts must consider the factors set forth in 18
9 U.S.C. § 3553(a) anew and in light of Gall and Kimbrough to
10 the extent that they may be applicable, and relevant
11 Sentencing Commission policy statements. See 18 U.S.C. §
12 3582(c)(2).
13 In considering the present appeal, we recognize that
14 whether we remand now or consign Regalado to seeking relief
15 by motion, the ultimate result may well be the same. There
16 are certain factual equivalencies between deciding whether
17 one would have imposed a non-Guidelines sentence with
18 broader discretion to deviate from the Guidelines, and
19 arriving at a different sentence by a different Guidelines
20 computation entirely (which might obviate the need to
21 exercise that discretion). At the same time, it makes
22 little sense to allow a judgment to become final even though
18 1 the district court would not have imposed it in light of its
2 now better defined powers so that the same essential
3 question can be presented by motion. Therefore, the best
4 course is to remand to the district court.
6 CONCLUSION
7 The case is remanded for further proceedings consistent
8 with this opinion.