United States v. Oscar Anderson, Jr.

TATEL, Circuit Judge,

concurring in part and concurring in the judgment:

I join the judgment of the court and that portion of Judge Williams’s opinion finding the appellants’ position inconsistent with the Sentencing Commission’s interpretation of 18 U.S.C. § 3553 (b) as permitting departure only in atypical cases. I write separately because I do not entirely agree with Judge Williams’s interpretation of § 3553(b) and because I wish to explain more fully why I am unpersuaded by a separate argument that appellant Hogan appears to have made in his briefs.

Section 3553(b) requires a sentencing court to impose a sentence within the applicable Sentencing Guidelines range “unless 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 a sentence different from that described.” Although I agree with Judge Williams that we should defer to the Commission’s interpretation of § 3553(b), I do not share his view that § 3553(b) permits departures only when “the Commission has completely overlooked a factor ... or [when] the defendant’s case manifests a circumstance that was considered but which is present in ... an extreme form.” Opinion of Williams, J., at 439 (emphasis added). In my view, this interpretation ignores the word “adequately.” Quite apart from the degree to which a circumstance exists in a particular defendant’s case, the statute leaves open the possibility that departure may be warranted for circumstances “of a kind” to which the Commission gave some consideration, but not adequate consideration.

I would instead affirm the district court by relying exclusively on the Commission’s policy statement interpreting § 3553(b). The Sentencing Commission has explained:

The Commission intends the sentencing courts to treat each guideline as carving out a “heartland,” a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether, a departure is warranted.

U.S.S.G. Ch. 1, Pt. A, § (4)(b) (policy statement). As for the standard governing our review of this policy statement, Judge Williams views the statement as an interpretation of a statute, § 3553(b), thus suggesting that our review is governed by the standards set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-45 , 104 S.Ct. 2778, 2781-83 , 81 L.Ed.2d 694 (1984). Judge Wald, in contrast, views the policy statement as an interpretation of the sentencing guidelines and thus suggests a inore deferential standard of review. Cf. Stinson v. United States, 508 U.S. 36, 44-45 , 113 S.Ct. 1913 , 123 L.Ed.2d 598 (1993) (stating that the Commission’s official commentary on guidelines is entitled to the same level of deference as that given to an agency’s interpretation of its own regulation). To me, the question is close. Although the policy statement styles itself “an aid to understanding the guidelines,” U.S.S.G. Ch. 1, Pt. A, § (4)(b) (policy statement), the statement’s “heartland” discussion follows a quotation from § 3553(b) and could reasonably be viewed as interpreting that statutory provision. We need not decide precisely which standard of review applies, however, for we *443 all agree that, under either standard, courts must defer to the Commission’s “heartland” interpretation of § 3553(b) if it is reasonable and not contrary to the Constitution, a statute, or a sentencing guideline.

On its face, § 3553(b) does not indicate whether each guideline should be viewed as carving out a “heartland” of cases in which departure will not be warranted or whether, instead, district courts may base departures on circumstances that are present in eveiy ease for an offense described by a particular guideline. The statute speaks merely of “an aggravating or mitigating circumstance ... that should result in a sentence different from that described.” Because the language of the statute does not speak directly to the question whether departure should be reserved for atypical cases — and is not inconsistent with an interpretation restricting departure to such atypical cases — we must defer to the Commission’s interpretation if it is reasonable and not contrary to law.

By virtue of its requirement of atypical circumstances, the Commission reads the statute to mean, at the very least, that a circumstance present in every ease for an offense described by a particular guideline is not a “circumstance ... that should result in a sentence different from that described.” This reading of § 3553(b) is reasonable. Allowing departure in every case for an offense described by a particular guideline would be equivalent to having no guideline at all for that offense. Under the Commission’s reading, § 3553(b) does not give defendants a tool for attacking a guideline itself, but rather affords them an opportunity to demonstrate that their cases should not be treated as falling within a particular guideline. Although Anderson and Hogan advance a reasonable interpretation of § 3553(b), our task is not to choose among plausible readings of that provision, but to defer to the Commission’s permissible and reasonable interpretation.

In light of the Commission’s “heartland” interpretation of § 3553(b), I would distinguish United States v. Smith, 27 F.3d 649 (D.C.Cir.1994), differently than Judge Williams does. Whether the Commission completely failed to consider alien status— the suggested ground for departure in Smith — is not the relevant distinction between that case and this one. Instead, what differentiates the basis for departure in Smith from the basis on which the appellants in this case seek departure is that permitting departures based on alien status leaves in place a “heartland” of cases described by a sentencing guideline. In contrast, Anderson and Hogan propose a basis for departure that would apply to all crack cocaine defendants.

Relying on the Commission’s special report on cocaine sentencing, our dissenting colleague argues that application of the Commission’s “heartland” interpretation of § 3553(b) to bar downward departures on the ground suggested by the appellants in this case would violate 18 U.S.C. § 3553 (a), which provides that a sentencing court “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing set forth in § 3553(a)(2). According to the dissent, § 3553(b), read in conjunction with § 3553(a), authorizes departures from Guidelines sentences even in cases that are typical for a particular offense if Guidelines sentences would be “greater than necessary” to serve the statutorily identified purposes of sentencing. Like Judge Williams, I disagree. In my view, § 3553(a) does not itself provide a standard for determining when departure is appropriate. See United States v. Davern, 970 F.2d 1490, 1492-93 (6th Cir.1992) (en banc), cert. denied, 507 U.S. 923 , 113 S.Ct. 1289 , 122 L.Ed.2d 681 (1993). Section 3553(b) provides that absent inadequately considered mitigating or aggravating circumstances, a sentencing court “shall impose” a sentence within the appropriate Guidelines range, and § 3553(a) itself instructs á sentencing court to consider the sentencing range for “the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines,” 18 U.S.C. § 3553 (a)(4)(A) (1994). Therefore, I read § 3553(a) as simply instructing a sentencing court how to select a sentence within an applicable Guidelines range or how to choose a sentence if departure is warranted under the standard set forth in § 3553(b).

*444 The Commission’s requirement of atypical circumstances may not completely answer what appears to be Hogan’s separate argument. Although his position is not entirely clear, Hogan’s briefs seem to claim that the Commission’s special report discloses several factors — such as lack of violence — present in his case but not adequately considered by the Commission in establishing the sentencing guidelines for crack cocaine offenses. Although Hogan’s counsel appeared to abandon this claim at oral argument, I address it separately because the interests of Hogan and Anderson, who were jointly represented at oral argument, may have differed with respect to this claim.

In my view, Hogan’s argument fails because the relevance of the special report to a district court’s inquiry under § 3553(b) is limited. Section 3553(b) states: “In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” The Sentencing Commission ordinarily identifies its policy statements and official commentary as such, but has not so identified its special report on craek cocaine. Documents such as the report on crack cocaine still may be relevant to judicial determinations under § 3553(b). Like any other evidence, such reports may point out a factor that courts should examine as a possible mitigating or aggravating circumstance. Such reports may also contain information against which a court may measure the adequacy of the Commission’s consideration of a factor. In the end, however, a court trying to decide whether and to what extent the Sentencing Commission did in fact consider an alleged mitigating or aggravating factor may rely for the answer to that question on the guidelines, policy statements, and official commentary only.

Hogan argues that the Commission failed to consider several mitigating factors present in his case. His offense, he asserts, did not involve violence, juveniles, large quantities of cocaine, or proximity to schools. As is clear from the materials that Congress has instructed courts to consult to determine whether the Commission adequately considered these factors, the Commission based sentences in part on the quantities of cocaine involved in an offense and identified violence, weapon use, and involvement of juveniles as circumstances justifying sentences higher than the base offense level sentences. Specifically, the Commission authorized upward adjustments for causing injury or death, U.S.S.G. § 5K2.1, p.s.; § 5K2.2, p.s.; for possession or use of weapons, § 2Dl.l(b)(l); § 5K2.6, p.s.; for leadership in criminal activity, § 3B1.1; and for involvement of juveniles or drug sales near protected locations, § 2D1.2. The guidelines and policy statements thus demonstrate that the Commission predicated the base offense levels on the absence of these factors. Accordingly, the Commission did consider the kinds of circumstances that Hogan identifies and determined that the base offense level was appropriate under such circumstances. Hogan has not demonstrated that the Commission’s consideration of these types of circumstances was inadequate. Although Hogan suggests that in setting the base offense levels for craek cocaine the Commission relied on assumptions about higher rates of violence and other evils associated with crack cocaine, he has not pointed to anything in the sentencing guidelines, policy statements, or official commentary to support this claim.

* * *

From the appellants’ perspectives, their sentences undoubtedly seem unfair. After all, the Sentencing Commission has essentially conceded that their prison terms are unjustifiably high in comparison to the prison terms of similarly situated powder cocaine defendants. But neither appellant has questioned the power of Congress or of the Sentencing Commission to establish the sentencing ranges that currently exist for crack cocaine offenses. The question before us, therefore, is whether district courts possess legal authority to depart downward in sentencing defendants charged with crack cocaine offenses on the ground that the Sentencing Commission failed adequately to consider certain information indicating that the existing differences in sentences for powder cocaine and crack cocaine offenses are unwarranted. Unfortunately for defen *445 dants such as Anderson and Hogan, under the structure established by the sentencing statutes and guidelines, the answer is no. District courts lack authority to depart in these circumstances.

As Judge Williams explains, Anderson and Hogan may yet find relief. Congress has instructed the Sentencing Commission to “propose revision of the drug quantity ratio of crack cocaine to powder cocaine under the relevant statutes and guidelines in a manner consistent with the ratios set for other drugs and consistent with the objectives set forth in [ 28 U.S.C. § 3553 (a) Pub.L. No. 104-38, 109 Stat. 334, § 2(a)(2) (1995). If the sentencing range for crack cocaine offenses were in fact lowered,' district courts would have authority under 18 U.S.C. § 3582 (e)(2) to reduce the sentences of defendants already serving prison terms “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Absent such a development, however, we must affirm the appellants’ sentences.