United States v. Sanchez

• Court: Court of Appeals for the First Circuit
• Decided: April 16, 1996
• Docket: 95-1751
• Status: Published

Opinion

USCA1 Opinion

April 16, 1996    UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                                     ____________



          No. 95-1751



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                    ANGEL SANCHEZ,



                                Defendant, Appellant.



                                     ____________


ERRATA SHEET


The  opinion of  this  Court issued  on  April 8,  1996,  is

          amended as follows:



               Page 8, first line  of the last paragraph:   Delete "agreed"

          and insert in place thereof "argued".



April 12, 1996    UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                                     ____________



          No. 95-1751



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                    ANGEL SANCHEZ,



                                Defendant, Appellant.



                                     ____________


ERRATA SHEET


The  opinion of  this  court issued  on  April 8,  1996,  is

          amended as follows:



               Page 4, heading:  Change  the second line of the heading  by

          deleting "U.S.C." and inserting in place thereof "U.S.S.G."



               Page 6, line 11:   Delete "Committee's" and insert  in place

          thereof "Commission's".



               Page  9, third paragraph:  Delete all but the first sentence

          and insert in place of deleted material the following:  



               Section 1B1.10  is a  policy statement relative  to the

               retroactivity of amendments.   Section 1B1.10(c)  lists

               those   substantive   Amendments    intended   to    be

               retroactive.  The two-level  reduction was added to the

               Guidelines  by Amendment  515.   This Amendment  is not

               listed in Section 1B1.10(c).



               Page  9, fourth paragraph, lines  3-5:  Delete the bracketed

          material and insert in place thereof:  



               [Section 80001(b) of the  Violent Crime Control and Law

               Enforcement Act of 1994 which directs the Commission to

               implement Section 80001(a) (the safety valve statute)]



UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 95-1751



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                    ANGEL SANCHEZ,



                                Defendant, Appellant.


____________________



                    APPEAL FROM THE UNITED STATES DISTRICT COURT 



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                   [Hon. Joseph A. DiClerico, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                  Cyr, Circuit Judge,
                                       _____________

                            Bownes, Senior Circuit Judge,
                                    ____________________

                              and Stahl, Circuit Judge.
                                         _____________



                                 ____________________



            M.  Kristin Spath,  Attorney,  with whom  Bjorn  Lange,  Assistant
            _________________                         ____________

        Federal Defender, was on brief for appellant.

            Jean B. Weld, Assistant United States  Attorney, with whom Paul M.
            ____________                                               _______

        Gagnon, United States Attorney, was on brief for appellee.
        ______


____________________



                                    April 8, 1996

                                 ____________________



BOWNES, Senior Circuit Judge.  This is a sentencing
                      BOWNES, Senior Circuit Judge.
                              ____________________



            case.   Defendant-appellant Angel  Sanchez was indicted under



            21  U.S.C.    841(a)(1)  on  five  counts of  possessing  and



            distributing cocaine base -"crack  cocaine."  He entered into



            a plea agreement  with the government which  provided that he



            would plead guilty to counts one through four; count five was



            dismissed.   Prior to  signing the plea  agreement, defendant



            reserved   his   right  to   challenge   at   sentencing  the



            cocaine/cocaine  base sentencing  disparity.   Defendant  was



            sentenced to 108 months' incarceration with a  recommendation



            that  he be  placed in  a 1,000  hour drug  treatment program



            while in prison.  Part of the sentence was supervised release



            for  five years  after  release from  prison.   He  was  also



            assessed $200.00.



                      Defendant raises three issues on appeal:



                      (1)  The  district  court  erred  in

                           refusing    to   consider    at

                           sentencing   expert   testimony

                           proffered   by   defendant   in

                           support of his "rule of lenity"

                           challenge   to   the   enhanced

                           statutory   penalties   in   21

                           U.S.C.    841(B)(1)(b)(III) for

                           "cocaine base".



                      (2)  The  district  court  erred  in

                           failing to  consider a downward

                           departure under U.S.S.G. 5K2.0.



                      (3)  The defendant was entitled to a

                           two  level   reduction  of  the

                           applicable  offense  level,  in

                           order    to    implement    the

                           statutory  intent  of  the  so-

                           called      "safety      valve"


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                                          2



provisions of the Violent Crime

                           Control and Law Enforcement Act

                           of    1994,    18   U.S.C.     

                           3553(f)(1)-(5).


The Rule of Lenity Challenge to the 
                         The Rule of Lenity Challenge to the 
                         ____________________________________

                                Enhanced Penalties in 
                                Enhanced Penalties in 
                                ______________________

                   21 U.S.C.   841(b)(1)(b)(III) For Cocaine Base.
                   21 U.S.C.   841(b)(1)(b)(III) For Cocaine Base.
                   _______________________________________________



                      This issue,  the centerpiece of  defendant's brief,



            is  foreclosed by our decision in United States v. Camilo, 71
                                              _______________________



            F.3d  984 (1st Cir.  1995), which was  decided after briefing



            and  oral argument in this  case.  An  identical challenge to



            the  enhanced  penalties  for  crack cocaine  was  raised  in



            Camilo.  Id. at 989-90.  We rejected it for two reasons:
            ______   ___



                      First, the rule  of lenity argument fails

                      for essentially the same reason that this

                      circuit previously  rejected the argument

                      that scientific equivalence requires that

                      crack   offenders   be  given   the  same

                      sentences as those who traffic in cocaine

                      powder.  United States v. Singleterry, 29
                               ____________________________

                      F.3d 733, 740 (1st Cir. 1994).



                      . . . .



                         Second, in light of recent legislative

                      developments   we   conclude   that   the

                      Sentencing Commission cannot  be said  to

                      have  failed in  its  statutory  duty  to

                      investigate the distinction between crack

                      and cocaine  powder.  In response  to the

                      Sentencing  Commission's  April 13,  1995

                      vote, the House of Representatives joined

                      the  Senate on October 18, 1995 in voting

                      to retain the current  mandatory sentence

                      for   possession    of   crack   cocaine,

                      maintaining disparate sentences for crack

                      and  powder  cocaine  possession.     See
                                                            ___

                      Pub.L. No.  104-38,   1,  109 Stat.  334,

                      334 (1995).  And on October 30, 1995, the

                      President  signed  this  bill  into  law.

                      These  actions   preempt  the  Sentencing


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                                          3



Commission's April 13,  1995 decision  to

                      eliminate  the distinction  between crack

                      and cocaine powder from taking  effect on

                      November  1,  1995.    See  28  U.S.C.   
                                             ___

                      994(p).



            Id. at 990.
            ___



                        Failure of the District Court to Grant
                        Failure of the District Court to Grant
                        ______________________________________

                     a Downward Departure Under U.S.S.G.   5K2.0.
                     a Downward Departure Under U.S.S.G.   5K2.0.
                     ____________________________________________



                      The law  in this Circuit on  downward departures is



            clear.  We  lack jurisdiction  to review an  appeal which  is



            based on the discretionary  judgment of the sentencing judge.



            We do,  however, have jurisdiction  to consider a  refusal to



            depart  downward where  the sentencing  judge's decision  was



            based  on the mistaken belief  that he was  prohibited by law



            from doing so.  See United States v. Pierro, 32 F.3d 611, 619
                            ___ _______________________



            (1st Cir. 1994), and cases cited therein.



                      This case,  however, does not hinge  on whether the



            sentencing judge made a  discretionary decision not to depart



            downward or one based  on his perception that he  was legally



            constrained from doing so.



                      Section   5K2.0  of  the   Guidelines  provides  in



            pertinent part:



                      Grounds for Departure (Policy Statement)
                      _____________________

                      Under 18 U.S.C.    3553(b) the sentencing

                      court  may impose a  sentence outside the

                      range   established  by   the  applicable

                      guideline, if the court finds "that there

                      exists   an  aggravating   or  mitigating

                      circumstance of  a kind, or to  a degree,

                      not  adequately taken  into consideration

                      by    the   Sentencing    Commission   in

                      formulating  the  guidelines that  should

                      result  in  the  sentence different  from


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                                          4



that described." . .  .  The  controlling

                      decision as to whether and to what extent

                      departure  is warranted can  only be made

                      by the courts.



                      Defendant's  argument at  sentencing and  before us



            was  that a  downward departure  was warranted under    5K2.0



            because   of  a  circumstance   not  adequately   taken  into



            consideration by  the  Sentencing Commission  in  formulating



            Guideline   2D1.1(c),  (the   Drug  Quantity  Table).     The



            circumstance relied  on was "the findings and recommendations



            of  the Commission's  congressionally mandated  study of  the



            disparity between  powder and 'crack' cocaine."   Defendant's



            Brief at 14.



                      In  rejecting  defendant's  motion  for  a downward



            departure the district judge stated:



                         THE  COURT:  The Court appreciates the

                      fact that the  Sentencing Commission,  at

                      the  request of Congress,  has been asked

                      to review the  100-to-1 ratio.   However,

                      all we have at this  point in time is the

                      Sentencing  Commission's recommendations.

                      And in the opinion of the Court the Court

                      must  live within the current law and the

                      current Guidelines as  written now;  that

                      it would be  inappropriate for the  Court

                      essentially  to  adopt   as  new   policy

                      matters     which     only     constitute

                      recommendations and have  not been  acted

                      upon by  the United States Congress.   We

                      do not  know what  Congress  may do  with

                      those recommendations;  whether they will

                      be rejected in toto, whether they will be

                      adopted  in toto, or  whether they may be

                      adopted  with changes.   So  it would  be

                      pure speculation for  the Court really to

                      operate  on  the  assumption  that  these

                      changes  are going  to become  policy and

                      law.


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                                          5



Defendant argues that this statement shows that the



            sentencing judge believed that  he lacked the legal authority



            to depart from the  guideline range and thus his  decision is



            appealable as a mistake of law.  The government contends that



            the  judge   exercised  his   discretion  in  not   departing



            downwards,   focusing   on   the   phrase,   "it   would   be



            inappropriate."



                      We need  not settle this argument  because it makes



            no  difference.  We rule  that the circumstance  relied on by



            defendant,  for  a  downward  departure,  the  findings   and



            recommendations  of  the  Sentencing  Commission  relative to



            changing  the sentence  disparity between  cocaine  and crack



            cocaine, is  not a  ground for  departure under    5K2.0.   A



            Sentencing Commission's recommendation to the Congress is not



            the  kind  of  "circumstance"  that   the  provision  covers.



            Moreover,  we  cannot blind  our eyes  to  the fact  that the



            Congress shot down the Commission's recommendation.  In other



            words,  we affirm the ruling of the district judge whether it



            was discretionary or not.



                    Whether Defendant was Entitled to a Two-Level
                    Whether Defendant was Entitled to a Two-Level
                    _____________________________________________

                  Reduction Because of the "Safety Valve" Provisions
                  Reduction Because of the "Safety Valve" Provisions
                  __________________________________________________

                      of the Violent Crime Control Act of 1994.
                      of the Violent Crime Control Act of 1994.
                      _________________________________________



                      We   start  with   the  so-called   "safety  valve"



            provisions of  the Violent Crime Control  and Law Enforcement



            Act of 1994.  18 U.S.C.   3553(f) provides:



                         (f)    Limitation on  applicability of
                         (f)    Limitation on  applicability of

                      statutory  minimums  in certain  cases.--
                      statutory  minimums  in certain  cases.


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                                          6



Notwithstanding  any  other provision  of

                      law,  in  the  case of  an  offense under

                      section  401,   404,   or  406   of   the

                      Controlled Substances Act (21 U.S.C. 841,

                      844, 846) or section  1010 or 1013 of the

                      Controlled  Substances Import  and Export

                      Act (21 U.S.C. 961, 963), the court shall

                      impose a sentence pursuant  to guidelines

                      promulgated   by    the   United   States

                      Sentencing  Commission under  section 994

                      of  title   28  without  regard   to  any

                      statutory minimum sentence, if  the court

                      finds at sentencing, after the Government

                      has been afforded the opportunity to make

                      a recommendation, that--



                             (1)  the  defendant does  not

                           have   more  than   1  criminal

                           history  point,  as  determined

                           under       the      sentencing

                           guidelines;



                              (2)  the  defendant did  not

                           use   violence    or   credible

                           threats of  violence or possess

                           a  firearm  or other  dangerous

                           weapon   (or   induce   another

                           participant   to   do  so)   in

                           connection with the offense;



                             (3)    the  offense  did  not

                           result  in   death  or  serious

                           bodily injury to any person;



                              (4) the defendant was not an

                           organizer, leader,  manager, or

                           supervisor  of  others  in  the

                           offense,  as  determined  under

                           the  sentencing guidelines  and

                           was not engaged in a continuing

                           criminal enterprise, as defined

                           in 21 U.S.C. 848; and



                              (5)  not later than the time

                           of the  sentencing hearing, the

                           defendant     has    truthfully

                           provided to  the Government all

                           information  and  evidence  the

                           defendant  has  concerning  the

                           offense  or offenses  that were


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                                          7



part  of  the  same  course  of

                           conduct or of  a common  scheme

                           or plan, but the fact  that the

                           defendant  has  no relevant  or

                           useful  other   information  to

                           provide or  that the Government

                           is   already   aware   of   the

                           information shall  not preclude

                           a  determination  by the  court

                           that the defendant has complied

                           with this requirement.



                      In  arriving  at  the  incarceration  time  of  108



            months, the judge found that  defendant met all the  criteria



            of the safety valve  provisions.  Defendant was sentenced  on



            July  11,  1995.    The  Sentencing  Commission  proposed  an



            amendment to   2D1.1(b)  (specific offenses  characteristics)



            on May 10, 1995, to become effective November 1, 1995, unless



            modified  or  rejected  by  the Congress,  neither  of  which



            occurred.  The proposed amendment, therefore, became law.  It



            is part (4) of   2D1.1(b).  It provides:



                      (4)  If  the   defendant  meets  the

                           criteria    set     forth    in

                           subdivisions (1)-(5)  of  5C1.2

                           (Limitations  on  Applicability

                           of Statutory  Minimum Sentences

                           in   Certain  Cases)   and  the

                           offense level determined  above

                           is   level   26   or   greater,
                                        26

                           decrease by 2 levels.1
                                       2



            At sentencing  the judge  refused to apply  the then-proposed



            guideline because it had not yet been enacted.


____________________



            1.  Subdivisions (1)-(5) of   5C1.2 state verbatim the safety

            valve provisions of 18 U.S.C.   3553(f).



                                         -8-
                                          8



The  question before  us  is not  what the  parties



            agrued and  briefed:   whether the proposed  amendment should



            have  been applied.   The  issue now  is whether  the enacted



            guideline should be applied retroactively.  Unfortunately for



            defendant, the answer is "no."



                      There  is a  solid  line of  cases in  this Circuit



            holding that Guideline  amendments are applied  retroactively



            if they clarify a  Guideline but are not  so applied if  they



            substantively  change  a Guideline.    See  United States  v.
                                                   ___  _________________



            LaCroix,  28 F.3d 223, 227 n.4 (1st Cir. 1994); United States
            _______                                         _____________



            v.  Prezioso,  989 F.2d  52, 53  (1st  Cir. 1993);  Isabel v.
            ____________                                        _________



            United States, 980 F.2d 60, 62 (1st Cir. 1992); United States
            _____________                                   _____________



            v. Havener, 905 F.2d 3, 4-8 (1st Cir. 1990).
            __________



                      The  Guideline  amendment  appears,   without  much



            doubt,  to be substantive.  It added an additional and wholly



            new part to  Guideline   2D1.1(b).   It does not  clarify the



            provisions of   5C1.2;  it mandates a decrease of  two levels



            if these provisions are  met and the  offense level is 26  or



            greater.



                      In addition to  our own analysis, we note  that the



            Sentencing Commission  did not consider this  amendment to be



            retroactive.  Section 1B1.0 is a policy statement relative to



            the retroactivity  of  amendments.   Section 1B1.10(c)  lists



            those substantive Amendments intended to be retroactive.  The


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                                          9



two-level reduction  was added to the  Guideline by Amendment



            515.  This Amendment is not listed in Section 1B1.1(c).



                      Moreover, the Amendment does not state that it is a



            clarifying Amendment.  Amendment 515 states:  "this amendment



            adds  a  new  subsection  to   2D1.1  to  implement  [Section



            80001(b) of the Violent Crime Control and Law Enforcement Act



            of  1994 which  directs the  Commission to  implement Section



            80001(a) (the safety valve statute)] by providing a two-level



            decrease in  offense level for cases meeting the criteria set



            forth  in    5C1.2(1)-(5).     The  effective  date  of  this



            amendment is November 1, 1995."



                      We can think of no reason for holding the Amendment



            to be retroactive.



                      The judgment  of the district court  is affirmed in
                      The judgment  of the district court  is affirmed in
                      ___________________________________________________



            all respects.
            all respects
            ____________


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