United States v. Courtney Butler (98-5552) and Julius Retic (98-5554)

NATHANIEL R. JONES, Circuit Judge,

concurring, with COLE, J., joining.

We concur in the judgment announced by Judge Clay, and with most of Judge Clay’s well-reasoned opinion. Nevertheless, we believe defendant Retie, in addition to prevailing for the reasons stated in II.B.2, correctly asserts that the United States Sentencing Commission failed to comport with a clear Congressional directive when it eliminated the requirement that the defendant be at least twenty-one years old to be subject to enhancement under U.S.S.G. § 3B1.4. We therefore respectfully disagree with regard to the analysis in II.B.l.

As a preliminary matter, we are untroubled by the fact that Retie did not make this particular legal argument below. Before the district court, Retie clearly challenged the application of U.S.S.G. § 3B1.4 to enhance his sentence, J.A. at 180-81; he therefore complied with this Court’s requirement that a defendant object at the district court in order to avoid waiving that objection on appeal. See United States v. Jarman, 144 F.3d 912, 915 (6th Cir.1998). The additional argument he now makes in support of that objection is one of pure law. “The question is simply the proper interpretation and application of the [relevant] statute,” requiring “no new or amplified factual determination.” Frederick Steel Co. v. Commissioner of Internal Revenue, 375 F.2d 351, 355 (6th Cir.1967) (internal quotations and citation omitted). As such, the fact that the argument was not raised below is immaterial. See id.-, see also Hutton v. United States, 501 F.2d 1055 , 1062-63 & *850 1063 n. 15 (6th Cir.1974) (recognizing that Frederick Steel Co. articulated an exception to the general rule that an appellate court cannot entertain an argument based on a theory not raised below). This exception is consistent with the rationale for why we generally do not entertain issues not raised below- — that it is “essential ... that parties ... have the opportunity to offer all the evidence they believe relevant to the issues.” Singleton v. Wulff, 428 U.S. 106, 120 , 96 S.Ct. 2868 , 49 L.Ed.2d 826 (1976) (internal quotations and citation omitted). When a new argument presents a question of pure law, neither party has been denied the opportunity to offer relevant evidence in making its case. To the contrary, as has occurred in the case sub judice, both sides have had a full “opportunity to present whatever legal arguments [they] may have” on this particular issue. Id.

Not only is Retic’s argument properly before this Court, it is persuasive. Although Congress has delegated “ ‘significant discretion in formulating guidelines’ ” to the Commission,' the Commission still “must bow to the specific directives of Congress.” United States v. LaBonte, 520 U.S. 751, 757 , 117 S.Ct. 1673 , 137 L.Ed.2d 1001 (1997) (quoting Mistretta v. United States, 488 U.S. 361, 377 , 109 S.Ct. 647 , 102 L.Ed.2d 714 (1989)). In ascertaining whether the Commission has properly interpreted a directive, courts therefore “defer to [the Commission’s] interpretation as long as it is ‘sufficiently reasonable’ in light of the Congressional directive.” United States v. Williams, 53 F.3d 769, 772 (6th Cir.1995) (quoting United States v. Kennedy, 32 F.3d 876, 889 (4th Cir. 1994)); see also United States v. Nottingham, 898 F.2d 390, 393 (3d Cir.1990) (“To the extent that the enabling legislation contains specific direction, the guidelines must comport with that direction.”) When the Commission’s interpretation, as embodied in a guideline, does not square with clear Congressional intent, courts will not apply that guideline. See United States v. Gaines, 122 F.3d 324, 330 (6th Cir.1997) (“When Congress and the Sentencing Commission disagree on matters of sentencing policy, Congress trumps.”); United States v. Branham, 97 F.3d 835 (6th Cir.1996) (holding that the Commission contravened a Congressional directive).

We can not conceive of a clearer example than that presented here where the Commission has so flatly ignored a clear Congressional directive. The Violent Crime Control and Law Enforcement Act of 1994 directed the Sentencing Commission to “promulgate guidelines or amend existing guidelines to provide that a defendant 21 years of age or older-who has been convicted of an offense shall receive an appropriate sentence enhancement if the defendant involved a minor in the commission of the offense.” Pub.L. No. 103-322, § 140008 , 108 Stat. 2033 (1994) (emphasis added). However, in issuing § 3B1.4, the Commission simply removed the age restriction. See U.S.S.G. § 3B1.4. Looking at the face of both the directive and the guideline, we are not convinced that the Commission’s interpretation of the age restriction is “sufficiently reasonable.” To the contrary, the guideline’s “interpretation” was a direct overruling of an explicit Congressional declaration because it eliminated the age limit, lock, stock and barrel.

The Government’s feeble response to this facial conflict is that the Commission’s interpretation simply “implemented Congress’s directive in a slightly broader fashion.” Gov’t Br. at 9. Its sole evidence is the Commission’s own statement that it was implementing the directive in “slightly broader form.” U.S. Sentencing Commission Guideline Manual, Appendix C, Amendment 527 (1997). This argument is unpersuasive for two reasons. First, reflexively relying on the commission’s characterization of its own amendment would abandon our judicial role in “determining whether [the][a]mendment accurately reflects Congress’ intent.” LaBonte, 520 U.S. at 757 , 117 S.Ct. 1673 . More importantly, both the Commission’s characterization and the Government’s contention are specious. Eliminating the minimum *851 age requirement is far more dramatic than introducing a “slightly broader form” of the original directive. As this case demonstrates, without the age limit that Congress originally authorized, the guideline introduces a whole host of situations where defendants under age twenty one can receive enhancements for engaging in criminal activities with youths of similar age, or perhaps even older than the defendants themselves. To resolve situations such as this, which do not present the underlying concern that the existence of an age differential allows an older, adult party to influence a minor to engage in wrongful or dangerous behavior, 1 taking the adult-defendant’s and the accomplice-minor’s relative ages into consideration is hardly a novel concept. Cf. Model Penal Code § 213.3(l)(a) (1962); CauPenal Code 261.5(d) (1999) (“Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is guilty of either a misdemeanor or a felony ... ”). This is precisely the bright-line role which the age limit played in the directive at issue. We therefore find that the limit was a core aspect of that directive, and its wholesale elimination comprised much more than a “slightly broader” application.

Finally, we respectfully disagree with our distinguished colleague’s utilization of a “Congressional silence” theory to conclude that Congress indeed approved of the Commission’s amendment. He points to the six-month review period in which Congress can accept or reject Commission guidelines, and to the fact that “Congress ultimately failed to express disagreement with expansion of the enhancement to” include defendants under twenty one, to conclude that the amendment was “an appropriate reflection of [Congressional] policy.” Ante at 846. See also United States v. Munoz-Cerna, 47 F.3d 207, 212 (7th Cir. 1995) (reading Congressional intent by noting that “Congress had the opportunity to accept, reject, or modify the guideline provision” yet “decided to allow the Commission’s handiwork to take effect”). For several reasons, we are not persuaded by this analysis.

As the Supreme Court stated in another Sentencing Guideline case, “[n]ot every silence is pregnant.” Burns v. United States, 501 U.S. 129, 136 , 111 S.Ct. 2182 , 115 L.Ed.2d 123 (1991) (citation omitted). The Court in Burns counseled that silence should not be “credited when it is contrary to all other textual and contextual evidence of congressional intent.” Id. Although there is admittedly little evidence of that legislative intent beyond the initial directive, we believe the original twenty-one year old age limit is sufficiently clear to overcome an argument from silence.

Our hesitance to infer too much from mere “silence” is driven by our concern that doing so would lead courts wholly to abandon their role of assessing whether enacted guidelines comport with Congressional intent. Indeed, Congress “can revoke or amend any or all the Guidelines as it sees fit either within the 180-day waiting period ... or at any time.” Mistretta, 488 U.S. at 393-94 , 109 S.Ct. 647 . All proposed guidelines are thus subject to review and potential rejection by Congress, and all enacted guidelines have theoretically survived that potential rejection. Heeding “silence” would thus dictate that all enacted guidelines inherently satisfied Congressional intent, and would eliminate our vital role — described in LaBonte and other cases — of squaring the enacted guideline with the original statutory language. See 520 U.S. at 757 , 117 S.Ct. 1673 . Indeed, an Eighth Circuit panel has already taken this dramatic step, concluding (erroneously, we believe) that “[g]iven Congress’s supervisory role, the Sentencing Commission’s formulation of the Guidelines is not subject to judicial review unless the Commission oversteps constitutional bounds.” United States v. Vincent, 167 F.3d 428, 431 *852 (8th Cir.1999). To the contrary, wé believe appellate courts must continue to “hold[ ] the Commission accountable as an agency of limited powers.” Daniel J. Freed, Federal Sentencing in the Wake of the Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L.J. 1681 , 1748 (1992).

We conclude that U.S.S.G. § 3B1.4 is in conflict with a clear Congressional directive. In addition to the reasons articulated by Judge Clay in II.B.2, we believe that Retic’s sentence must be vacated and the case remanded for imposition of a new sentence that is in accordance with the directive’s age limitation.

. Indeed, Congress asked the Commission to take into account the "possible relevance of the proximity in age between the offender and the minor(s) involved in the offense." Pub.L. No. 103-322, § 140008 , 108 Stat. 2033 (1994).