May 8, 2012

The Sixth Circuit Remands For Resentencing Because The Guidelines That Didn't Apply To The Person Being Sentenced Changed

Michael Jackson - no, not that one - pled guilty to dealing crack.

He did so at a particularly odd time in our Nation's history when it comes to crack sentencing.

Mr. Jackson's plea hearing was in June of 2009. The district court judge, wanting to give Mr. Jackson the benefit of what the court was sure would be a new change in our crack sentencing laws - sure that change he could believe in was coming - let Mr. Jackson's sentencing hearing be delayed to see if Congress would change the crack sentencing laws.

The district court waited more than a year. Finally, it could wait no longer.

On July 16, 2010, the district court sentenced Mr. Jackson. In explanation, the judge - who seems like a very nice person - said,

[W]e waited and waited and waited to see if Congress would change the guidelines, or the statutes, with regard to crack versus powder cocaine. My information now indicates that it's a dead issue in Congress and that it's not going to change, at least in the foreseeable future. . . . . I was trying to give you the benefit of any change in the law that might occur, and it doesn't appear that it's going to. For that, I'm sorry . . . .

Less than three weeks later Congress passed the Fair Sentencing Act, changing the law as it applies to crack sentencing. Specifically, the Fair Sentencing Act required new guidelines be issued for crack sentencing. And they were.

1214820_painted_by_numbers___.jpgMr. Jackson's appeal was pending, and the issue he raised in the appeal was whether he should have received the benefit of the new change in the sentencing guidelines for crack cocaine.

The Sixth Circuit reversed and remanded for resentencing under the new crack guidelines in United States v. Jackson on the theory that, basically, it was easier to remand than to require him to file a motion for resentencing under 18 U.S.C. § 3582(c).

If you're familiar with federal sentencing, this makes sense so far. Here's the twilight zone moment - Mr. Jackson was a career offender.

Because Mr. Jackson had at least two prior convictions for violent crimes or drug distribution offenses, he was sentenced under the career offender guidelines in § 4B1.1, and not under the crack guidelines.

That's right - the judge was waiting for a change in the guidelines that didn't apply to Mr. Jackson.

And his lawyer asked for him to be resentenced because there was a change in the guidelines that didn't apply to him.

And the Sixth Circuit reversed and remanded because the guidelines that didn't apply to Mr. Jackson changed after his sentencing.

This may be the only time that a cryptic and underdeveloped record has helped a defendant in an appeal, but the Sixth Circuit noted that

The district court varied downward from the career offender guideline to a sentence it believed was more reasonable based on the crack versus powder disparity -- at least as far as we can tell from the transcript. The court mentioned no other reason that could account for the 38-month downward variance in the ultimate sentence. Jackson's sentence was "based on" the range produced by subtracting three levels from the career offender guideline. The district court rejected the career guideline range in favor of something else. The only "something else" he mentioned at the sentencing hearing was the "untenable" disparity in crack versus powder sentencing. Although we cannot know exactly how the court would have sentenced Jackson had the revised guidelines been in place in July 2010, the court expressed its desire to use the lower range in sentencing Jackson.

The court of appeals then asserted that

If a sentencing judge, having found a defendant to be a career offender, then decides to sentence defendant below the range for career offenders and notes his policy disagreement with the crack cocaine guidelines, ordinary review would say that the sentence was as much "based on" the crack cocaine guidelines as the career offender guidelines.

The Sixth Circuit also said that this result was required by the Supreme Court's recent decision in Freeman v. United States, where the Supreme Court requires that a section 3582(c) proceeding - to modify a sentence based on a retroactive guideline change -

should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence.

Because the district court appeared to consider the crack guidelines as a part of its analytical framework when sentencing Mr. Jackson and those guidelines changed, he'll be resentenced - even though those guidelines didn't apply to him.

Which makes me wonder how attenuated the "analytical framework" has to be. I think I've argued that loss in a fraud case should be calculated with reference to the calculation of drug quantity - is there now an argument that those cases should go back for resentencing when the crack guidelines change?

Maybe I should practice more in the Sixth Circuit.


See also:

Retroactivity In The Federal Sentencing Guidelines and The Parol Evidence Rule

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