Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. SHEPPARD

February 24, 1995

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SCOTT D. SHEPPARD, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

We deal here with Amendment 506 to the Sentencing Guidelines Commentary to U.S.S.G. § 4B1.1.

Defendant has filed a Pro se Motion For Resentencing pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 506.

I. BACKGROUND

This Court sentenced Scott Sheppard to 294 months in prison after he pled guilty to conspiracy to distribute cocaine base (21 U.S.C. § 846) and distribution of cocaine base (21 U.S.C. § 841(a)). The sentence was calculated based on an offense level of 34 and a criminal history category of VI which resulted in a range of 262 to 327 months.

Sheppard's criminal history level is VI because he is a "career offender" under U.S.S.G. § 4B1.1. Moreover, because he had committed a prior drug offense, 21 U.S.C. § 841(b)(1)(C) is applicable and the maximum possible penalty is increased from twenty years to thirty years. On appeal, Sheppard unsuccessfully argued that applying both § 4B1.1 and 21 U.S.C. § 841(b)(1)(C) based on the same prior convictions constituted an improper double enhancement. United States v. Sheppard, 33 F.3d 56 (7th Cir. 1994).

Nevertheless, the Sentencing Commission was troubled by the interplay between § 4B1.1 and 21 U.S.C. § 841(b)(1)(C). Thus, effective November 1, 1994, commentary to § 4B1.1 was amended to prevent the double enhancement. U.S.S.G.Amend. 506. Amendment 506 changes the definition of "Offense Statutory Maximum" to include the language "not including any increase in that maximum term under a sentencing enhancement provision that applies because of the defendant's prior criminal record."*fn1 Id.

According to the official explanation of Amendment 506, "[t]his amendment defines the term `offense statutory maximum' in § 4B1.1 to mean the statutory maximum prior to any enhancement based on prior criminal record. . . . [The amendment] avoids unwarranted double counting as well as unwarranted disparity associated with variations in the exercise of prosecutorial discretion in seeking enhanced penalties based on prior convictions." U.S.S.G. Amend. 506, cmt. (backg'd).

The Government concedes that if it is applicable, Amendment 506 should be applied retroactively to Defendant Sheppard. See Stinson v. United States, ___ U.S. ___, ___, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993) ("Amended commentary is binding on the federal courts even though it is not reviewed by Congress, and prior judicial constructions of a particular guideline cannot prevent the Commission from adopting a conflicting interpretation.").

II. ANALYSIS

A. Plain Meaning

Whether Amendment 506 should be given binding effect is an issue of first impression. Thus, the Court is guided by principles of statutory construction and the first and "large-bore howitzer" of statutory construction is that a court must apply the plain meaning of a statute as written. Matter of Udell, 18 F.3d 403, 410 n. 1 (7th Cir. 1994) (Flaum, J., concurring). See Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then this first canon is also the last: `judicial inquiry is complete.'") (citations omitted).

The meaning of 28 U.S.C. § 994(h) is clear on its face. See United States v. Saunders, 973 F.2d 1354, 1365 (7th Cir. 1992). It specifically directs the Commission that it "shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized. . . ." (emphasis added). Therefore, because 21 U.S.C. § 841(b)(1)(C) unambiguously states that a person convicted of an applicable drug offense after having previously been convicted of one or more applicable drug offenses "shall be sentenced to a term of imprisonment of not more than 30 years," Amendment 506 is clearly inconsistent with 28 U.S.C. § 994(h). ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.