Court Affirms that Defendant Loses Benefit of Criminal History Departure At 3582(c)(2) Resentencing
United States v. Gutierrez, 2017WL2641063 (June 20, 2017) (NM): In his 18 U.S.C. § 3582(c)(2) motion, Gutierrez asked that he again be sentenced in criminal history category III. At the initial sentencing hearing, the court had departed from criminal history category IV to III and reduced the offense level from 35 to 34 to account for disparity with other defendants. Post-conviction, the district court reduced Gutierrez’s offense level after the sentencing commission promulgated Amendment 782 to the guidelines. The district court said it wanted to resentence in Category III, but USSG § 1B1.10, as modified by Amendment 759, allowed departures only for cooperating with the government.
On appeal Gutierrez argued, (1) the departure was not prohibited by § 1B1.10 because, as modified by Amendment 759, it exceeded or conflicted with the commission’s statutory authority and violated the separation-of-powers doctrine, or alternatively, (2) the district court was required by the one-book rule to calculate his amended guidelines range based on category III. The panel rejected the first argument because the commission’s authority to promulgate a revised § 1B1.10 comes from an express delegation by Congress and Congress “enjoys the power to curtail the judiciary’s discretion over sentencing.” Additionally, Congress gave the commission statutory discretion to determine which rules may further the purposes of sentencing. When the commission decided to limit reductions below the amended Guidelines range in all circumstances except where a defendant provided substantial assistance to the government, it was properly making use of that discretion. The panel also was unpersuaded by Gutierrez’s one book rule argument. Section 1B1.11(b)(2) requires that a single guidelines manual govern an accused’s sentencing calculation in its entirety. Gutierrez said, that by calculating his offense level using the post-amendment 782 version of § 2D1.1 now in effect, while calculating his criminal history category using the pre-Amendment 742 version of § 4A1.1 in effect at the time of his original sentencing, the district court violated the one-book rule’s prohibition against applying different sections from different editions of the Guidelines. Had the district court accounted for amendment 742’s elimination of recency points in calculating his criminal history score, he would fall within criminal history category III, rather than IV. The panel chose not to resolve this conundrum. Instead it said, whatever role the commission may have envisioned for the one-book rule in § 3582(c)(2) proceedings, if any, that role does not include mandating the retroactive application of amendments excluded from § 1B1.10(d) . And, to the extent that provisions of § 1B1.10 and § 1B1.11 conflict, § 1B1.10 controls because it provides more specific guidance.
On appeal Gutierrez argued, (1) the departure was not prohibited by § 1B1.10 because, as modified by Amendment 759, it exceeded or conflicted with the commission’s statutory authority and violated the separation-of-powers doctrine, or alternatively, (2) the district court was required by the one-book rule to calculate his amended guidelines range based on category III. The panel rejected the first argument because the commission’s authority to promulgate a revised § 1B1.10 comes from an express delegation by Congress and Congress “enjoys the power to curtail the judiciary’s discretion over sentencing.” Additionally, Congress gave the commission statutory discretion to determine which rules may further the purposes of sentencing. When the commission decided to limit reductions below the amended Guidelines range in all circumstances except where a defendant provided substantial assistance to the government, it was properly making use of that discretion. The panel also was unpersuaded by Gutierrez’s one book rule argument. Section 1B1.11(b)(2) requires that a single guidelines manual govern an accused’s sentencing calculation in its entirety. Gutierrez said, that by calculating his offense level using the post-amendment 782 version of § 2D1.1 now in effect, while calculating his criminal history category using the pre-Amendment 742 version of § 4A1.1 in effect at the time of his original sentencing, the district court violated the one-book rule’s prohibition against applying different sections from different editions of the Guidelines. Had the district court accounted for amendment 742’s elimination of recency points in calculating his criminal history score, he would fall within criminal history category III, rather than IV. The panel chose not to resolve this conundrum. Instead it said, whatever role the commission may have envisioned for the one-book rule in § 3582(c)(2) proceedings, if any, that role does not include mandating the retroactive application of amendments excluded from § 1B1.10(d) . And, to the extent that provisions of § 1B1.10 and § 1B1.11 conflict, § 1B1.10 controls because it provides more specific guidance.
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