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Federal Sentencing Guidelines: Reason to Vacate and Remand: Ambiguity at Sentencing

United States v. Jamar Preacely Decided December 21, 2010

Court of Appeals Second Circuit

Background: Defendant pleaded guilty in the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., J., to distribution and possession with intent to distribute five grams or more of cocaine base. Defendant appealed sentence.

Holding: The Court of Appeals, J. Clifford Wallace, Circuit Judge, held that ambiguity as to whether district court comprehended its authority to depart from Career Offender Guideline warranted remand.

Gerard E. Lynch, Circuit Judge, filed concurring opinion.

Reena Raggi, Circuit Judge, filed dissenting opinion.

Pursuant to a cooperation agreement, Preacely pled guilty to distribution and possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(b)(1)(B)(iii), a crime which carries a mandatory minimum sentence of five years. However, federal law provides that, upon motion by the government, a court may impose a sentence below the statutory minimum “to reflect a defendant’s substantial assistance” in investigating or prosecuting other criminals. 18 U.S.C. § 3553(e); see also U.S.S.G. § 5K1.1 (permitting court to depart from Sentencing Guidelines upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another criminal).

Between arrest and sentencing, a period of approximately five years, Preacely underwent exceptional rehabilitation. First, Preacely worked to overcome his drug addiction. The PSR reflected that Preacely had abused marijuana for years, but had not used drugs since his arrest and wanted to be placed in a substance abuse program while in prison. After being released on bail, Preacely was required to report to the Pretrial Services Agency once a week and to submit to random drug testing. It is undisputed that, in the nearly three years between his June 2006 release and May 2009 sentencing, Preacely never failed a drug test and was “completely compliant” with all of the terms of his release.

Preacely rendered significant assistance to the government. He was released “with the consent of the government … so that he could purchase narcotics from specific targets and otherwise assist in investigations of drug dealers and others.” The government confirmed, by letter to the district court, that Preacely had “actively contributed to several successful criminal investigations.” The government’s section 5K1.1 motion also stated that Preacely began cooperating “very shortly after his arrest,” and provided “truthful and consistent information.” This information, according to the government, assisted in the arrest and/or conviction of persons suspected of drug dealing, firearms trafficking, credit card fraud, and multiple robberies, assisted in solving two murder cases, and assisted in the apprehension of a fugitive.

The district judge adopted the PSR’s recommendation to place Preacely in Criminal History Category VI and its calculation of an offense level of 31. Observing that the Guidelines recommended a sentence in the range of 188 to 235 months’ imprisonment, the district judge settled on a term of 94 months’ imprisonment, five years of post-release supervision, and a $100 special assessment. This term of imprisonment was exactly half of the low end of the range recommended by the Guidelines.

We review a sentence “under a deferential abuse of discretion standard.” United States v. Hernandez, 604 F.3d 48, 52 (2d Cir.2010). Appellate review of a sentence has two components: procedural review and substantive review. United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008).

We must first determine whether the district court complied with the procedural requirements of the Sentencing Reform Act. Id. at 189-90; 18 U.S.C. § 3551 et seq., 28 U.S.C. § 991 et seq. The district court should ordinarily “begin all sentencing proceedings by correctly calculating the applicable Guidelines range,” Gall, 552 U.S. at 49, 128 S.Ct. 586, and then consider the factors listed in 18 U.S.C. § 3553(a). A district court commits procedural error, among other things, by failing to calculate the Guidelines range or by making a mistake in its Guidelines calculation; by treating the Guidelines as mandatory; by failing to consider the section 3553(a) factors; or by resting its sentence on a clearly erroneous finding of fact. Cavera, 550 F.3d at 190. “Moreover, a district court errs if it fails adequately to explain its chosen sentence, and must include an explanation for any deviation from the Guidelines range.” Id. (internal citations and quotation marks omitted); see also Rita v. United States, 551 U.S. 338, 339, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

We will instead set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions…. This degree of deference is only warranted, however, once we are satisfied that the district court complied with the Sentencing Reform Act’s procedural requirements, and this requires that we be confident that the sentence resulted from the district court’s considered judgment as to what was necessary to address the various, often conflicting, purposes of sentencing.

We do not presume that a Guidelines range sentence is reasonable. United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006). Instead, we “take into account the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district courts.” Cavera, 550 F.3d at 190, citing Rita, 551 U.S. at 353, 127 S.Ct. 2456.

This case requires an understanding of the proper role of the Career Offender Guideline. Following Gall, 552 U.S. 38, 128 S.Ct. 586, and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), we have held that it is “emphatically clear that the Guidelines are guidelines-that is, they are truly advisory.” Cavera, 550 F.3d at 189. While the Guidelines are “truly advisory,” district courts are not free to ignore them “or to treat them merely as a body of casual advice.”

A district court may impose a sentence outside the range called for by the Career Offender Guideline. United States v. Sanchez, 517 F.3d 651, 664-65 (2d Cir.2008). The district courts are not, however, free to ignore the Career Offender Guideline. The statute directing the Sentencing Commission to promulgate the Career Offender Guideline, 28 U.S.C. § 994(h), “reflects Congress’s policy judgment that violent felonies and drug trafficking felonies generally warrant more severe sentences when committed by recidivists than when committed by first- or second-time offenders.” Sanchez, 517 F.3d at 668. As such, district courts should “take Congress’s views on repeat offenders into account in determining the appropriate sentence in light of” the section 3553(a) factors.

Our concern is the sentencing judge’s repeated emphasis on Preacely’s status as a Category VI career offender. We may generally assume “that the sentencing judge understood all the available sentencing options, including whatever departure authority existed in the circumstances of the case.” Id. at 665 (internal quotation marks omitted). However, we remain wary of making this assumption “where the judge’s sentencing remarks create ambiguity as to whether the judge correctly understood an available sentencing option, and we are more inclined, in the face of such ambiguity, to remand for clarification.”

It is unclear whether the sentencing judge understood that he could make a so-called “horizontal departure” from the Career Offender Guideline and adopt a lower criminal history category. See, e.g., United States v. Mishoe, 241 F.3d 214, 218-19 (2d Cir.2001) (“horizontal” departure from the Guideline criminal history category may be “based on an individualized consideration” of whether that Guideline ” ‘significantly over-represents the seriousness of [defendant’s] criminal history [and/]or the likelihood that [he] will commit further crimes’ “, quoting U.S.S.G. § 4A1.3(b)(1)).

It is not clear that the district judge comprehended his authority to depart from the Career Offender Guideline, and therefore Preacely’s criminal history category, in calculating the advisory sentencing range under the Guidelines. Indeed, Preacely’s attorney sought to remind the sentencing judge that he could depart from the Career Offender Guideline if criminal history Category VI over-represented the seriousness of Preacely’s criminal history and/or his likelihood of recidivism. The judge replied:

I may not ignore his prior record. I may not ignore the guidelines. I’m cutting the guidelines in half, the minimum guideline for this offense in half. You look at the pages, upon pages of record here, and the category which is the highest category you can get…. I have given a lot of thought to this sentence. I realize what you-I understand what you said. But you’re asking me to depart from a sixth degree offender…. He is a career offender in the federal system…. I didn’t put him there. He put himself in that category.

In this case, Preacely argues that his 94-month sentence was unreasonably long in light of the section 3553(a) factors, and “flouts the parsimony command” that the sentence be no greater than necessary. Because we conclude that his sentence must be vacated and remanded for procedural reasons, we need not decide whether Preacely’s sentence was also substantively unreasonable.