United States v. Dean A. Lambey

MURNAGHAN, Circuit Judge,

dissenting:

While I concur in the majority’s opinion insofar as it holds that the district court did not err in denying Lambey’s motion to withdraw his plea, I write separately to dissent from the majority’s resolution of the Sentencing Guidelines issue raised sua sponte by the court. Because I believe that the rule of lenity prevents us from interpreting the Guidelines so as to apply the guideline for fully executed first de *1397 gree murder and circumvent the specific guideline for a conspiracy to murder (which was planned but not effectuated), I would remand for resentencing.

I.

Although Lambey did not appeal the district court’s calculation of his sentence, 1 the issue had been raised on appeal by members of the bench who were concerned that the district court may have erred in using the guideline for first degree murder when a separate guideline for conspiracy to murder exists. Lambey’s failure to raise the issue on appeal does not prevent us from considering an issue that involves a fundamental or plain error. Fed.R.Crim. Proc. 52(b) (plain error “affecting substantial rights may be noticed although not brought to the attention of the court”); Silber v. United States, 370 U.S. 717 , 82 S.Ct. 1287 , 8 L.Ed.2d 798 (1962); United States v. Pineda-Ortuno, 952 F.2d 98, 105 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 1990 , 118 L.Ed.2d 587 (1992); United States v. Belanger, 936 F.2d 916, 920 (7th Cir.1991). Plain error should only be found “in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Young, 470 U.S. 1, 15 , 105 S.Ct. 1038, 1046 , 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152 , 163 n. 14, 102 S.Ct. 1584 , 1592 n. 14, 71 L.Ed.2d 816 (1982)). Imposition for a term of imprisonment based on an erroneous computation of the Guidelines that arrives at a sentencing range wholly and extensively above that which is properly applicable is unquestionably a “miscarriage of justice.” See United States v. Smith, 919 F.2d 123, 124 (10th Cir.1990) (“basing a sentence on the wrong Guideline range constitutes a fundamental error affecting substantial rights within the meaning of Rule 52(b)”).

The majority states that “we might be inclined to consider the Sentencing Guidelines issue if the district court committed plain error.” 2 Maj. op. at 1393 n. *. I depart from the majority in that I believe plain error has been committed: the ambiguity as to whether the guideline for first degree murder may be applied to a conspiracy to murder must be resolved by resorting to the rule of lenity.

II.

The rule of lenity requires us to resolve ambiguities that remain in criminal stat *1398 utes by adopting the construction that is more lenient. United States v. Batchelder, 442 U.S. 114, 121 , 99 S.Ct. 2198, 2202 , 60 L.Ed.2d 755 (1979). “[T]his principle of statutory construction applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose.” Bifulco v. United States, 447 U.S. 381, 387 , 100 S.Ct. 2247, 2252 , 65 L.Ed.2d 205 (1980). Although called “Guidelines,” the product of the United States Sentencing Commission is “binding on the courts,” Mistretta v. United States, 488 U.S. 361, 367 , 109 S.Ct. 647, 652 , 102 L.Ed.2d 714 (1989) (citing 18 U.S.C. § 3553 ), and thus the Guidelines “have the force and effect of laws ...,” id. at 413, 109 S.Ct. at 675 (Scalia, J., dissenting). Therefore, the rule of lenity is also appropriately used to resolve ambiguities in the Sentencing Guidelines. See United States v. Mobley, 956 F.2d 450, 452 (3d Cir.1992); United States v. Payne, 952 F.2d 827, 830 (4th Cir.1991); United States v. Martinez, 946 F.2d 100, 102 (9th Cir.1991); United States v. Rolande-Gabriel, 938 F.2d 1231, 1237 (11th Cir.1991); United States v. Burke, 888 F.2d 862, 866 (D.C.Cir.1989).

Obviously, we are not to create an ambiguity to avoid the plain meaning of a guideline. See Bifulco, 447 U.S. at 387 , 100 S.Ct. at 2252 ; Mobley, 956 F.2d at 453 (refusing “to find ambiguity where none exists to defeat the plain meaning of the Guidelines”). As a principle of statutory construction, the rule of lenity is reserved for situations in which a “grievous ambiguity or uncertainty in the language and structure” of a statute remains after using other standard tools of statutory construction. Chapman v. United States, — U.S. -, -, 111 S.Ct. 1919, 1926 , 114 L.Ed.2d 524 (1991) (quoting Huddleston v. United States, 415 U.S. 814, 831 , 94 S.Ct. 1262, 1271 , 39 L.Ed.2d 782 (1974)). The critical question, though, is what degree of ambiguousness is necessary in any particular case to comprise ambiguity. Moskal v. United States, 498 U.S. 103 , -, 111 S.Ct. 461, 465 , 112 L.Ed.2d 449 (1990). The Supreme Court has stated that if two readings of a criminal statute are “rational,” McNally v. United States, 483 U.S. 350, 359 , 107 S.Ct. 2875, 2881 , 97 L.Ed.2d 292 (1987), or “plausible,” it is appropriate to require “clear and definite” language before choosing the harsher alternative. Williams v. United States, 458 U.S. 279, 290 , 102 S.Ct. 3088, 3094 , 73 L.Ed.2d 767 (1982).

The Supreme Court has identified two purposes underlying the use of the rule of lenity as a “time-honored interpretative guideline” when two readings of a criminal statute are plausible and one reading produces a result that is more harsh. Liparota v. United States, 471 U.S. 419, 427 , 105 S.Ct. 2084, 2089 , 85 L.Ed.2d 434 (1985). The rule “serves to ensure both that there is fair warning of the boundaries of criminal conduct and that legislatures, not courts, define criminal liability.” Crandon v. United States, 494 U.S. 152, 158 , 110 S.Ct. 997, 1001 , 108 L.Ed.2d 132 (1990) (citing Liparota, 471 U.S. at 427 , 105 S.Ct. at 2089 ). Great emphasis is placed on the importance of issuing a “fair warning ... to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” McBoyle v. United States, 283 U.S. 25, 27 , 51 S.Ct. 340, 341 , 75 L.Ed. 816 (1931), quoted in United States v. R.L.C., — U.S. -, -, 112 S.Ct. 1329, 1340 , 117 L.Ed.2d 559 (1992) (Scalia, J., concurring in part and concurring in the judgment) and cited in id, — U.S. at - n. 6, 112 S.Ct. at 1338 n. 6 (Souter, J., plurality opinion). It may be true that “the proposition that ... [criminal statutes] give adequate notice to the citizen is something of a fiction ...,” albeit a “necessary fiction.” R.L.C., — U.S. at -, 112 S.Ct. at 1339 (Scalia, J., concurring in part and concurring in the judgment). However, the importance of providing “fair warning” as to the meaning of mandatory criminal sentencing “guidelines,” which are, in effect, statutes, is not at all a fiction to those who must decide whether to plead guilty or to stand trial based on reasonable interpretations of the Sentencing Guidelines made by their attor *1399 neys. Indeed, one of the expectations of the Sentencing Commission was that the Guidelines would “have a positive, rationalizing impact upon plea agreements ..in part because they were intended to “create a clear, definite expectation in respect to the sentence that a court will impose if a trial takes place.” U.S.S.G. Ch. 1, Pt. A, intro, comment.

The majority has acknowledged the “complexity” here involved in interpreting the Guidelines so as to arrive at the guideline for an accomplished first degree murder by means of U.S.S.G. § 2A4.1(b)(5) in the process of sentencing a conspiracy to kidnap and murder. Maj. op. at 1395-96. The majority also states that it is “not unreasonable to argue” that the guideline for a conspiracy to murder is applicable instead. Id. I object to an interpretation of the Sentencing Guidelines that calls for substitution of the guideline provided for an accomplished first degree murder in sentencing for a conspiracy to murder through application of the kidnapping guideline. To me, that is flatly inconsistent with the requirement established by the general conspiracy guideline, U.S.S.G. § 2X1.1(c), which directs us to use the guideline that expressly covers a conspiracy to commit a particular offense, here murder, if such a guideline exists. I would hold that there is a “grievous ambiguity or uncertainty in the language and structure” of the Guidelines, Chapman , — U.S. at -, 111 S.Ct. at 1926 (quoting Huddleston, 415 U.S. at 831 , 94 S.Ct. at 1271 ), that requires adoption of the more lenient interpretation.

III.

The district court, in accordance with the probation officer’s presentence report, sentenced Lambey as follows. The district court began its analysis with the general guideline for a conspiracy, U.S.S.G. § 2X1.1, which provides for use of the base offense level “from the guideline for the object offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty,” U.S.S.G. § 2X1.1(a) (Nov. 1989), 3 in sentencing for a conspiracy that is not “expressly covered by another offense guideline section,” U.S.S.G. § 2Xl.l(c). 4 The district court determined that the “object offense” in Lambey’s case was conspiracy to kidnap in violation of 18 U.S.C. § 1201 (c), since that is the offense charged in Count I of the indictment and is the offense to which Lambey pled guilty. 5 Because there is no guideline section expressly covering a conspiracy to kidnap, the district court turned to the guideline for the “object offense” of kidnapping, found at U.S.S.G. § 2A4.1 (Kidnapping, Abduction, Unlawful Restraint). Kidnapping was, however, only contemplated and never actually occurred.

Next, in applying the kidnapping guideline, which provides for a base offense level of 24, the district court heeded the instruction in U.S.S.G. § 2X1.1(a) to add “any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” On that basis, the following “specific offense characteristic” was applied:

*1400 If the victim was kidnapped, abducted, or unlawfully restrained to facilitate the commission of another offense: (A) increase by 4 levels; or (B) if the result of applying this guideline is less than that resulting from application of the guideline for such other offense, apply the guideline for such other offense.

U.S.S.G. § 2A4.1(b)(5). 6 A finding in Lam-bey’s case was made that the conspiracy to kidnap was “to facilitate the commission of” the other offenses of sexual abuse and murder. Sentencing on the basis of either sexual abuse or kidnapping would result in a lower offense level than the 43 levels provided by U.S.S.G. § 2A1.1 for the commission of first degree murder. Therefore, the guideline section covering first degree murder was used by the district court, pursuant to § 2A4.1(b)(5)(B). Returning to the general conspiracy guideline, § 2X1.1, the offense level of 43 was then reduced by three levels to 40, pursuant to § 2X1.1(b)(2), 7 because the defendant was apprehended before completion of the acts believed necessary to commit the object offense. 8

IV.

I conclude that application of the supposed “plain language” of § 2A4.1(b)(5) to arrive at the first degree murder guideline both contradicts and circumvents the “plain language” of the instruction given in § 2X1.1(c) that we should apply the guideline expressly covering a conspiracy if one exists. To my mind, § 2X1.1(c) prevents the substitution of the guideline for a completed first degree murder because of the separate guideline expressly covering a conspiracy to murder.

The issue can be stated as follows: is § 2Xl.l(c) only to be invoked as the first step in the chain, i.e., requiring us to begin analysis with the kidnapping guideline since there is no specific guideline for a conspiracy to kidnap, but having no other impact on determination of the offense level for a conspiracy to kidnap, or, instead, does it apply to the entire analysis that we conduct under § 2X1.1? Both the panel in DePew and the district court that sentenced Lambey appear to have considered § 2X1.1(c), instructing us to use the guideline that expressly covers a conspiracy if one exists, to be relevant only at the start of the analysis. Under that interpretation, once we follow the direction to use the guideline for the “object offense” because a specific guideline for a conspiracy to commit that offense has not been provided, we simply ignore any guidelines that expressly cover a conspiracy even if we are directed to substitute another guideline, as happens in § 2A4.1(b)(5). It seems to me at least equally reasonable to conclude that § 2X1.1(c) applies to the entire calculation under § 2X1.1, and thus prevents the substitution of a guideline for any object of *1401 fense if a guideline expressly covering a conspiracy to commit that offense is provided. 9

While U.S.S.G. § 2X1.1(a) alludes to the application of adjustments “for any intended offense conduct that can be established with reasonable certainty,” it is to be expected that confusion would arise from that language in the minds of defendants and their counsel as to whether U.S.S.G. § 2A4.1(b)(5) is intended to apply only to a kidnapping in actual fact or whether it magically broadens to reach merely contemplated but never effectuated kidnapping as well. Notably, the “plain language” of the guideline is written for and limited in its application to a kidnapping, abduction, or unlawful restraint that is actually committed. Thus, to enable logical application of U.S.S.G. § 2A4.1(b)(5) to a conspiracy to kidnap, the insertion of sufficient words extending it to contemplated but not executed crimes is required: “if [the conspiracy had been completed and] the victim [would have been] kidnapped, abducted, or unlawfully restrained to facilitate the commission of another offense _” Insertion of the words is based on the instruction back in U.S.S.G. § 2Xl.l(a) to apply any “adjustments” that “can be established with reasonable certainty.” Yet here, insertion of the words necessary to apply § 2A4.1(b)(5) in the instant circumstances also requires the assumption that the instruction in U.S.S.G. § 2X1.1(a) to apply any “adjustments from such guideline for any intended offense conduct” (emphasis supplied), means to apply a “specific offense characteristic” that calls for the substitution of another offense guideline. Substitution of the offense guideline for the object offense of murder, when the offense in reality is a conspiracy to murder, is not necessarily intended by the instruction in § 2X1-1(a) to apply “adjustments” from the guideline for the object offense, given that § 2X1.1(c) instructs us to apply the guideline that expressly covers a conspiracy if one exists.

The Sentencing Commission distinguished drastically between the offense level for a conspiracy to murder and the offense level for the actual commission of first degree murder. In the absence of a guideline expressly covering a conspiracy to commit a particular object offense, only three levels differentiate the offense level for a conspired but uncompleted act from the offense level for actual commission of the underlying object offense. In the absence of a separate guideline for conspiracy to murder, use of the first degree murder guideline, with an offense level of 43, less three for a conspiracy, would result in an offense level of 40. In contrast, the Guidelines provided a base offense level for a conspiracy to murder of 20 levels. U.S.S.G. § 2A2.1. 10 At the time of sentencing, the sentencing range for an offense level of 20 was 33 to 41 months imprisonment, 11 whereas the sentencing range for an offense level of 40 was 292 to 365 months imprisonment. 12 Therefore, the separate conspiracy to murder guideline evinces a clear intent to set a sentencing range for a conspiracy to murder that is substantially lower than the sentencing range that would result if we used the *1402 actually effectuated first degree murder guideline and deducted three levels. I would require clear and definite language in the guidelines before permitting § 2A4.1(b)(5) to circumvent the Commission’s unambiguous intent to set a far lower offense level for a conspiracy to murder than for an actual murder.

It may be argued that arrival at the guideline for an executed first degree murder in sentencing a conspiracy both to kidnap and murder is not inappropriate because a conspiracy to kidnap to facilitate the commission of murder is worse than either a conspiracy to kidnap or a conspiracy to murder. That argument is not sufficiently compelling to overcome what I perceive to be the plain direction in § 2X1.1(c) to apply the guideline that expressly covers a conspiracy if such a guideline is provided, particularly if one keeps in mind the vast difference between the offense level for accomplished first degree murder, less three offense levels for an uncompleted conspiracy, and the offense level specifically provided for a conspiracy to murder.

At the very least, I find the Sentencing Guidelines as applied to Lambey in the present case to be ambiguous 13 and uncertain as to whether the guideline for an accomplished first degree murder is applicable, given the existence of a guideline expressly covering a conspiracy to murder. In sum, I would apply the rule of lenity to require the less harsh alternative.

Y.

The error in using the first degree murder offense level with the three-level reduction for a conspiracy did some harm, though it probably did not harm Lambey as severely as it would harm a defendant who is sentenced on the basis of a conspiracy to kidnap and murder but not on the basis of a conspiracy to commit sexual abuse. The offense level applicable to Lambey, based on a conspiracy to commit criminal sexual abuse, would likely be much higher than the offense level for either conspiracy to kidnap or conspiracy to murder, depending on which specific offense characteristics were found to be established with reasonable certainty, but it could not reach as high as that calculated by the district court. Lambey’s sentence of 360 months for Count I was beyond the sentencing range that is applicable under the foregoing interpretation of the Guidelines. Because the sentence imposed was plainly erroneous, I would remand for resentenc-ing. Consequently, I respectfully dissent.

. Lambey’s first attorney filed objections with the probation officer regarding the calculation of the Guidelines, which included an objection to use of the base offense level for murder in the first degree. The attorney who represented Lambey at the sentencing hearing raised the same argument before the district court.

. The majority then states that "we will not review the issue” because a panel of the Fourth Circuit rejected the same Sentencing Guidelines argument in an appeal brought by Lambey’s co-conspirator Daniel DePew, see United States v. DePew, 932 F.2d 324, 328-30 (4th Cir.), cert. denied, — U.S. -, 112 S.Ct. 210 , 116 L.Ed.2d 169 (1991), and because Lambey entered a plea agreement in which he expressly waived his right to appeal the sentence. Maj. op. at 1393 n. * (citing United States v. Wiggins, 905 F.2d 51, 54 (4th Cir.1990). Neither reason should constrain our en banc review of the issue if, in fact, the commission of plain error is indicated.

Sitting as an en banc court, we are not bound by the prior Fourth Circuit opinion in DePew. See Capital Produce Co. v. United States, 930 F.2d 1077, 1079 (4th Cir.1991). In addition, the district court did not rely on DePew , because Lambey was sentenced over ten months before that panel heard oral argument. Thus, I cannot agree that the panel opinion in DePew should be a hindrance to our consideration of the issue.

The plea agreement in which Lambey waived his right to appeal the sentence also should not cause us to hesitate to investigate if we suspect that the Guidelines were applied erroneously. Wiggins , in which the panel dismissed an appeal because the defendant had entered a plea agreement containing an express waiver of his right to appeal the sentence, is inapplicable to the instant circumstances. The sole issue on appeal in Wiggins was the district court's application of the Sentencing Guidelines. Wiggins, 905 F.2d at 52 . Here, however, we have raised sua sponte the question of the proper application of the Guidelines in the context of our en banc consideration of the related plea withdrawal question. Prior to oral argument, we sua sponte invited the parties to submit supplemental briefs addressing the issue of whether the Guidelines were properly applied.

Even more importantly, it is unacceptable for the government to secure, and the district court to be ratified with respect to, a criminal sentence that is plainly and not insignificantly in error under the Sentencing Guidelines.

. Unless otherwise stated, reference is made to the version of the Guidelines that was current at the time of sentencing, which incorporated amendments that became effective November 1, 1989.

. U.S.S.G. § 2X1.1, entitled "Attempt, Solicitation or Conspiracy (Not Covered by a Specific Offense Guideline),” provides, in part:

(a) Base Offense Level: The base offense level from the guideline for the object offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.

******

(c) Cross Reference

(1) When an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section, apply that guideline section.

.The presentence report proposed that Count II, violation of 18 U.S.C. § 2251 (c), should be grouped with Count I under § 3D1.2(a) and (b). The district court grouped the two counts together in calculating the sentencing range. The propriety of that decision is not herein addressed.

. An amendment that took effect on November 1, 1991 (over 20 months after the district court sentenced Lambey) deleted U.S.S.G. § 2A4.1(b)(5) and inserted a new version at § 2A4.1(b)(7). See U.S.S.G.App. C, amdmt. 363. The analysis adopted in DePew and by the district court in sentencing Lambey is not affected by the changes. The comments here, therefore, are pertinent to the new provision.

. U.S.S.G. § 2X1.1(b)(2) provides:

If a conspiracy, decrease by 3 levels, unless the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the offense or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.

The panel in DePew stated that the district court had reduced the base offense level by three levels "pursuant to § 2X1.1(b)(1) because the crime was an attempt and was not successfully completed." DePew, 932 F.2d at 329 . In sentencing Lambey, the district court decreased the offense level by three levels not because the offense was an attempt, but because the offense was a conspiracy.

.The district court added two levels under § 3A 1.1, based on a finding that the intended victim was particularly vulnerable, resulting in an offense level of 42. With a criminal history category of I, the guideline range provided by the sentencing table is 360 months to life imprisonment. Lambey was sentenced to 360 months (i.e., 30 years) imprisonment on Count I.

.Additional support for considering § 2X1.1(c) as applicable to the whole calculation under § 2X1.1 is found in the point that, after calculating the offense level for the object offense of an unfinished conspiracy as if it were a completed act (i.e., calculating kidnapping under § 2A4.1), based on § 2X1.1(a), we still must return to § 2X1.1(b) for the instruction to deduct three levels for an uncompleted conspiracy. Returning to § 2X1.1(c) for the instruction that a conspiracy expressly covered by another guideline requires application of that specific guideline, at any point in the process of calculating the offense level for a conspiracy, is a reasonable interpretation of the overall structure of U.S.S.G. § 2X1.1. Furthermore, although we are required, pursuant to U.S.S.G. § 1B1.5, to apply the entire guideline for the object offense "[ujnless otherwise expressly indicated,” U.S.S.G. § 2X1.1(c) can be understood as having "expressly indicated” that the guideline for the actual, completed offense is not to be applied if a guideline for the conspiracy to commit that offense exists.

. The guideline for conspiracy to murder is now located at U.S.S.G. § 2A1.5, and provides for a base offense level of 28.

. The base offense level of 28 now provided for a conspiracy to murder results in a sentencing range of 78 to 97 months.

. Both are based on the criminal history category applied to Lambey, category I.

. And so, I hazard to guess, would many, if not most, of those engaged in the practice of criminal law.