United States v. Barney

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 11-2488

UNITED STATES OF AMERICA

v.

CLIFTON BARNEY, a/k/a Doodles

CLIFTON BARNEY,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1-06-cr-00019-001)

District Judge: Honorable Joseph H. Rodriguez

Submitted Under Third Circuit L.A.R. 34.1(a)

on February 7, 2012

Before: SLOVITER and VANASKIE, Circuit Judges, and

PADOVA, Senior District Judge*

(Filed: March 6, 2012)

*

Honorable John R. Padova, Senior Judge of the United

States District Court for the Eastern District of Pennsylvania,

sitting by designation.

Christopher O=Malley, Esq.

Julie A. McGrain, Esq.

Office of Federal Public Defender

800-840 Cooper Street

Suite 350

Camden, New Jersey 08102

Attorneys for Appellant

Mark E. Coyne, Esq.

Joseph B. Shumofsky, Esq.

Paul J. Fishman, Esq.

Office of United States Attorney

970 Broad Street

Newark, New Jersey 07102-2535

Attorneys for Appellee

___________

OPINION OF THE COURT

___________

PADOVA, Senior District Judge.

Appellant Clifton Barney appeals a May 26, 2011 District

Court Order denying his motion for a sentence reduction

pursuant to 18 U.S.C. ' 3582(c)(2). He argues that the District

Court erred in concluding that Amendment 706 to the

Sentencing Guidelines, which reduced the base offense level for

most cocaine base offenses, did not lower his Aapplicable

guideline range@ for purposes of resentencing under 18 U.S.C. '

3582(c)(2). We have jurisdiction over this appeal pursuant to 28

U.S.C.  1291 and 18 U.S.C.  3742(a). For the following

reasons, we will affirm.

I.

On June 14, 2006, Appellant pled guilty to a single count

of possession with intent to distribute more than five grams of

crack cocaine, in violation of 21 U.S.C. '' 841(a)(1) and

(b)(1)(B). Using the March 27, 2006 edition of the Sentencing

2

Guidelines, the Probation Office determined that the drug

quantity table in U.S.S.G. ' 2D1.1(c) (the ACrack Cocaine

Guidelines@) produced a base offense level of 32. Appellant had

11 criminal history points, which ordinarily correspond to a

criminal history category of V. However, Appellant qualified as

a Career Offender under U.S.S.G. ' 4B1.1 (the ACareer Offender

Guidelines@) due to two prior felony convictions, one for

aggravated assault and one for distribution of a controlled

substance. As a result, Appellant=s criminal history category

became VI and his base offense level became a 34. See

U.S.S.G. ' 4B1.1(b). After a three level reduction for

acceptance of responsibility under U.S.S.G. ' 3E1.1, Appellant=s

total offense level was a 31, which, combined with Appellant=s

criminal history category of VI, resulted in an advisory

Guideline range of 188-235 months.

Appellant moved, however, for a downward departure

pursuant to U.S.S.G. ' 4A1.3, arguing that the Guidelines

overstated his criminal history. The District Court granted that

motion. In ascertaining the extent of the departure, the District

Court referred to the Crack Cocaine Guidelines and concluded

that it was appropriate to depart downward to the base offense

level that those Guidelines produced, absent application of the

Career Offender Guidelines. The Court also departed

downward with respect to the criminal history category,

reducing it from VI to V. With the additional reduction for

acceptance of responsibility, Appellant=s new total offense level

was a 29, which, combined with the reduced criminal history

category of V, produced a new advisory Guideline range of 140-

175 months. The Court sentenced Appellant within that range to

150 months of imprisonment. On appeal, this Court affirmed

Appellant=s sentence.

In April 2010, Appellant filed a motion for a sentence

reduction pursuant to 18 U.S.C. ' 3582(c)(2), seeking the

benefit of Amendment 706 to the Sentencing Guidelines. The

District Court held a hearing on May 18, 2011, and thereafter

issued a May 26, 2011 Order, denying Appellant=s motion for a

sentence reduction. In an accompanying Memorandum, the

District Court explained that Appellant was not eligible for a

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reduction of sentence because Amendment 706 did not lower

Appellant=s Aapplicable guideline range,@ which the Court

concluded was the pre-departure range of 188-235 months

dictated by the Career Offender Guidelines. Appellant timely

appealed the District Court=s order.

II.

Appellant=s sole argument on appeal is that the District

Court erred in concluding that his Aapplicable guideline range@

for purposes of determining his eligibility for re-sentencing was

the range dictated by the Career Offender Guidelines. In

Appellant=s view, his Aapplicable guideline range@ was the range

that applied after the U.S.S.G. ' 4A1.3 departure, i.e., the range

dictated by the Crack Cocaine Guidelines. He therefore argues

that Amendment 706 did reduce his Aapplicable guideline range@

and he is eligible for a sentence reduction under 18 U.S.C. '

3582(c)(2).

Section 3582(c)(2) provides that:

[I]n the case of a defendant who has been

sentenced to a term of imprisonment based on a

sentencing range that has subsequently been

lowered by the Sentencing Commission pursuant

to 28 U.S.C. 994(o), upon motion of the

defendant or the Director of the Bureau of

Prisons, or on its own motion, the court may

reduce the term of imprisonment, after

considering the factors set forth in section 3553(a)

to the extent that they are applicable, if such a

reduction is consistent with applicable policy

statements issued by the Sentencing Commission.

18 U.S.C. ' 3582(c)(2). Section 3582(c)(2) therefore only

authorizes a reduction in a defendant=s sentence if (1) the

District Court sentenced the defendant Abased on@ a guideline

range that has been lowered by an amendment to the Guidelines

and (2) the reduction is Aconsistent with applicable policy

statements issued by the Sentencing Commission.@ Id. With

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respect to the second requirement, U.S.S.G. ' 1B1.10(a)(2)(B)

provides that A[a] reduction in the defendant=s term of

imprisonment is not consistent with this policy statement and

therefore is not authorized under 18 U.S.C. ' 3582(c)(2) if -- . . .

an amendment . . . does not have the effect of lowering the

defendant=s applicable guideline range.@ Similarly, Application

Note 1(A) to U.S.S.G. ' 1B1.10 states that:

. . . a reduction in the defendant=s term of

imprisonment is not authorized under 18 U.S.C. '

3582(c)(2) and is not consistent with this policy

statement if: . . . (ii) an amendment [to the

Guideline range] is applicable to the defendant

but the amendment does not have the effect of

lowering the defendant=s applicable guideline

range because of the operation of another

guideline or statutory provision (e.g., a statutory

mandatory minimum term of imprisonment).

U.S.S.G. ' 1B1.10, cmt. n.1(A).

Here, the parties agree that Appellant=s sentence was

Abased on@ a sentencing range that was lowered by Amendment

706. They disagree, however, whether Amendment 706 had the

effect of lowering Appellant=s Aapplicable guideline range,@ such

that a sentence reduction would be Aconsistent with [the

Sentencing Commission=s] applicable policy statements.@ 18

U.S.C. ' 3582(c)(2). As noted above, the issue is whether

Appellant=s Aapplicable guideline range@ is the sentencing range

calculated under the Career Offender Guidelines, in which case

Appellant is not eligible for a sentence reduction, or the

sentencing range calculated under the Crack Cocaine

Guidelines, in which case he is eligible for a reduction.

In United States v. Flemming, 617 F.3d 252 (3d Cir.

2010), this Court considered whether the Aapplicable guideline

range@ for a career offender who was sentenced under the 2001

version of the Guidelines and received a downward departure

under ' 4A.1.3 was the sentencing range under the Career

Offender Guidelines or the Crack Cocaine Guidelines. The

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Flemming court concluded that the 2001 version of the

Guidelines was ambiguous as to which range was the

Aapplicable guidelines range@ under such circumstances. Id. at

265. In that regard, the Court noted that the Guidelines Acontain

no global definition of the phrase >applicable guideline range.=@

Id. at 261. It also opined that the Application Instructions for

the Guidelines in U.S.S.G. ' 1B1.1, which dictate the order in

which a court is to apply the various provisions and chapters of

the Guidelines, neither Aclearly require the [' 4A1.3] departure

to be applied after the >applicable guideline range= is calculated .

. . nor . . . clearly require the departure to be applied before the

>applicable guideline range= is calculated.@ Id. at 265. In light of

this ambiguity, the Court in Flemming applied the rule of lenity,

granted Flemming the benefit of the Guidelines= ambiguity, and

held that Flemming was eligible for a reduction of sentence. Id.

at 269-72.

At the same time, the Flemming court recognized that,

following Flemming=s sentencing, there had been a 2003

amendment to the commentary to U.S.S.G. ' 1B1.1 that Amay

resolve th[e] ambiguity@ of whether the Aapplicable guideline

range@ is the range pre- or post-departure. Id. at 266, 270.

Amendment 651 to the Guidelines added the following

definition of Adeparture@ to the commentary to U.S.S.G. '

1B1.1:

ADeparture@ means (i) for purposes other than

those specified in subdivision (ii), imposition of a

sentence outside the applicable guideline range or

of a sentence that is otherwise different from the

guideline sentence; and (ii) for purposes of '

4A1.3 (Departure Based on Inadequacy of

Criminal History Category), assignment of a

criminal history category other than the otherwise

applicable criminal history category, in order to

effect a sentence outside the applicable guideline

range.

U.S.S.G. ' 1B1.1 cmt. n.1(E) (2003) (emphasis added). The

Court in Flemming stated that this definition Aappears . . . to

suggest that a ' 4A1.3 downward departure has no effect on a

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defendant=s >applicable guideline range,=@ because it Aindicate[s]

that a ' 4A1.3 downward departure is a departure from, rather

than to, the >applicable guideline range.=@ Flemming, 617 F.3d at

266. The Court further observed that A[t]he Sixth, Eighth and

Tenth Circuits [have already] seized on this definition to

conclude that a ' 4A1.3 departure has no effect on the

>applicable guideline range= for a career offender.@ Id. (citing

United States v. Tolliver, 570 F.3d 1062, 1066 (8th Cir. 2009),

United States v. Pembrook, 609 F.3d 381, 385-86 (6th Cir.

2010), and United States v. Darton, 595 F.3d 1191, 1194 (10th

Cir. 2010)); see also United States v. Blackmon, 584 F.3d 1115,

1116-17 (8th Cir. 2009).

The Flemming court ultimately declined to decide

Awhether a career offender granted a ' 4A1.3 downward

departure under a post-2003 edition of the Sentencing

Guidelines would be eligible for a sentence reduction under 18

U.S.C. ' 3582(c)(2),@ explaining that it was precluded from

considering the new definition of Adeparture@ in Flemming=s

case, because Flemming had been sentenced before that

definition was adopted. Id. at 267, 271 n.26. Nevertheless, the

Court stated that Ato the extent that the 2003 definition provides

clearer guidance as to the >applicable guideline range= for a

defendant granted a ' 4A1.3 departure, we may be required to

treat that guidance as authoritative, as it does not appear to be

>inconsistent with, or a plainly erroneous reading of= the

Guidelines.@ Id. at 271 n.26 (quoting Stinson v. United States,

508 U.S. 36, 38 (1993)).

The present appeal raises the precise issue that Flemming

left unresolved, i.e., what is the Aapplicable guideline range@ for

a career offender receiving a ' 4A1.3 departure under a post-

2003 edition of the Guidelines. In other words, we have to

resolve whether the 2003 amendment resolves the ambiguity

that led to Flemming=s application of the rule of lenity.

Appellant urges us to conclude that, in spite of the added

definition of Adeparture,@ the phrase Aapplicable guideline range@

remains ambiguous. However, we conclude that the 2003

definition does resolve the ambiguity that the Flemming court

identified and clearly establishes that the Aapplicable guideline

range@ is that which precedes the application of a ' 4A1.3

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departure. Indeed, we conclude that the definition=s explicit

statement that a ' 4A1.3 departure is the Aassignment of a

criminal history category in order to effect a sentence outside the

applicable guideline range,@ U.S.S.G. ' 1B1.1 cmt. n.1(E)

(emphasis added), leaves no doubt that a ' 4A1.3 departure is a

departure from the applicable guideline range, not a departure to

the applicable guideline range.1 Accordingly, the District Court

correctly determined that Appellant=s Aadvisory guideline range@

was the range dictated by the Career Offender Guidelines, not

his post-' 4A1.3 departure range, which corresponded to the

range set forth in the Crack Cocaine Guidelines. As a result,

Appellant is not eligible for a sentence reduction under 18

U.S.C. ' 3582(c).

III.

We have considered all other arguments made by the

parties on appeal, and conclude that no further discussion is

necessary. For the foregoing reasons, we will affirm the District

Court order denying Appellant=s motion for reduction of

sentence.

1

This conclusion is consistent with Amendment 759 to the

Guidelines, effective November 1, 2011, which further amended

Application Note 1(A) to U.S.S.G. ' 1B1.10 by adding a

parenthetical, so that the Application Note now reads:

AEligibility for consideration under 18 U.S.C. ' 3582(c)(2) is

triggered only by an amendment . . . that lowers the applicable

guideline range (i.e., the guideline range that corresponds to the

offense level and criminal history category determined pursuant

to ' 1B1.1(a), which is determined before consideration of any

departure provision in the Guidelines Manual or any variance).@

U.S.S.G. ' 1B1.10 cmt. n.1(A) (2011) (emphasis added).

8