United States v. Regalado, No. 05-5739 (2d Cir. 2008)

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05-5739-cr United States v. Regalado 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 - - - - - - - - - - - - - - - - - - - -X 16 UNITED STATES OF AMERICA, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: December 11, 2007 Decided: March 4, 2008 Amended: May 9, 2008) Docket No. 05-5739-cr 17 Appellee, 18 -v.- 19 JOSE REGALADO, 20 21 22 23 24 25 26 Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -X Before: JACOBS, Chief Judge, POOLER and SACK, Circuit Judges. Appeal from the sentence of the United States District 27 Court for the Southern District of New York (Leisure, J.), 28 following defendant s guilty plea to conspiring to 29 distribute and possess with intent to distribute cocaine 30 base. 31 128 S. Ct. 558 (2007), we are unable to discern whether the In light of Kimbrough v. United States, --- U.S. ---, 1 district court would have imposed a non-Guidelines sentence 2 had it been aware that the cocaine Guidelines, like all 3 other Guidelines, are advisory only, and that it therefore 4 had discretion to deviate from the Guidelines where 5 necessary to serve the objectives of sentencing under 18 6 U.S.C. § 3553(a). 7 information, we cannot say whether there was plain error. 8 Accordingly, the case is remanded for further proceedings 9 consistent with this opinion. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Id. at 564, 575. Without that B. Alan Seidler, New York, NY, for Defendant-Appellant. Stephen A. Miller, Assistant United States Attorney (Michael J. Garcia, United States Attorney, Southern District of New York, on the brief, Daniel A. Braun, Assistant United States Attorney, of counsel), United States Attorney s Office for the Southern District of New York, New York, NY, for Appellee. PER CURIAM1 Jose Regalado appeals from the sentence of 262 months imprisonment imposed by the United States District Court for 1 After due consideration of the government s petition for rehearing, which is denied, we have sua sponte amended our opinion. 2 1 the Southern District of New York (Leisure, J.), following 2 his May 1, 2003 guilty plea to conspiring to distribute and 3 possess with intent to distribute cocaine base. 4 Kimbrough v. United States, --- U.S. ---, 128 S. Ct. 558 5 (2007), we are unable to discern whether the district court 6 would have imposed a non-Guidelines sentence had it been 7 aware that the cocaine Guidelines, like all other 8 Guidelines, are advisory only, and that it therefore had 9 discretion to deviate from the Guidelines where necessary to In light of 10 serve the objectives of sentencing under 18 U.S.C. § 11 3553(a). 12 district court for further proceedings necessary to 13 determine whether resentencing is required. 2 Id. at 564, 575. We remand the case to the 14 15 16 BACKGROUND Regalado pleaded guilty to conspiring to distribute and 17 possess with intent to distribute cocaine base in violation 18 of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). 19 the district court determined that Regalado distributed more 20 than 1.5 kilograms of cocaine base, which resulted in a base 2 At sentencing, Prior to filing, this opinion has been circulated to all members of this Court. See, e.g., United States v. Crosby, 397 F.3d 103, 105 n.1 (2d Cir. 2005). 3 1 offense level of 38. 2 After a four-level enhancement for Regalado s leadership 3 role, see § 3B1.1(a), and a three-level reduction for 4 acceptance of responsibility, see § 3E1.1(a) and (b), the 5 resulting sentencing range (at criminal history category I) 6 was 262-327 months. 7 downward departure based on extraordinary family 8 circumstances. 9 to deviate from the Guidelines on the ground that the base See U.S.S.G. § 2D1.1(c)(1) (2004). Regalado unsuccessfully sought a However, he did not ask the district court 10 offense levels for crack cocaine fail to serve the 11 objectives of sentencing under § 3553(a). 12 sentenced Regalado principally to a term of 262 months 13 imprisonment, the bottom of the Guidelines range. 14 Judge Leisure Regalado appealed, and we remanded the case for further 15 proceedings pursuant to United States v. Crosby, 397 F.3d 16 103 (2d Cir. 2005). 17 the original Guidelines sentence was reasonable and should 18 not be disturbed. 19 leniency, but made no argument bearing on the district 20 court s discretion to deviate from the sentencing ranges for 21 crack cocaine offenses. 22 original Guidelines calculation, gave renewed consideration On remand, the government argued that Regalado s Crosby submission requested The district court reviewed its 4 1 to the 18 U.S.C. § 3553(a) factors, and discussed and 2 responded to the parties Crosby submissions. 3 concluded that it would not have imposed a non-trivially 4 different sentence had the Guidelines been advisory rather 5 than mandatory. 6 Regalado, and this appeal followed. It then It therefore declined to resentence 7 8 DISCUSSION 9 I 10 The Guidelines drug quantity table sets base offense 11 levels for crack and powder cocaine offenses. 12 2D1.1. 13 Ct. 558 (2007), the Supreme Court held that the cocaine 14 Guidelines, like all other Guidelines, are advisory only. 15 Id. at 564. 16 respectful consideration to the Guidelines among the array 17 of factors warranting consideration, the judge also has 18 discretion to determine that in the particular case, a 19 within-Guidelines sentence is greater than necessary to 20 serve the objectives of sentencing. 21 (citing 18 U.S.C. § 3553(a)). 22 determination, the judge may consider the disparity between See U.S.S.G § In Kimbrough v. United States, --- U.S. ----, 128 S. Although a sentencing judge must give Id. at 564, 570 In making that 5 1 the Guidelines treatment of crack and powder cocaine 2 offenses, so long as the court does not purport to 3 establish a ratio of its own. 4 564, 575. 5 a district court to tailor [a] sentence in light of other 6 statutory concerns. 7 Booker, 543 U.S. 220, 245-46 (2005)). 8 9 Kimbrough, 128 S. Ct. at Kimbrough thus emphasized the broad discretion of Id. at 570 (quoting United States v. In our review, we owe deference to that discretion. Kimbrough, 128 S. Ct. at 576 ( The ultimate question in 10 Kimbrough s case is . . . whether the District Judge abused 11 his discretion in determining that the § 3553(a) factors 12 supported a sentence of [15 years] and justified a 13 substantial deviation from the Guidelines range. ) (quoting 14 Gall v. United States, --- U.S. ----, 128 S. Ct. 586, 600 15 (2007) (alteration in original)). 16 recently explained in Gall v. United States, the appellate 17 court must review the sentence under an abuse-of-discretion 18 standard. 19 district court committed no significant procedural error, 20 such as treating the Guidelines as mandatory . . . . 21 Next, we review the substantive reasonableness of the 22 sentence for abuse of discretion. 128 S. Ct. at 597. 6 As the Supreme Court First, we ensure that the Id. Id. Such review should 1 take into account the totality of the circumstances, 2 including the extent of any variance from the Guidelines 3 range. . . . It may consider the extent of the deviation, 4 but must give due deference to the district court s decision 5 that the § 3553(a) factors, on a whole, justify the extent 6 of the variance. 7 district court simply because we would have imposed a 8 different sentence. Id. Furthermore, we may not reverse the Id. 9 This guidance and direction from the Supreme Court 10 confirms the broad deference that this Circuit has afforded 11 the sentencing discretion of the district courts. 12 e.g., United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 13 2006); United States v. Crosby, 397 F.3d 103, 112-14 (2d 14 Cir. 2005); United States v. Fleming, 397 F.3d 95, 100 (2d 15 Cir. 2005). 16 tended to discourage district courts from deviating from the 17 crack cocaine Guidelines. 18 Castillo, 460 F.3d 337 (2d Cir. 2006), may have been over- 19 read or misread to inhibit any deviation. 20 may also have been inhibited from exercising their full 21 discretion by the fact that the Sentencing Commission 22 borrowed the 100-to-1 Guidelines ratio from the mandatory See, However, until Kimbrough and Gall, this Circuit Our opinion in United States v. 7 District courts 1 minimums for drug offenses decreed by Congress. 2 (explaining origin of Guidelines crack to powder ratio). 3 Therefore, when a district court sentenced a defendant for a 4 crack cocaine offense before Kimbrough, there was an 5 unacceptable likelihood of error; certainly, the court acted 6 under the influence of a widespread assumption that is now 7 known to be erroneous. 8 for such a deviation from the Guidelines range before the 9 sentencing court, it is impossible to know, ex post, whether Id. at 567 Where the defendant failed to argue 10 the court would have exercised its discretion to mitigate 11 the sentencing range produced by the 100-to-1 disparity. 12 In this situation, we review for plain error. To 13 demonstrate plain error, a defendant must show (1) error, 14 (2) that is plain at the time of appellate review, and (3) 15 that affects substantial rights. 16 met, we have the discretion to notice a forfeited error if 17 (4) it seriously affects the fairness, integrity, or public 18 reputation of judicial proceedings. 19 Quinones, 511 F.3d 289, 316 (2d Cir. 2007) (citing United 20 States v. Olano, 507 U.S. 725, 732 (1993); United States v. 21 Rybicki, 354 F.3d 124, 129 (2d Cir. 2003) (en banc); United 22 States v. Thomas, 274 F.3d 655, 667 (2d Cir. 2001) (en 8 Where these conditions are United States v. 1 banc)). 2 unaware of (or at least insecure as to) its discretion to 3 consider that the 100-to-1 ratio might result in a sentence 4 greater than necessary, there was an unacceptable likelihood 5 of error. 6 imposed between Booker and Castillo is not so high as to 7 invariably satisfy the first step of plain error analysis, 8 it is sufficiently real to merit identification in 9 individual cases. Since the district court was, quite understandably, While the risk of such error in crack sentences As we have held, in the sentencing 10 context there are circumstances that permit us to relax the 11 otherwise rigorous standards of plain error review to 12 correct sentencing errors. 13 F.3d 122, 125 (2d Cir. 2002). 14 appropriate here because a sizable portion of post-Booker, 15 pre-Castillo cases where error is identified will also 16 satisfy the third and fourth plain error factors given the 17 judiciary s long-standing concerns about the severity of the 18 crack Guidelines. 19 F.3d 92, 99, 102 (2d Cir. 1995) (rejecting equal protection 20 challenge to crack Guidelines but commenting that [t]he 21 statistical evidence of disparate impact and several 22 questionable passages in the legislative record are United States v. Sofsky, 287 Such relaxation is See, e.g., United States v. Moore, 54 9 1 discomfiting and that Moore s arguments raise troublesome 2 questions about the fairness of the crack cocaine sentencing 3 policy ); United States v. Singleterry, 29 F.3d 733, 741 4 (1st Cir. 1994) ( Although Singleterry has not established a 5 constitutional violation, he has raised important questions 6 about the efficacy and fairness of our current sentencing 7 policies for offenses involving cocaine substances. ). 8 unusual circumstances surrounding application of the crack 9 Guidelines in the Circuit after Booker and before Castillo 10 justify a narrow and limited exception to our general rule 11 that sentencing courts are presumed to know and follow the 12 applicable sentencing law. 13 443 F.3d 19, 30 (2d Cir. 2006); United States v. Gonzalez, 14 281 F.3d 38, 42 (2d Cir. 2002). 15 The See United States v. Fernandez, If the district court did not fully appreciate the 16 extent of its discretion to deviate from the crack 17 Guidelines range prior to Kimbrough, there was an error. 18 After Kimbrough, such error would be plain. 19 questions are whether the likely error affects substantial 20 rights and whether the error seriously affects the fairness, 21 integrity or public reputation of judicial proceedings. 22 cannot address those issues on the present record. 10 The remaining We 1 2 II In United States v. Crosby we confronted an analogous 3 situation. 4 States v. Booker, 543 U.S. 220 (2005), a district court 5 understood the Guidelines to be mandatory. 6 F.3d at 115-16. 7 the mandatory application of the Guidelines below, and so we 8 reviewed for plain error. 9 district court was influenced by the widespread assumption 10 that the Guidelines were mandatory, which was error, and we 11 saw after Booker that the error was plain. 12 could not tell whether the error affected a substantial 13 right because we could not tell on appeal whether the 14 district court would have imposed a non-trivially different 15 sentence had it recognized that the Guidelines were 16 advisory. 17 sentences pending on direct review [require] remand to the 18 district court, not for the purpose of a required 19 resentencing, but only for the more limited purpose of 20 permitting the sentencing judge to determine whether to 21 resentence, now fully informed of the new sentencing 22 regime. There, the likely error was that prior to United See Crosby, 397 However, the defendant failed to object to Id. at 116. We assumed that the However, we Accordingly, we ruled that pre-Booker/Fanfan Id. at 117 (emphasis in original). 11 Thus, on a 1 Crosby remand, the district court must indicate whether, at 2 the time of the original sentence, it would have imposed a 3 non-trivially different sentence under advisory Guidelines. 4 Id. at 118. If so, vacatur and resentencing is required. 5 Id. at 120. If not, the district court must place on the 6 record a decision not to resentence, with an appropriate 7 explanation, id., and we will then review the sentence for 8 reasonableness. 9 474 (2d Cir. 2007). 10 United States v. Williams, 475 F.3d 468, Similarly, when the sentencing of a defendant for a 11 crack cocaine offense occurred before Kimbrough, we cannot 12 tell whether the district court would have exercised its now 13 clear discretion to mitigate the sentencing range produced 14 by the 100-to-1 ratio. 15 the original sentence would seriously affect[] the 16 fairness, integrity, or public reputation of judicial 17 proceedings, Quinones, 511 F.3d at 316, because imposition 18 of a sentence that the district court would not have imposed 19 had it fully appreciated the extent of its discretion would, 20 in our view, seriously undermine the public s confidence in 21 the judicial process. 22 437, 445 (2d Cir. 2003) (discussing district court s If it would have, an affirmance of United States v. Keigue, 318 F.3d 12 1 erroneous use of expired version of the Guidelines). 2 is especially true given the relative ease of correcting the 3 sentencing error on remand, thus accentuating the potential 4 unfairness of allowing the district court s error to stand. 5 United States v. Gordon, 291 F.3d 181, 195 (2d Cir. 2002). 6 This We therefore adopt the Crosby mechanism and apply it 7 here. 8 the sentencing range for the crack cocaine offense fails to 9 serve the objectives of sentencing under § 3553(a), we will 10 remand to give the district court an opportunity to indicate 11 whether it would have imposed a non-Guidelines sentence 12 knowing that it had discretion to deviate from the 13 Guidelines to serve those objectives. 14 should vacate the original sentence and resentence the 15 defendant. 16 that it is declining to resentence, and it should provide an 17 appropriate explanation for this decision. 18 have not already done so, we will review the sentence for 19 reasonableness. 20 Where a defendant has not preserved the argument that If so, the court If not, the court should state on the record On appeal, if we Crosby recognized that a resentencing might yield a 21 higher sentence. 22 prospect on a remand under Kimbrough. That is a remote and (at most) rare 13 Nevertheless, (as in 1 Crosby) the remand, on a defendant s appeal, that 2 authorizes a district judge to consider whether to 3 resentence and that permits resentencing should include an 4 opportunity for a defendant to avoid resentencing by 5 promptly notifying the district judge that resentencing will 6 not be sought. 7 intimate no view at this time as to whether the Ex Post 8 Facto Clause would prohibit a court from imposing a more 9 severe sentence than a defendant would have received had the Crosby, 397 F.3d at 118. Likewise, we 10 [cocaine] Guidelines [been considered] mandatory. 11 117 n.17 (citing United States v. Broderson, 67 F.3d 452, 12 456 (2d Cir. 1995)). Id. at 13 14 15 III Regalado s brief on appeal, filed pre-Kimbrough, does 16 not contest the 100-to-1 ratio. 17 raise on appeal would ordinarily have been considered and 18 decided in a summary order, on the grounds set forth in the 19 margin.3 ) 3 (The arguments Regalado did Because Regalado does not raise this argument on Regalado unreasonable, evaluation of Gallante, 111 conclude that argues that his sentence was substantively but we owe deference to the district court s his personal circumstances, United States v. F.3d 1029, 1034 (2d Cir. 1997), and cannot his sentence exceed[s] the bounds of 14 1 appeal, we would ordinarily treat it as forfeited. 2 States v. Pereira, 465 F.3d 515, 520 n.5 (2d Cir. 2006). 3 are not required to do so, however. 4 AG, 378 F.3d 210, 213 (2d Cir. 2004). 5 presented by this appeal, we think it the better course to 6 consider the argument. 7 United We Sniado v. Bank Austria On the circumstances We cannot know whether the district court would have 8 imposed a non-Guidelines sentence had it been aware (or 9 fully aware) of its discretion to deviate from the crack allowable discretion. United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006) (citation and internal quotation marks omitted). We also reject Regalado s Sixth Amendment claim that his offense level was calculated based on a drug quantity determined by the district court because during his plea allocution he admitted to distributing more than 1.5 kilograms of crack cocaine, more than the 50 grams necessary to trigger a ten-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A). In addition, Regalado s (unpreserved) due process challenge to the 100-to-1 powder to crack cocaine ratio underlying his sentence is without merit as we have repeatedly rejected similar constitutional challenges. See, e.g., United States v. Stevens, 19 F.3d 93, 97 (2d Cir. 1994). As for Regalado s ineffective assistance of counsel claim, he argues only that his trial attorney failed to raise the above constitutional challenges to his sentence, but [f]ailure to make a meritless argument does not amount to ineffective assistance. United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999). It is therefore beyond any doubt that his attorney s assistance was not ineffective. United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990). 15 1 cocaine ranges in light of the objectives of sentencing.4 2 Because we are unable to tell whether the likely procedural 3 error (i.e., unawareness of discretion to consider that the 4 100-to-1 ratio may cause a particular sentence to be 5 excessive) affected substantial rights and affected the 6 fairness, integrity or public reputation of judicial 7 proceedings, we must remand.5 8 9 10 11 IV After additional research and experience with the Guidelines, the Sentencing Commission concluded that the 4 This appeal presents an additional wrinkle because on a Crosby remand -where the issue is whether the sentencing judge would have imposed a non-trivially different sentence had it anticipated Booker--there would have been no occasion for the Court to consider the harshness of the 100-to-1 ratio. Even if the court did consider this issue, it would not have had to say so explicitly. However, where, as here, a district court declines to resentence on a Crosby remand, we still review the underlying sentence for reasonableness. United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007). Therefore, we must assess whether the original sentencing was infected by procedural error. Id. 5 Should Regalado appeal from the district court s decision on remand, the law of the case doctrine ordinarily will bar [him] from renewing challenges to rulings made by the sentencing court that were adjudicated by this Court -or that could have been adjudicated by us had [Regalado] made them -during the initial appeal that led to a remand. Williams, 475 F.3d at 475. 16 1 100-to-1 powder to crack ratio fails to meet the objectives 2 of sentencing because it rests on unsupported assumptions 3 about the relative harmfulness of the drugs, it punishes 4 retail crack dealers more harshly than wholesale drug 5 distributors, and it promotes an unwarranted disparity based 6 on race. 7 Sentencing Commission, Report to Congress: Cocaine and 8 Federal Sentencing Policy 91-103 (May 2002)). 9 efforts by the Commission to reduce the crack to powder 10 ratio beginning in 1995 failed to induce congressional 11 action. Kimbrough, 128 S. Ct. at 568 (citing United States Repeated Kimbrough, 128 S. Ct. at 569. 12 However, the Commission recently reduced the base 13 offense level associated with each quantity of crack by two 14 levels, effective November 1, 2007. 15 (2007); Amendments to the Sentencing Guidelines for United 16 States Courts, 72 Fed. Reg. 28571-28572 (2007). 17 has been given retroactive effect because the Sentencing 18 Commission added this amendment to those listed at U.S.S.G. 19 § 1B1.10(c). 20 (2d Cir. 2003). 21 jurisdiction pursuant to 18 U.S.C. § 3582(c)(2) to decide in 22 the first instance whether to modify previously-imposed See U.S.S.G. § 2D1.1 That change See United States v. Garcia, 339 F.3d 116, 120 Therefore, the district courts now have 17 1 sentences where the cocaine ranges on which they were based 2 have subsequently been lowered. 3 courts jurisdiction, defendants should move for 4 modification of their sentences pursuant to 18 U.S.C. § 5 3582(c)(2) in the district courts. 6 Criminal Justice Act can be expected to be available for 7 such motions.) 8 district courts must consider the factors set forth in 18 9 U.S.C. § 3553(a) anew and in light of Gall and Kimbrough to To invoke the district (Assistance under the In deciding whether to modify the sentence, 10 the extent that they may be applicable, and relevant 11 Sentencing Commission policy statements. 12 3582(c)(2). 13 See 18 U.S.C. § In considering the present appeal, we recognize that 14 whether we remand now or consign Regalado to seeking relief 15 by motion, the ultimate result may well be the same. 16 are certain factual equivalencies between deciding whether 17 one would have imposed a non-Guidelines sentence with 18 broader discretion to deviate from the Guidelines, and 19 arriving at a different sentence by a different Guidelines 20 computation entirely (which might obviate the need to 21 exercise that discretion). 22 little sense to allow a judgment to become final even though There At the same time, it makes 18 1 the district court would not have imposed it in light of its 2 now better defined powers so that the same essential 3 question can be presented by motion. 4 course is to remand to the district court. Therefore, the best 5 6 7 8 CONCLUSION The case is remanded for further proceedings consistent with this opinion. 19

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