USA v. Sanchez, No. 05-3812 (2d Cir. 2008)
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05-3812(L) USA v. Sanchez 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 - - - - - - 4 August Term, 2006 5 (Argued: May 30, 2007 Decided: February 29, 2008) 6 7 Docket Nos. 05-3812(L), 05-3819(CON), 05-3824(CON), 05-4717(CON) 8 _________________________________________________________ 9 UNITED STATES OF AMERICA, 10 Appellee, 11 - v. - 12 13 ALFONSO SANCHEZ, DARYL FOX, TROY KEYS, and RAYMOND FOX, aka Knoc, aka Nack, 14 15 Defendants-Appellants. _________________________________________________________ 16 Before: KEARSE, STRAUB, and POOLER, Circuit Judges. 17 Appeals challenging prison terms imposed in the United 18 States District Court for the Southern District of New York, Miriam 19 Goldman 20 punishment of repeat offenders, see 28 U.S.C. § 994(h) and 21 U.S.C. 21 § 22 conspiracy counts charging trafficking in cocaine and cocaine base, 23 see 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846. 24 25 851, Cedarbaum, following Affirmed Judge, pursuant defendants' as to to provisions convictions defendant Raymond on for enhanced substantive Fox; remanded and for clarification as to defendants Sanchez and Keys and for clerical 1 correction 2 defendant 3 correction of the judgment entered against him. of the Daryl judgments Fox entered dismissed, with against them. instruction Appeal for of clerical 4 5 6 7 8 9 10 JESSICA A. ROTH, Assistant United States Attorney, New York, New York (Michael J. Garcia, United States Attorney for the Southern District of New York, Harry Sandick, Assistant United States Attorney, New York, New York, on the brief), for Appellee. 11 12 13 14 WILLIAM J. STAMPUR, New York, New York (Hurwitz Stampur & Roth, New York, New York, on the brief), for DefendantAppellant Alfonso Sanchez. 15 16 17 18 19 LOUIS V. FASULO, New York, New York (Fasulo, Shalley & DiMaggio, New York, New York), representing Defendant-Appellant Daryl Fox, filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). 20 21 22 23 STACEY RICHMAN, Bronx, New York (Law Office of Murray Richman, Bronx, New York, on the brief), for Defendant-Appellant Troy Keys. 24 25 LINDA GEORGE, Hackensack, New Jersey, for Defendant-Appellant Raymond Fox. 26 KEARSE, Circuit Judge: 27 Defendants Alfonso Sanchez, Daryl Fox (or "Daryl"), Troy 28 Keys, and Raymond Fox (or "Raymond") appeal from judgments entered 29 in the United States District Court for the Southern District of New 30 York, Miriam Goldman Cedarbaum, Judge, following their pleas of 31 guilty to conspiracy to distribute and possess with intent to 32 distribute narcotics, in violation -2- of 21 U.S.C. § 846, and 1 distribution of and possession with intent to distribute narcotics, 2 in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). 3 Sanchez was sentenced principally to 188 months' imprisonment; Daryl 4 Fox was sentenced principally to 135 months' imprisonment; and Keys 5 was sentenced principally to 235 months' imprisonment; each of those 6 prison terms was to be followed by a five-year term of supervised 7 release. 8 prior-felony information pursuant to 21 U.S.C. § 851 giving notice 9 that he was subject to the enhanced penalties set forth in 21 U.S.C. Raymond Fox, against whom the government had filed a 10 § 11 imprisonment, 12 release. 13 imposed on them, contending principally that the district court 14 erred in believing that it lacked authority under 28 U.S.C. § 994(h) 15 to 16 constitutionality of 21 U.S.C. § 851. 17 moved to withdraw as counsel pursuant to Anders v. California, 386 18 U.S. 738 (1967), stating that Daryl has no nonfrivolous issues for 19 appeal. 20 we dismiss the appeal of Daryl Fox, with instruction for the 21 clerical correction of the judgment entered against him; and we 22 remand for clarification, and for such further proceedings as may be 23 necessary, with respect to the sentences imposed on Sanchez and 24 Keys. 841(b)(1)(A), to was be sentenced followed by principally a 10-year to term 240 of months' supervised On appeal, Sanchez and Keys challenge the prison terms impose shorter terms. Raymond Fox challenges the Daryl Fox's attorney has For the reasons that follow, we affirm as to Raymond Fox; -3- 1 I. 2 BACKGROUND The events leading to the present prosecution, which 3 followed 4 Administration ("DEA") into narcotics trafficking in the New York 5 area, are not in dispute. 6 A. 7 a lengthy investigation by the Drug Enforcement The Events and the Pleas of Guilty On November 5, 2003, DEA agents raided an apartment used 8 by defendants in their narcotics distribution business. 9 the agents approached the door of the apartment, others observed 10 bags being thrown out of a window in the apartment and observed 11 several people--including Sanchez, Daryl Fox, and Raymond Fox-- 12 exiting through the window. 13 the agents found approximately $60,000 in cash, 1,860 grams of 14 cocaine, and 478 grams of cocaine base in a form commonly known as 15 crack ("crack"). 16 As some of In the bags thrown through the window, Defendants and others were subsequently arrested. The 17 pertinent superseding indictment charged defendants in two counts: 18 (a) conspiracy to distribute and possess with intent to distribute 19 more than five kilograms of a substance containing cocaine and more 20 than 50 grams of a substance containing crack, in violation of 21 21 U.S.C. § 846 (count one); and (b) distribution of and possession 22 with intent to distribute those quantities of substances containing 23 cocaine and crack, respectively, in violation of 21 U.S.C. §§ 812, -4- 1 841(a)(1), and 841(b)(1)(A) (count two). 2 provisions of § 841(b)(1)(A), the penalty for each of the above 3 charges included imprisonment for a maximum of life or a minimum of 4 10 years, or, as to a defendant who committed such a crime after a 5 prior conviction of a drug trafficking felony, imprisonment for a 6 maximum 7 § 841(b)(1)(A) (penalties for distribution and possession with 8 intent to distribute); id. § 846 (penalties for conspiracy are the 9 same as those prescribed for the offense whose commission was the of life or a minimum of 20 Under the pertinent years. See 21 U.S.C. 10 object of the conspiracy). 11 government filed an information against Raymond Fox (the "§ 851 12 Information") alleging that his record included prior convictions 13 for drug trafficking felonies. Pursuant to 21 U.S.C. § 851(a)(1), the 14 In the summer of 2004, Keys, Daryl Fox, and Raymond Fox 15 pleaded guilty to counts one and two of the superseding indictment. 16 Sanchez pleaded guilty to both of those counts insofar as they 17 charged offenses with respect to cocaine but denied his involvement 18 with crack; the district court accepted his plea as thus limited. 19 B. Sentencing 20 Daryl Fox entered his plea of guilty pursuant to a plea 21 agreement. The agreement stated the understanding that, under the 22 Sentencing Guidelines 23 category ("CHC") was III; the parties stipulated that his total 24 offense level would ("Guidelines"), be 31. Daryl's Accordingly, -5- criminal subject to history a final 1 determination by the district court, the parties agreed that Daryl's 2 range of imprisonment would be 135-168 months. 3 alia, not to appeal any sentence imposing a prison term within or 4 below that range. 5 135 months. 6 Daryl agreed, inter The prison term eventually imposed on Daryl was A presentence report ("PSR") was prepared on each of the 7 defendants. 8 were in their early 30s at the time of the present offenses, 9 reported that each of them had previously been convicted of at least 10 two drug trafficking felonies or violent felonies, and that each was 11 thus a career offender within the meaning of Guidelines § 4B1.1 (the 12 "career-offender guideline"). 13 states that 14 15 16 17 18 19 20 21 22 The PSRs on Sanchez, Keys, and Raymond Fox, all of whom Subsection (a) of that guideline [a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. 23 Guidelines § 4B1.1(a). 24 that the CHC of a career offender is VI. 25 Career-offender status may also increase the defendant's offense 26 level. 27 offense level of a career offender whose offense subjects him to a 28 maximum prison term of life is at least 37. 29 Subsection (b) of that guideline provides See id. § 4B1.1(b). Before any adjustment for acceptance of responsibility, the See id. None of the defendants disputed the accuracy of the PSRs' -6- 1 descriptions of their respective criminal records. 2 Sanchez and the PSRs for Keys and Raymond as ultimately amended 3 found that the total offense level for each, taking into account a 4 three-step decrease for acceptance of responsibility, was 34. Given 5 an offense level of 34 and a CHC of VI, the Guidelines-recommended 6 range of imprisonment for each of these three defendants was 262-327 7 months. 8 Information filed against him, he was subject to a 20-year statutory 9 minimum prison term. The PSR for The PSR for Raymond noted that, by reason of the § 851 10 Defendants were sentenced during the summer of 2005. In 11 January 2005, the Supreme Court had decided United States v. Booker, 12 543 U.S. 220 (2005), holding that the Guidelines are not mandatory 13 but advisory. 14 prison term below the range recommended for him under the advisory 15 Guidelines. 16 defendant. 17 1. Each defendant urged the district court to impose a A separate sentencing hearing was held for each Keys 18 To the extent pertinent to his appeal, Keys's principal 19 contention 20 substantially 21 history. 22 1990 23 controlled substance in the third degree, for which he was sentenced 24 to serve 1-3 years in prison and served approximately six months; New at sentencing overrepresented was the that career-offender seriousness of his status criminal His record consisted of two prior felony convictions: York State conviction -7- for criminal possession of a a 1 and 2 possession of a controlled substance in the fifth degree, for which 3 he was sentenced to 1½-3 years in prison and served the minimum. 4 Keys pointed out that his prior offenses were committed when he was 5 a very young man and that he had never served more than 18 months in 6 jail--substantially less than the 10-year minimum sentence he was 7 facing for the charges in the instant case. 8 that Keys, who had steady legitimate employment and a positive 9 recommendation from one of his former employers, was not the type of 10 person to whom career-offender status was intended to be applied and 11 urged the court not to sentence him to 262-327 months' imprisonment 12 as recommended by the PSR, but rather "to sentence him to the 13 mandatory minimum" of 120 months (Keys Sentencing Transcript, June 14 28, 2005 ("Keys S.Tr."), at 8; see also id. at 21-23). a 1991 New York State conviction for attempted criminal Keys's attorney argued 15 The district court stated that "because of the career 16 offender statute it will certainly have to be more than th[e 17 mandatory minimum]" (id. at 14), referring to 28 U.S.C. § 994(h), 18 which instructs the Sentencing Commission (or "Commission") to 19 assure that the guidelines governing career offenders specify a 20 range of "imprisonment at or near the maximum term authorized." The 21 Assistant United States Attorney ("AUSA") agreed: 22 23 24 THE COURT: . . . . I have read and reread the statute on career offense, and . . . Congress has made it clear that a career offender must be above-- 25 MS. ROTH [AUSA]: 26 THE COURT: The minimum. Well, more than above the minimum. -8- 1 MS. ROTH: Near the maximum. 2 3 4 5 6 THE COURT: Well that's the statutory language. The statutory language makes clear that a career offender may not be given as short a sentence as somebody similarly situated, if there is such a thing, who is not a career offender. 7 8 9 10 11 12 13 So, there has to be some distinction based on career offense, and that means clearly, whatever else, Mr. Keys will go to prison for more than the mandatory minimum, under all circumstances that I can see here; that is, I have carefully considered enough to know that. How much more is really my problem. 14 (Keys S.Tr. 18-19.) 15 The court agreed that the 262-327-month range of 16 imprisonment resulting from Keys's designation as a career offender 17 overrepresented 18 Recognizing both that the Guidelines provided that "[i]f reliable 19 information indicates that the defendant's criminal history category 20 substantially over-represents the seriousness of the defendant's 21 criminal history or the likelihood that the defendant will commit 22 other crimes, a downward departure may be warranted," Guidelines 23 § 4A1.3(b)(1), and that as amended in October 2003 the Guidelines 24 provided that such a departure "may not exceed one criminal history 25 category," id. § 4A1.3(b)(3)(A), the court reduced Keys's CHC by one 26 step, from VI to V. 27 level of 34, resulted in an advisory Guidelines range of 235-293 28 months. 29 appropriate number." 30 argued "that that is still an overstatement" of Keys's criminal the seriousness of his criminal history. That reduction, in combination with an offense The court stated, "I think that in this case 235 is the (Keys S.Tr. 32.) -9- Although Keys's attorney 1 history (id.), the court stated that it read "[t]he career offender 2 statute 3 appropriate sentence" (id. at 35). . . . as itself placing a substantial limit on the 4 The court sentenced Keys to 235 months, the bottom of what 5 it concluded was the applicable advisory-Guidelines range, stating 6 that 7 8 9 10 11 12 13 14 15 16 [i]t is really under the statute on career offender that I feel bound to carry out the intention of Congress as expressed in that statute, to impose a substantially heavier sentence on a career offender, and I do so with that understanding. . . . I have studied that statute over and over in an effort to discern the intention of Congress, and that is the best I can do in this case. (Id. at 47-48.) 2. Sanchez 17 At his plea hearing, Sanchez had argued that his role in 18 the conspiracy was minor, i.e., that he merely delivered drugs and 19 collected money when instructed to do so. 20 involvement with crack, and his plea of guilty had been accepted 21 with respect to trafficking in cocaine only. 22 hearing, Sanchez did not dispute that he met the definition of 23 career offender; his PSR credited him with at least two prior 24 felonies that qualified as crimes of violence. 25 argued, 26 "technically," he was not one "in reality" (Sanchez Sentencing 27 Transcript, June 29, 2005 ("Sanchez S.Tr."), at 3), noting that his however, that while Sanchez - 10 - He had also denied any was At his sentencing Sanchez's attorney a career offender 1 role in these offenses was minor, that Sanchez had never before been 2 convicted of a drug offense, and that his most serious prior crimes 3 had been committed more than 10 years earlier, when he was a 4 teenager or very young man. 5 depart downward to 120 months, the statutory minimum, from the 6 PSR-recommended imprisonment range of 262-327 months. Sanchez's attorney urged the court to 7 The district court noted, as it had in sentencing Keys on 8 the previous day, that where career-offender status overstates a 9 defendant's criminal history, Guidelines § 4A1.3(b) permits a CHC 10 reduction from VI to V. 11 28 U.S.C. § 994(h), 12 13 14 15 16 17 18 But the court stated, again referring to [t]here is a statute. This is not entirely a guidelines matter. The Congress defined career criminal and . . . the criminal history of this defendant may or may not be overstated. His role in the offense may justify an adjustment, but whether he fits the definition in the statute is a different matter. 19 (Sanchez S.Tr. 5.) 20 entitled, even "post Booker," to consider a defendant's role in 21 determining an appropriate sentence under 18 U.S.C. § 3553, the 22 court stated 23 24 25 26 27 28 29 30 31 32 33 After the AUSA indicated that the court was I do find that the factors set out by Congress for sentencing, which suggest that every sentence shall be individually determined, make[] at least in this case that offense level immune to consideration of role in the offense. To that extent as applied in this particular case, I find that applying offense level 37 [sic] to Alfonso Sanchez results in a sentence that is not consistent with the factors set out by Congress in determining sentence; that the sentence that would result is clearly longer than necessary for any purpose of deterrence. - 11 - 1 (Id. at 15.) 2 Guidelines, to adjust Sanchez's offense level for his role in the 3 offense, it 4 5 6 7 The court stated that if it were allowed, under the would set the offense level at 32, deducting two levels from the 34 that appears in the presentence report . . . . . . . . 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 I find that on the basis of all the information that has been presented to me in this case, and on the basis of the plea allocution of Mr. Sanchez, that he had no contact with crack and that his role was minor in this arrangement. Therefore, if I were able to apply a 2-level deduction for minor offense role his level would be 32[,] and if I also were to follow the policy pronouncement of the Sentencing Commission . . . where the criminal history of a career offender substantially overstates the actual history, in this case because the two offenses taken into consideration were committed when the defendant was in his teens and the length of those sentences [was short] as compared to the length of any sentence to which he is now subject, [the resulting sentence would be] far beyond anything required for deterrence. That is, he has not served very much time in prison so one would expect that he could be deterred by even the mandatory minimum of ten years, which is a very substantial number. But if I were to make the calculation that I have described, the guideline range for level 32 and criminal history 5 would be 188 to 235 months. 31 32 I would then set the career offender sentence at 188 months. 33 (Id. at 15-17 (emphases added).) 34 Although agreeing with Sanchez's attorney that a sentence 35 of 120 months would provide sufficient deterrence, the court said, 36 37 38 39 I also have to--and do--carefully consider the intent of Congress in enacting a statute that defines career criminal and that provides that a career criminal must be sentenced above the - 12 - 1 2 3 4 5 6 7 mandatory minimum. (Id. at 17 (emphasis added).) The court added that this is not a matter of guidelines. This is a matter of a congressional enactment which directs, as I read it. . . . Congress has provided that a career offender, as defined by statute, must be sentenced above the mandatory minimum. 8 (Id. at 18; see also id. at 19 ("[A]s I read the congressional 9 statute a career criminal may not be sentenced to the minimum."); 10 id. at 20 ("I feel bound by the statute itself . . . . not to reduce 11 a career criminal sentence to the level of a mandatory minimum."); 12 id. at 21-22 ("I read [the at-or-near-the-maximum language] as 13 meaning that Congress has provided that what Congress defined as a 14 career offender requires some time in addition to the mandatory 15 minimum.").) 16 The AUSA stated, "I am not sure that 28 U.S.C. 994 17 requires the court per se to impose a sentence higher than the 18 maximum [sic]"; and she interpreted the court as saying that § 994 19 was merely a factor to be considered, but the court disagreed: 20 21 22 23 24 25 26 MS. ROTH: . . . . I don't understand your Honor to be saying that you feel you, as a matter of law, under 994 could not under any circumstances impose a sentence that was the mandatory minimum for a career offender. THE COURT: Well, I think I am saying that. (Sanchez S.Tr. 20 (emphasis added).) 27 The court went on to state that, "in any event, in this 28 particular case I am of the view that even if I could I would not 29 impose a sentence less than I have determined." - 13 - (Id. at 21.) The 1 AUSA asked 2 3 4 5 6 7 whether[,] analyzing objectively the factors under 3553 taken altogether and including in that consideration Congress' intent in enacting 994, is this the considered judgment of the court that this is an appropriate sentence for this defendant? I think that is the question. 8 9 THE COURT: otherwise. 10 11 Yes, of course. I would not set it But I do feel constrained by the statute. think that is pretty clear. 12 (Id. at 24 (emphases added).) 13 I stated: 14 15 16 17 18 Sanchez's attorney immediately My colleague is trying to prepare the circuit for review, Judge, and I appreciate your comments because I think you have made it perfectly clear that if you could you might impose a lesser sentence. 19 THE COURT: That is correct. 20 (Id. at 24-25 (emphases added); see also id. at 23 ("If I were free 21 to 22 situation.").) 23 choose the sentence Ultimately, we the would court be in departed an entirely downward different in criminal 24 history category to a CHC of V in accordance with Guidelines 25 § 4A1.3(b); and, going beyond what the court appeared to believe was 26 sanctioned by the Guidelines, the court further reduced the prison 27 time to be served by the equivalent of two Guidelines-offense-level 28 steps in consideration of Sanchez's role in the offense. 29 two-step reduction in offense level under the Guidelines would have 30 resulted in a Guidelines range of 188-235 months. The court ordered - 14 - Such a 1 2 Sanchez to serve 188 months. 3. Raymond Fox 3 Raymond Fox was sentenced some five weeks later. His 4 attorney did not dispute that Raymond's record included the prior 5 narcotics felony convictions set forth in the government's § 851 6 Information; nor did she argue that Raymond was not a career 7 offender. 8 election to file the § 851 Information against Raymond--and only 9 Raymond--was to subject him to a statutory mandatory minimum term of 10 20 years' imprisonment, whereas his position in the narcotics 11 enterprise was similar to that of Keys, for whom the court had 12 ordered a prison term of less than 20 years. 13 order to avoid imposing disparate sentences on similarly situated 14 defendants, the court had discretion to sentence Raymond to less 15 than the statutory minimum of 20 years. The district court rejected 16 this contention, stating that its duty was to follow the will of 17 Congress as expressed in § 841(b)(1)(A)'s provision setting the 18 minimum allowable sentence. She argued, however, that the effect of the government's She argued that, in 19 Raymond's attorney then urged the court, if it could not 20 sentence Raymond below the statutory minimum, to sentence him to no 21 more than the minimum in order to lessen the disparity--occasioned 22 only by the government's decision to file a § 851 Information 23 against Raymond but not Keys--between the sentences imposed on 24 similarly situated defendants. The court had initially stated that - 15 - 1 it read "the Congressional language" of 28 U.S.C. § "994 . . . as 2 requiring in the case of a career offender that the sentence not 3 even be at the minimum." (Raymond Fox Sentencing Transcript, August 4 2, 2005 ("Raymond S.Tr."), at 10 (emphasis added).) 5 court 6 government, although it had opposed the request that Raymond be 7 sentenced below the statutory minimum, made no response to the 8 request that he be sentenced at the minimum. 9 10 was persuaded by the proportionality However, the argument; and the The court sentenced Raymond to 240 months', or 20 years', imprisonment, stating 11 12 13 14 15 16 17 I set the minimum sentence required by law because to sentence Mr. Fox to any more time would violate the strong interest that both the Congress and the Sentencing Commission have shown in proportionality, and that is one of the important factors set out in the statute and it is, indeed, an important factor in the administration of justice. 18 (Id. at 19.) 19 C. Issues on Appeal 20 Defendants have appealed their sentences. Daryl Fox's 21 attorney has moved to withdraw as counsel and has filed an Anders 22 brief 23 nonfrivolous arguments to support his appeal. 24 moved to dismiss Daryl's appeal on the ground that, in his plea 25 agreement, he waived the right to appeal the sentence that was 26 ultimately imposed on him. 27 granted, with instruction for a clerical correction to be made to discussing the record and stating that Daryl has no The government has Those motions have merit and are - 16 - 1 the judgment entered against him, see Part II.E. of this opinion. 2 Sanchez and Keys contend that the district court erred in 3 believing that 28 U.S.C. § 994(h) deprived it of authority to order 4 shorter prison terms than those it imposed. 5 the court failed to consider the sentencing factors set out in 6 18 U.S.C. § 3553 and that his sentence is unreasonable. 7 reasons stated in Part II.B. below, we conclude that § 994(h) did 8 not deprive the district court of authority to impose shorter prison 9 terms than those it imposed; and, as discussed in Part II.C. below, 10 we remand for clarification as to whether with that understanding of 11 § 994(h) the court would have imposed shorter terms, and for further 12 proceedings, if necessary, with respect to the sentences of Sanchez 13 and Keys. 14 Keys also argues that For the Raymond Fox makes two constitutional challenges. He (a) of 15 contends 16 separation of powers, and (b) that the government's filing of the 17 § 851 Information against him without explanation violated his right 18 to due process. 19 reject these contentions. 20 21 that 21 U.S.C. 851 violates the principle For the reasons stated in Part II.D. below, we II. A. § DISCUSSION Post-Booker Procedures and Standards of Review 22 Following the Supreme Court's decision in Booker, the 23 district court may impose either a Guidelines sentence or a non- 17 - 1 Guidelines sentence. 2 States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005) ("Crosby"). 3 arriving at either type of sentence, the sentencing judge must 4 consider, inter alia, the factors set forth in 18 U.S.C. § 3553(a), 5 including 6 Guidelines and the available departure authority. See, e.g., United 7 States 8 ("Rattoballi"); United States v. Selioutsky, 409 F.3d 114, 118 (2d 9 Cir. 2005) ("Selioutsky"); Crosby, 397 F.3d at 111-12. the v. See, e.g., Booker, 543 U.S. at 245-46; United imprisonment 10 Rattoballi, In the 452 ranges F.3d post-Booker recommended 127, era, 131-32 we by the (2d review In advisory Cir. 2006) sentences for 11 reasonableness, see, e.g., Booker, 543 U.S. at 261; United States v. 12 Fernandez, 443 F.3d 19, 26 (2d Cir.), cert. denied, 127 S. Ct. 192 13 (2006); Crosby, 397 F.3d at 113, under an abuse-of-discretion 14 standard, see, e.g., Gall v. United States, 128 S. Ct. 586, 600 15 (2007); United States v. Fernandez, 443 F.3d at 27; Crosby, 397 F.3d 16 at 114. 17 length 18 procedures 19 reasonableness)." 20 Cir. 2007). 21 "Reasonableness review involves consideration of both the of the used sentence to (substantive arrive at reasonableness) the sentence and the (procedural United States v. Canova, 485 F.3d 674, 679 (2d As to substantive reasonableness, "[s]ection 3553(a) . . . 22 sets forth numerous factors that guide sentencing. 23 [are to] guide appellate courts . . . in determining whether a 24 sentence is unreasonable." 25 reviewing a sentence for "substantive reasonableness, . . . we Those factors Booker, 543 U.S. at 261. - 18 - Thus, in 1 consider whether the length of the sentence is reasonable in light 2 of the factors outlined in 18 U.S.C. § 3553(a)." 3 F.3d at 132. 4 determining the particular sentence to be imposed, is to consider 5 "the nature and circumstances of the offense and the history and 6 characteristics of the defendant," 18 U.S.C. § 3553(a)(1); and it 7 provides that "[t]he court shall impose a sentence sufficient, but 8 not greater than necessary, to comply with the purposes set forth in 9 paragraph (2) of this subsection," id. § 3553(a). Rattoballi, 452 That section provides in part that the court, in Paragraph (2) of 10 subsection (a) requires the court to consider "the need for the 11 sentence" that is imposed 12 13 14 (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; 15 16 (B) to afford adequate deterrence to criminal conduct; 17 18 (C) to protect the public from further crimes of the defendant; and 19 20 21 22 (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner . . . . 23 18 U.S.C. § 3553(a)(2). 24 requires the court to consider are the kinds of sentences and the 25 sentencing 26 offense committed by the applicable category of defendant as set 27 forth in the guidelines . . . issued by the Sentencing Commission," 28 id. § 3553(a)(4)(A)(i); "any pertinent policy statement . . . issued ranges Among the other factors that § 3553(a) established for - 19 - "the applicable category of 1 by the Sentencing Commission," id. § 3553(a)(5)(A); and "the need to 2 avoid unwarranted sentence disparities among defendants with similar 3 records 4 § 3553(a)(6). who have been found guilty of similar conduct," id. 5 As to procedural reasonableness, we seek to determine, 6 inter alia, whether the sentencing judge "select[ed] a sentence in 7 violation of applicable law," or "committed an error of law in the 8 course of exercising discretion," Crosby, 397 F.3d at 114. 9 sentence would be procedurally unreasonable if, for example, the 10 sentencing judge failed to consider the factors listed in § 3553(a), 11 including the relevant guidelines and policy statements. 12 also be procedurally unreasonable if the court made "[a]n error in 13 determining the applicable Guideline range or the availability of 14 departure authority," Selioutsky, 409 F.3d at 118 (emphasis added); 15 see, e.g., Crosby, 397 F.3d at 114-15, or erroneously interpreted a 16 pertinent statutory provision as restricting its authority to impose 17 a given non-Guidelines sentence. 18 A It would Ordinarily, the matter of whether to grant a departure or 19 a 20 sentencing judge. See, e.g., Selioutsky, 409 F.3d at 118-19. Under 21 the pre-Booker sentencing regime, a defendant had no right to appeal 22 the sentencing court's discretionary refusal to grant a downward 23 departure, see, e.g., United States v. Cuevas, 496 F.3d 256, 267-68 24 (2d Cir. 2007); United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 25 2006), or to appeal the extent of a downward departure, see, e.g., non-Guidelines sentence lies within - 20 - the discretion of the 1 United States v. Hargrett, 156 F.3d 447, 450 (2d Cir.), cert. 2 denied, 525 U.S. 1048 (1998); United States v. Doe, 996 F.2d 606, 3 607 (2d Cir. 1993). 4 the authority to impose a given sentence--either as a Guidelines 5 departure or as a non-Guidelines sentence--is a question of law, 6 see, e.g., United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005) 7 (a 8 reviewable 9 misapprehended its departure authority); United States v. Belk, 346 10 F.3d 305, 314 (2d Cir. 2003), cert. denied, 540 U.S. 1205 (2004); 11 United 12 ("Rivers") ("A defendant may seek appellate review of a refusal to 13 depart downward if that refusal was based on the mistaken conclusion 14 that the court did not have the legal authority to depart."); United 15 States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir. 1990) ("court's 16 mistaken conception that it lacked the authority" to depart on a 17 given ground is "an error of law"). 18 existence of departure authority de novo. 19 v. Belk, 20 depart rested on a 'misapprehension' of its legal authority, an 21 appeal 22 determination de novo." (other internal quotation marks omitted)). 23 Likewise the matter of whether any statute deprives the sentencing 24 court of authority to impose a given sentence is a question of law 25 to be reviewed de novo. refusal to to States is However, the matter of whether the court has grant the v. a departure, extent that Rivers, 50 or the F.3d a greater sentencing 1126, 1130 departure, court (2d may Cir. is have 1995) We review the question of the See, e.g., United States 346 F.3d at 314 ("If the district court's refusal to proper, and we review - 21 - the propriety of that legal 1 B. 28 U.S.C. § 994 2 As discussed in Part I.B. above, the PSRs' Guidelines 3 calculations 4 imprisonment ranges of 262-327 months. 5 suggest that there was any error in these calculations or that the 6 district court misinterpreted the Guidelines. 7 that the court misapprehended its departure authority. 8 makes 9 Guidelines, after the Supreme Court's decision in Booker, are it for clear Sanchez that the and Keys district resulted in recommended Sanchez and Keys do not judge Rather, they contend The record understood that the 10 advisory 11 misimpression that her authority to grant a downward departure, or 12 a 13 recommended 14 eliminated by the Guidelines. 15 however, the judge indicated that she was deprived of the authority 16 to depart farther by 28 U.S.C. § 994(h). (See, e.g., Keys S.Tr. 13 17 ("[U]ltimately not 18 commission did for career offender[s] but what Congress did for 19 career offender[s] because there is a statutory provision that I 20 have to consider and apply as best I can."); id. at 48 (after 21 studying the statute, 235 months "is the best I can do in this 22 case"); Sanchez S.Tr. 23 ("If I were free to choose the sentence we 23 would be in an entirely different situation.").) 24 that follow, we conclude that the granting of a reasonable non- 25 Guidelines sentence or of a larger downward departure was not barred rather greater than departure range I of will mandatory, than she and granted, imprisonment have that for she from career was the under no Guidelines- offenders was In sentencing Sanchez and Keys, to decide - 22 - what the sentencing For the reasons 1 by § 994. 2 Section 994 was enacted as part of the Sentencing Reform 3 Act of 1984 (the "Act"), 18 U.S.C. § 3551 et seq.; 28 U.S.C. 4 §§ 991-998. 5 6 7 8 9 10 To the extent pertinent here, § 994(h) provides that [t]he Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and-(1) has been convicted of a felony that is-- 11 (A) a crime of violence; or 12 13 (B) an offense described 21 U.S.C. 841 . . . and 14 15 19 . . . (2) has previously been convicted of two or more prior felonies, each of which is-- 16 17 18 in (A) a crime of violence; or (B) an offense 21 U.S.C. 841 . . . . described in . . . 28 U.S.C. § 994(h). 20 The career-offender guideline, § 4B1.1, was promulgated by 21 the Sentencing Commission in response to this instruction. Thus, as 22 quoted in Part I.B. above, subsection (a) of that guideline defines 23 "career offender," in terms closely tracking the statutory language, 24 as a person who was at least 18 years of age when he committed the 25 current violent felony or drug trafficking felony and who had 26 previously been convicted of at least two prior violent or drug 27 trafficking felonies. 28 sentencing range at or near the statutory maximum for such a Guidelines § 4B1.1(a). - 23 - In order to assure a 1 defendant, subsection (b) provides that "[a] career offender's 2 criminal history category in every case under this subsection shall 3 be Category VI," which is the highest category, and it sets out a 4 table of offense levels to be applied "if the offense level for a 5 career offender from the table in this subsection is greater than 6 the offense level otherwise applicable," id. § 4B1.1(b). 7 subsection (b) table, the higher the statutory maximum prison term 8 for the offense of conviction, the higher the assigned offense 9 level. For example, assuming no reduction for Under the acceptance of 10 responsibility, the offense level for a career offender whose 11 offense carries a maximum prison term of 25 or more years is 34; 12 that offense level, combined with a CHC of VI, results in a 13 Guidelines-recommended range of imprisonment of 262-327 months, or 14 21.83 to 27.25 years. 15 offense carries a maximum prison term of life is 37; that offense 16 level, 17 recommended range of imprisonment of 360 months to life. 18 These guidelines reflect the instructions given by Congress in 19 28 U.S.C. § 994(h). combined with The offense level for a career offender whose a CHC of VI, results in a GuidelinesSee id. 20 Section 994(h), however, by its terms, is a direction to 21 the Sentencing Commission, not to the courts, and it finds no 22 express analog in Title 18 or Title 21. 23 expressly establishes the minimum and maximum prison terms that the 24 court is allowed to impose for violations of § 841(a), there is no 25 statutory provision instructing the court to sentence a career - 24 - While 21 U.S.C. § 841(b) 1 offender at or near the statutory maximum. And while the sentencing 2 statute expressly directs the district court to "consider" the 3 "sentencing range established for . . . the applicable category of 4 defendant 5 § 3553(a)(4)(A), it does not instruct the court to impose such a 6 sentence. See generally United States v. LaBonte, 520 U.S. 751, 761 7 n.5 (1997) (discussing § 994(h) and distinguishing that section from 8 18 U.S.C. § 5037(c)(1)(C) (establishing the maximum prison term that 9 "may be ordered for a . . . juvenile delinquent"), which "involved 10 a directive to a sentencing court, . . . whereas 28 U.S.C. § 994(h) 11 is a directive to the Commission."). as set forth in the guidelines," 18 U.S.C. 12 The absence of any express statutory instruction to the 13 court to sentence a career offender to a prison term at or near the 14 statutory maximum was not an oversight. 15 provisions to include in the sentencing statute itself, Congress 16 considered an amendment proposed by Senator Kennedy and others 17 ("Kennedy amendment") to S. 2572, 97th Cong. (1982), one of the 18 bills that was a precursor to the Act, which would have included 19 such a provision. 20 § 994(h), focused on persons (albeit on persons whose ages were at 21 least 16 rather than 18) who had been convicted of two prior violent 22 felonies or drug trafficking felonies. 23 included in the sentencing statute a section stating expressly that 24 "[a] career criminal" "shall receive the maximum," or approximately 25 the maximum, penalty for the current offense. 128 Cong. Rec. 26512, In deliberating on what The proposed Kennedy amendment, like 28 U.S.C. - 25 - That amendment would have 1 26518 (Sept. 30, 1982) (emphasis added). 2 No such provision was included in the legislation as 3 enacted. 4 Senate Judiciary Committee, see S. Rep. No. 98-225 (1983) ("Senate 5 Report" or "Report"), reprinted in 1984 U.S. Code Cong. & Admin. 6 News ("USCCAN") 3182, stated that the 7 8 9 10 11 Instead, the Act included § 994(h). The Report of the proposed 28 U.S.C. 994(h) requires the sentencing guidelines to specify a term of imprisonment at or near the statutory maximum for a third conviction of a felony that involves a crime of violence or drug trafficking, 12 Senate 13 explained that 14 15 16 17 18 19 20 21 22 23 24 25 26 Report at 120, reprinted in 1984 USCCAN at 3303, and [s]ubsection (h) was added to the bill in the 98th Congress to replace a provision proposed by Senator Kennedy enacted in S. 2572, as part of proposed 18 U.S.C. 3581, that would have mandated a sentencing judge to impose a sentence at or near the statutory maximum for repeat violent offenders and repeat drug offenders. The Committee believes that such a directive to the Sentencing Commission will be more effective; the guidelines development process can assure consistent and rational implementation of the Committee's view that substantial prison terms should be imposed on repeat violent offenders and repeat drug traffickers. 27 Senate Report at 175, reprinted in 1984 USCCAN at 3358 (emphases 28 added). 29 upper range of the maximum sentence for offenders who repeatedly 30 commit offenses," and that "the Sentencing Commission will be 31 promulgating guidelines that will recommend an appropriate sentence 32 for 33 particular category of offense . . . ." a The Report stated that "the guidelines would reserve the particular category of offender - 26 - who is convicted of a Senate Report at 114, 1 reprinted in 1984 USCCAN at 3297 (emphasis added). 2 Consistent with Congress's reference to "the guidelines 3 development process," Senate Report at 175, reprinted in 1984 USCCAN 4 at 3358, the commentary to the Guidelines notes that the Sentencing 5 Commission's views of what is an appropriate prison term for a 6 career offender are subject to revision "over time": 7 8 9 10 11 12 13 14 15 16 17 18 19 20 [T]he Commission has modified th[e] definition [of career offender] in several respects to focus more precisely on the class of recidivist offenders for whom a lengthy term of imprisonment is appropriate and to avoid "unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct . . . ." 28 U.S.C. § 991(b)(1)(B). The Commission's refinement of this definition over time is consistent with Congress's choice of a directive to the Commission rather than a mandatory minimum sentencing statute . . . . Guidelines § 4B1.1 Background (emphasis added). In sum, in light of the facts (1) that § 994(h)'s 21 instruction with reference to sentences at or near the statutory 22 maximum is directed to the Sentencing Commission, (2) that there is 23 no statutory provision instructing the courts to sentence a career 24 offender at or near the maximum, and (3) that Congress consciously 25 rejected a proposal "that would have mandated a sentencing judge" to 26 impose such a sentence, Senate Report at 175, reprinted in 1984 27 USCCAN at 3358, and instead instructed the Commission to promulgate 28 guidelines to "recommend" high sentences for career offenders, id. 29 at 114, reprinted in 1984 USCCAN at 3297, we conclude that Congress 30 did not intend § 994(h) to deprive the courts of authority to impose - 27 - 1 on a career offender a prison term that is not near the statutory 2 maximum. 3 This conclusion does not mean that we think a sentencing 4 court would be free to ignore the policy considerations reflected in 5 § 994(h). 6 take 7 determining the appropriate sentence in light of the sentencing 8 considerations set out in 18 U.S.C. § 3553(a). 9 C. The court should, as discussed in Part II.C.3. below, Congress's views on repeat offenders into account in 10 The Effect of § 994(h) in the Present Case On these appeals, the government, while describing 11 § 994(h) as "a provision that calls for career offenders to be 12 sentenced at or near the statutory maximum" (Government brief on 13 appeal at 31 (emphasis added)), has stopped short of arguing that 14 § 994(h) deprived the district court of authority to sentence a 15 career offender to a prison term below such a level. 16 government contends that the district court did not misapprehend its 17 sentencing authority, pointing out that in sentencing the then- 18 33-year-old Sanchez to 188 months and the then-34-year-old Keys to 19 235 months, the district court sentenced those two defendants "far 20 below the statutory maximum" (Government brief on appeal at 31 21 (emphasis added)), to terms that were closer to the statutory 22 minimum of 120 months than to the maximum of life (see, e.g., id. at 23 41). 24 Fox to the statutory minimum (see id. at 41)--a sentence that the Instead, the It also points out that the court in fact sentenced Raymond - 28 - 1 government has not cross-appealed to challenge. 2 argues 3 statements with respect to § 994(h), the court "clearly understood 4 its authority to impose the sentence that it deemed correct, in 5 light of all of the pertinent considerations" (id. at 45 n.*). instead that, notwithstanding several The government of the court's 6 In general, we are "entitled to assume that the sentencing 7 judge understood all the available sentencing options, including 8 whatever departure authority existed in the circumstances of the 9 case." Rivers, 50 F.3d at 1131. However, we are wary of making 10 such an assumption "where the judge's sentencing remarks create 11 ambiguity as to whether the judge correctly understood an available 12 [sentencing] option," and we are more inclined, in the face of such 13 ambiguity, to remand for clarification. 14 United States v. Clark, 128 F.3d 122, 124 (2d Cir. 1997). 15 not remand, however, if the record indicated clearly that the 16 district court would have imposed the same sentence had it had an 17 accurate understanding of its authority. 18 v. McHugh, 122 F.3d 153, 158 (2d Cir. 1997); id. at 159 (Newman, J., 19 concurring); United States v. Larson, 112 F.3d 600, 606 (2d Cir. 20 1997); see generally Williams v. United States, 503 U.S. 193, 203 21 (1992); Fed R. Crim. P. 52(a) (an error or irregularity that does 22 not affect a party's substantial rights "must be disregarded"). Id. at 1132; see, e.g., We would See, e.g., United States 23 In the present case, the record does not indicate that the 24 court understood, at the time it sentenced Sanchez and Keys, that 25 § 994(h) did not necessarily restrict its sentencing authority and - 29 - 1 does not make it clear that the court would have imposed the same 2 sentences if that section did not impose such a restriction. 3 1. Sanchez 4 Notwithstanding the fact that the district court sentenced 5 Sanchez 6 recommended by the advisory Guidelines, the transcript of his 7 sentencing leaves the strong impression that the district court 8 viewed § 994(h) as depriving it of authority to impose on Sanchez a 9 non-Guidelines sentence or a Guidelines-departure sentence at, or to 188 months, well below the 262-327-month range 10 near, the statutory minimum. 11 I.B.2. 12 departure request indicated its view that Sanchez "could be deterred 13 by even the mandatory minimum of ten years, which is a very 14 substantial number" (Sanchez S.Tr. 16); but the court stated that it 15 interpreted "Congress [as] enacting a statute . . . that provides 16 that 17 minimum." 18 it read § 994(h) as a mandatory provision, referring to it as "a 19 congressional enactment which directs." 20 went on to say, inter alia, that "Congress has provided that a 21 career offender . . . must be sentenced above the mandatory minimum" 22 (id. (emphasis added)); that "as I read the congressional statute a 23 career criminal may not be sentenced to the minimum" (id. at 19 24 (emphases added)); that it interpreted "at or near the maximum" to a above, career the court's criminal As set out in greater detail in Part early must be comments sentenced (Id. at 17 (emphases added)). - 30 - addressing above the Sanchez's mandatory The court indicated that (Id. at 18.) The court 1 mean "that Congress has provided that . . . career offender [status] 2 requires some time in addition to the mandatory minimum" (id. at 21- 3 22 (emphases added)); and that it felt that as a matter of law, 4 under § 994, it could not under any circumstances impose a sentence 5 that was the mandatory minimum for a career offender: 6 by the statute itself . . . . not to reduce a career criminal 7 sentence to the level of a mandatory minimum" (id. at 20 (emphases 8 added)). "I feel bound 9 To be sure, as the government notes, the district court 10 stated at one point that "in this particular case I am of the view 11 that even if I could I would not impose a sentence less than I have 12 determined" (id. at 21 (emphases added)); and thereafter the court 13 stated that it believed the prison term it was ordering for Sanchez 14 was "an appropriate sentence for this defendant" (id. at 24). 15 However, shortly before characterizing a 188-month prison term for 16 Sanchez as appropriate, the court had said "[i]f I were free to 17 choose the sentence we would be in an entirely different situation" 18 (id. at 23); and immediately after characterizing the 188-month 19 sentence 20 constrained by the statute. 21 24 (emphasis added)). 22 think you have made it perfectly clear that if you could you might 23 impose a lesser sentence," the court said "[t]hat is correct." (Id. 24 at 24-25 (emphasis added).) 25 as appropriate, the court added, "[b]ut I do feel I think that is pretty clear" (id. at Finally, when Sanchez's attorney said "I The record thus seems clear that the district court - 31 - 1 believed that § 994(h) deprived it of authority to grant Sanchez a 2 non-Guidelines sentence or a downward departure below the 188-month 3 prison term that the court imposed. 4 sentence would have been imposed if the court had believed that 5 § 994 did not deprive it of that authority, the court's statements-- 6 e.g., that it would not have imposed a lower sentence on Sanchez 7 "even if [it] could," and that it might impose a lower sentence "if 8 [it] could"--reflect considerable ambiguity. And as to whether the same 9 In these circumstances, we consider it appropriate to 10 remand the Sanchez matter to the district court for clarification. 11 See Part II.C.3. below. 12 2. Keys 13 The transcript of Keys's sentencing to a 235-month prison 14 term, although it contains fewer conflicting statements, similarly 15 leaves us in doubt as to whether the district court meant that even 16 if § 994(h) did not limit its sentencing authority, Keys would still 17 have received a 235-month prison term. 18 one day before the sentencing of Sanchez, the statements of the 19 district court reflected the court's understanding--and apparently 20 the then-understanding of the government--that § 994 required that 21 a career offender receive a prison term at or near the statutory 22 maximum. 23 departure to the statutory minimum, the court stated, "I think 24 because of the career offender statute," the prison term to be At the sentencing of Keys, Thus, early in the discussion of Keys's request for a - 32 - 1 imposed on Keys "will certainly have to be more than" the statutory 2 "minimum of ten years." 3 that § 994(h) required that the prison term for a career offender be 4 "more than above the minimum," the AUSA added, "[n]ear the maximum." 5 (Id. 6 statutory language makes clear" that Keys, as a career offender, 7 "will go to prison for more than the mandatory minimum, under all 8 circumstances that I can see here; that is, I have carefully 9 considered enough to know that. 10 at problem." 18 (emphases (Keys S.Tr. 14.) added).) The And when the court stated court stated that "[t]he How much more is really my (Id. at 18-19.) 11 After determining that if it assigned Keys a CHC of V 12 rather than VI the Guidelines-recommended range of imprisonment 13 would be 235-293 months, the court said, "I think that in this case 14 235 is the appropriate number" (id. at 32 (emphasis added)). 15 when 16 overstatement" (id.), the court stated that the "real problem" was 17 that "[t]he career offender statute I read as itself placing a 18 substantial limit on the appropriate sentence under that statute" 19 (id. at 35 (emphasis added)). 20 the court stated: 21 22 23 24 25 26 27 28 Keys's attorney argued that 235 months was "still But an After sentencing Keys to 235 months, It is really under the statute on career offender[s] that I feel bound to carry out the intention of Congress as expressed in that statute, to impose a substantially heavier sentence on a career offender, and I do so with that understanding. . . . I have studied that statute over and over in an effort to discern the intention of Congress, and that is the best I can do in this case. - 33 - 1 (Id. at 47-48 (emphases added).) 2 It appears from the above statements that the district 3 court may have believed that § 994(h) limited its authority to 4 impose a sentence below 235 months' imprisonment; and although the 5 court had carefully considered the circumstances relating to Keys, 6 it is unclear to us whether the court's statements meant that the 7 court would have sentenced Keys to the same prison term in the 8 absence of the perceived limitation. 9 including the court's statements that "235 is the appropriate 10 number" (Keys S.Tr. 32), but that it read the "career offender 11 statute 12 appropriate sentence" (id. at 35), as well as the government's own 13 stance at the Keys hearing that § 994(h) required Keys to be 14 sentenced "[n]ear the maximum" (id. at 18), we conclude that a 15 remand for clarification with respect to Keys is prudent as well. . . . as itself placing a In all the circumstances, substantial limit on the 16 We note that the district court sentenced Raymond Fox to 17 the statutory minimum prison term applicable to him, i.e., 240 18 months, and the government would have us infer from that fact that 19 the court was aware that § 994(h) did not require it to sentence 20 Sanchez and Keys above the 120-month mandatory minimum that was 21 applicable to them (Government brief on appeal at 41). 22 inference is impermissible in light of the court's statements some 23 five weeks earlier in the course of sentencing Sanchez and Keys. 24 3. Proceedings on Remand - 34 - Such an 1 Our holding that § 994(h) does not make it mandatory for 2 a sentencing court to sentence a career offender to a prison term at 3 or near the statutory maximum does not, of course, mean that the 4 court would be free to ignore the Congressional policy reflected in 5 that section. 6 court 7 'respectful consideration to the Guidelines,'" Kimbrough v. United 8 States, 128 S. Ct. 558, 570 (2007). "We may find a sentence unreasonable if the district ignores congressional policies or if it fails to give 9 As the district court in this case observed, § 994(h) 10 reflects Congress's policy judgment that violent felonies and drug 11 trafficking felonies generally warrant more severe sentences when 12 committed by recidivists than when committed by first- or second- 13 time offenders. 14 376 n.10 (1989) (the legislative "history indicates Congress' intent 15 that the 'criminal history . . . factor include[] . . . whether the 16 defendant is a "career criminal."'" 17 reprinted in 1984 USCCAN at 3357). 18 judgment, and the resulting definition of career offenders, must be 19 taken into account in connection with several of the sentencing 20 factors set out in 18 U.S.C. § 3553(a). 21 See also Mistretta v. United States, 488 U.S. 361, Section 3553(a) (quoting Senate Report at 174, requires That Congressional policy that the history and 22 characteristics 23 requires, as discussed in Part II.A. above, that the court consider 24 the range of imprisonment recommended by the advisory Guidelines, 25 including the "applicable category of offense committed by the of the defendant - 35 - be considered. But it also 1 applicable category of defendant," 18 U.S.C. § 3553(a)(4)(A). 2 the career-offender guideline, § 4B1.1, reflects the instructions 3 given to the Commission in 28 U.S.C. § 994(h) to assure that the 4 Guidelines prescribe severe penalties for career offenders, the 5 court is required--whether it decides to impose a Guidelines or a 6 non-Guidelines sentence--to consider the recommended penalties. As 7 In addition, as pointed out in the Sentencing Commission's 8 introductory comments to Chapter Four of the Guidelines, which 9 includes the career-offender guideline, "[a] defendant's record of 10 past criminal conduct is directly relevant" to several of the 11 purposes of sentencing set out in § 3553(a)(2), including just 12 punishment, deterrence, and protection of the public from further 13 crimes of the defendant: 14 15 16 17 18 19 20 21 22 23 24 25 A defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment. General deterrence of criminal conduct dictates that a clear message be sent to society that repeated criminal behavior will aggravate the need for punishment with each recurrence. To protect the public from further crimes of the particular defendant, the likelihood of recidivism and future criminal behavior must be considered. Repeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation. 26 Guidelines Ch. 4, Pt. A, Introductory Commentary. At the same time, 27 as the district court here noted, the sentencing court must consider 28 other factors set out in § 3553(a), including the need for the 29 sentence imposed "to avoid unwarranted sentence disparities among 30 defendants with similar records who have been found guilty of - 36 - 1 similar conduct," 18 U.S.C. § 3553(a)(6). 2 In sum, the policy concerns reflected in § 994(h) are 3 relevant to several of the sentencing factors that the court must 4 consider in complying with § 3553(a). Although Congress declined to 5 adopt a statutory provision making it mandatory for the courts to 6 sentence career offenders at or near the statutory maximum, it 7 enacted 8 sentences for that category of defendants, and that guidance, as 9 part of the § 3553(a) analysis, must be taken into account. § 994(h) to require the Commission to recommend such 10 In the present case, of course, as described in Parts 11 I.B.1. and I.B.2. above, there was no failure by the district court 12 to consider the Congressional policy, and the court took great pains 13 not to substitute its judgment for that of Congress. The difficulty 14 we have on these appeals is that, as discussed in Parts II.C.1. and 15 II.C.2. 16 statements indicating its belief that § 994(h) restrained it from 17 imposing shorter sentences than it did and also stated at times that 18 the sentences imposed were appropriate. 19 uncertain as to whether the district court meant that the sentences 20 imposed on these defendants were appropriate within the perceived 21 restraint of § 994(h) or were the same sentences that would have 22 been imposed if § 994(h) did not deprive it of the authority to 23 impose lower sentences. Accordingly, without vacating the sentences 24 imposed on Sanchez and Keys, we remand as to those two defendants in 25 order to permit the district court to clarify the record as to the above, in sentencing Sanchez - 37 - and Keys the court made The record thus leaves us 1 meaning of its statements. 2 On remand, the district court's first step should be to 3 provide the necessary clarifications. 4 filing brief written statements or placing explanations on the 5 record. 6 presence is not required for the initial step at which the court 7 issues its clarification. 8 120. This may be done either by See, e.g., Rivers 50 F.3d at 1132. The defendant's See generally id.; Crosby 397 F.3d at 9 If, as to either defendant, the clarification reveals that 10 the court meant that it would have imposed the same sentence if it 11 understood that § 994(h) did not deprive it of the authority to 12 impose a shorter prison term than it did, then as to that defendant, 13 the district court should not disturb the sentence imposed, and-- 14 except as indicated in Part II.E. below--it need take no further 15 action. 16 Rivers, 50 F.3d at 1132. See, e.g., Crosby, 397 F.3d at 120, Clark, 128 F.3d at 124; 17 If as to either Sanchez or Keys the court clarifies that 18 its determination of the prison term imposed on that defendant was 19 affected by its view that § 994(h) deprived it of the authority to 20 impose a lower sentence, the court should exercise its discretion to 21 consider a lower sentence, either as a Guidelines departure or as a 22 non-Guidelines sentence. In this event, the court should vacate the 23 sentence and, with the relevant defendant present, resentence the 24 defendant in accordance with § 3553 and this opinion, giving an 25 appropriate explanation of its decision. - 38 - 1 Because a remand is warranted for clarification of whether 2 the district court meant that it would have imposed the same 3 sentences with the correct understanding of § 994(h), we have no 4 occasion to consider at this time Keys's additional contentions that 5 the district court failed to consider the § 3553(a) 6 that his sentence is unreasonably long. See, e.g., United States v. 7 Ortega, 94 F.3d 764, 771 (2d Cir. 1996). 8 D. factors and Raymond Fox's Constitutional Contentions 9 In general, the term of imprisonment for a person 10 convicted of violating 21 U.S.C. § 841(a)(1) by trafficking in the 11 quantities of cocaine and crack charged in the present case is "not 12 [to] 13 § 841(b)(1)(A). 14 are aggravating circumstances. 15 penalty section provides that "[i]f any person commits such a 16 violation after a prior conviction for a felony drug offense has 17 become 18 imprisonment which may not be less than 20 years and not more than 19 life imprisonment . . . ." 20 Title 21 provides, in pertinent part, that 21 22 23 24 25 26 27 be less final, than 10 years or more than life." 21 U.S.C. Longer minimum prison terms are provided if there such person To the extent pertinent here, that shall be sentenced Id. (emphasis added). to a term Section 851 of [n]o person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in - 39 - of 1 writing the previous convictions to be relied upon. 2 Id. § 851(a)(1). 3 government filed a § 851 Information against Raymond Fox prior to 4 the entry of his plea of guilty; and after accepting that plea, the 5 district court imposed on him the statutory minimum prison term of 6 20 years. 7 As indicated in Parts I.A. and I.B.3. above, the Raymond challenges the constitutionality of § 851 and of 8 its application to him. 9 States Attorney, in his sole discretion, to file an information that 10 substantially raises the minimum mandatory term of imprisonment to 11 which a defendant is exposed, § 851 impermissibly transfers power 12 over sentencing from the Judicial Branch to the Executive Branch. 13 In any event, he contends that the government, in filing a § 851 14 Information only against him and not against any of his codefendants 15 without any explanation, violated his right to due process. Neither 16 contention has merit. 17 1. 18 19 20 21 22 He contends that in allowing a United The Alleged Transfer of Power Historically, federal sentencing--the function of determining the scope and extent of punishment-never has been thought to be assigned by the Constitution to the exclusive jurisdiction of any one of the three Branches of Government. 23 Mistretta, 488 U.S. at 364. 24 responsibility among the Branches of Government and has never been 25 thought of as the exclusive constitutional province of any one 26 Branch." It "long has been a peculiarly shared Id. at 390; see also United States v. Huerta, 878 F.2d 89, - 40 - 1 91 (2d Cir. 1989), cert. denied, 493 U.S. 1046 (1990). 2 "It is well established that the decision as to what 3 federal charges to bring against any given suspect is within the 4 province of the Executive Branch of the government." 5 v. Bonnet-Grullon, 212 F.3d 692, 701 (2d Cir.), cert. denied, 531 6 U.S. 911 (2000). 7 8 9 10 11 12 13 14 15 16 United States The Attorney General and United States Attorneys retain "'broad discretion'" to enforce the Nation's criminal laws. Wayte v. United States, 470 U.S. 598, 607 (1985) (quoting United States v. Goodwin, 457 U.S. 368, 380, n. 11 (1982)). They have this latitude because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to "take Care that the Laws be faithfully executed." U.S. Const., Art. II, § 3; see 28 U.S.C. §§ 516, 547. 17 United States v. Armstrong, 517 U.S. 456, 464 (1996). The Executive 18 Branch thus has the exclusive authority not only to decide whether 19 to prosecute, but also to decide which of alternative statutory 20 sections, 21 defendant will be charged with violating. 22 v. Bonnet-Grullon, 212 F.3d at 701; United States v. Huerta, 878 23 F.2d at 92. which may carry penalties of varying severity, the See, e.g., United States 24 Section 851 is a provision that requires, if the United 25 States Attorney intends to seek enhanced penalties based on the 26 defendant's prior criminal record, that prior to the start of trial 27 or the entry of a plea of guilty, the defendant be given notice of 28 that intent. 29 to give such notice is simply a facet of the above prosecutorial The fact that it is the prosecutor who decides whether - 41 - 1 authority: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Insofar as prosecutors, as a practical matter, may be able to determine whether a particular defendant will be subject to the enhanced statutory maximum, any such discretion would be similar to the discretion a prosecutor exercises when he decides what, if any, charges to bring against a criminal suspect. Such discretion is an integral feature of the criminal justice system, and is appropriate, so long as it is not based upon improper factors. See United States v. Armstrong, 517 U.S. 456, 464-465 (1996); Wayte v. United States, 470 U.S. 598, 607 (1985). Any disparity in the maximum statutory penalties between defendants who do and those who do not receive the notice is a foreseeable--but hardly improper--consequence of the statutory notice requirement. 18 LaBonte, 19 prosecutors some degree of control over a defendant's ultimate 20 sentence, it does not violate the principle of separation of powers. 21 2. 520 U.S. at 762. Although this discretion gives The Alleged Violation of Due Process 22 Raymond also contends that the government's filing of the 23 § 851 Information against him violated his right to due process 24 because the government gave no explanation for filing such an 25 information against him but against none of his codefendants. Given 26 that Raymond has offered no basis for suspecting that the government 27 had any improper motive, we reject this argument as well. 28 Prosecutorial discretion "is, of course, subject to 29 constitutional constraints," United States v. Batchelder, 442 U.S. 30 114, 125 (1979); the decision whether to prosecute may not be based 31 on "an unjustifiable standard such as race, religion, or other - 42 - 1 arbitrary classification," Oyler v. Boles, 368 U.S. 448, 456 (1962); 2 see also Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). 3 because the United States Attorneys are charged with taking care 4 that the laws are faithfully executed, there is a "presumption of 5 regularity support[ing] their prosecutorial decisions and, in the 6 absence of clear evidence to the contrary, courts presume that they 7 have properly discharged their official duties." 8 U.S. at 464 (internal quotation marks omitted); see also Oyler, 368 9 U.S. at 456 (Mere "conscious exercise of However, Armstrong, 517 some selectivity in 10 enforcement is not in itself a federal constitutional violation."). 11 Generalized allegations of improper motive do not disturb 12 the presumption of regularity. 13 government's reasons for pressing a charge against one person rather 14 than another, a defendant must present at least "some evidence" to 15 show not only that he was singled out but also that he was singled 16 out for reasons that are "invidious or in bad faith." 17 v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974) (internal quotation 18 marks omitted); cf. Wade v. United States, 504 U.S. 181, 186 (1992) 19 ("generalized 20 failure to move for a downward departure rewarding a defendant's 21 substantial assistance to the government do not entitle a defendant 22 to a remedy, discovery, or an evidentiary hearing). 23 allegations of To warrant discovery into the improper motive" for United States government's In the present case, Raymond has made no allegations of 24 impropriety. 25 explanation for filing the § 851 Information against him. Given the He simply complains that the government gave no - 43 - 1 presumption of regularity and the absence of any proffer by Raymond 2 as to a motive that might have been improper, no explanation by the 3 government was required. 4 E. Clerical Corrections to Three of the Judgments 5 Finally, we note that the written judgments against 6 Sanchez, Keys, and Daryl Fox, all dated July 5, 2005, are not wholly 7 accurate in reflecting those defendants' offenses of conviction. 8 With respect to Sanchez, whose plea of guilty was limited (and 9 accepted as limited) to so much of counts one and two as alleged 10 trafficking 11 misdescribes his offense of conviction on count one as "Conspiracy 12 to Distribute and Possess with Intent to Distribute and [sic] 13 Cocaine Base." 14 not exclude cocaine base (indeed, at the sentencing stage, Daryl 15 stated that he "wanted to get the crack cocaine stricken from [his 16 plea 17 conviction on count two as "Distribution and Possession with Intent 18 to Distribute Cocaine," but omit mention of cocaine base. 19 judgments 20 identifying the offenses of conviction. 21 22 of in cocaine but not in cocaine base, the judgment As to Keys and Daryl Fox, whose pleas of guilty did guilty]"), should be the judgments entered in describe the their district offenses court, of Amended correctly CONCLUSION For the reasons stated above, and subject to the required - 44 - 1 clerical 2 dismissed pursuant to Anders v. California; the Sanchez and Keys 3 matters are remanded to the district court for clarification, and, 4 if necessary, for further proceedings; and the judgment against 5 Raymond Fox is affirmed. corrections noted above, the appeal of Daryl Fox is 6 Following the proceedings described in Part II.C.3. of 7 this opinion and the entry of final decisions by the district court, 8 the jurisdiction of this Court to consider a subsequent appeal may 9 be invoked by any affected party by notification to the Clerk within 10 10 days of the pertinent final decision, see United States v. 11 Jacobson, 15 F.3d 19 (2d Cir. 1994), in which event the renewed 12 appeal will be assigned to this panel. - 45 -
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