Appeal from the United States District Court for the Western District of Wisconsin. No. 89 CR 67--John C. Shabaz, Chief Judge. *fn*
Appeal from the United States District Court for the Southern District of Illinois. No. 94 CR 30099-William L. Beatty, Judge.
Before CUMMINGS, BAUER, and ROVNER, Circuit Judges.
These consolidated appeals present a question of first impression in this circuit. Congress has directed the Sentencing Commission to assure that the Sentencing Guidelines specify a sentence of imprisonment "at or near the maximum term authorized" for an adult defendant convicted of a violent crime or felony drug offense and who has at least two prior such convictions. 28 U.S.C. sec. 994(h). The question is whether by "maximum term authorized" Congress meant the maximum term available for the offense of conviction, excluding any statutory sentencing enhancements based on the defendant's prior convictions, or instead the maximum term available once such enhancements are taken into consideration. In commentary that took effect late in 1994, the Commission indicated that the maximum term should be calculated based on the offense of conviction alone, without taking into account enhancements based on the defendant's criminal history. United States Sentencing Commission, Guidelines Manual, sec. 4B1.1 comment. (n.2) (Nov. 1995); U.S.S.G. App. C, Amendment 506 (Nov. 1, 1994). Based on the plain language of the statute, we find the commentary to be inconsistent with congressional intent. *fn**
E. Hernandez *fn1 pled guilty on August 11, 1989, to an indictment charging him with conspiring to possess cocaine with the intent to distribute, in violation of 21 U.S.C. sec. 846. Prior to the plea, in conformity with 21 U.S.C. sec. 851(a)(1), the government filed a notice of its intent to seek the enhanced penalty applicable to repeat drug offenders set forth in sec. 841(b)(1)(B), based on Hernandez's 1985 conviction for the possession of marijuana with the intent to deliver.
The Presentence Report (PSR) revealed a criminal history that included not only the conviction referenced in the section 851(a) notice, but a 1986 conviction for armed robbery. Hernandez thus had a prior conviction for a crime of violence as well as a felony drug conviction, bringing into play the career offender provision of the Sentencing Guidelines, sec. 4B1.1. *fn2 That guideline specifies an offense level based on the "offense statutory maximum," defined conclusorily prior to the amendment we consider in this appeal as "the maximum term of imprisonment authorized for the offense of conviction that is a crime of violence or a controlled substance offense." sec. 4B1.1, comment. (n.2) (Nov. 1989); U.S.S.G. App. C, Amendment 267 (Nov. 1, 1989). Section 841(b)(1)(B)(ii) provides for a five to forty year term of imprisonment for anyone who conspires to distribute in excess of 500 grams of cocaine; but the range increases to ten years to life for anyone who does so having previously been convicted of a felony drug offense. In calculating Hernandez's offense level, the probation officer referred to the enhanced maximum (life imprisonment) in choosing the appropriate offense level under the career offender guideline. This resulted in an offense level of 37 and a corresponding sentencing range of 360 months to life. *fn3 Hernandez objected to the probation officer's methodology, arguing that the maximum term authorized for purposes of Guidelines section 4B1.1 should be determined without reference to any enhancement triggered by his prior convictions (in particular the one referenced in the government's section 851(a) notice). Here, that would have been forty years. Had the probation officer used that maximum, the resulting offense level under section 4B1.1 would have been 34, with a corresponding sentencing range of 262 to 327 months. Judge Shabaz overruled Hernandez's objection, however, and adopted the offense level of 37 specified in the PSR.
In recognition of Hernandez's cooperation and assistance, the government filed a motion requesting a downward departure from the sentencing range pursuant to Guidelines sec. 5K1.1. Judge Shabaz denied the motion but, in acknowledgement of Hernandez's cooperation, sentenced Hernandez at the bottom of the sentencing range, 360 months. Subsequently, the government filed a sealed motion asking the court to reduce Hernandez's sentence pursuant to Fed. R. Crim. P. 35(b). Judge Shabaz granted a reduction of five years in October 1990 after a closed hearing.
Four years later, in November 1994, Amendment 506 to the Guidelines took effect. That amendment, which we discuss in greater detail below, deemed the "offense statutory maximum" for purposes of section 4B1.1 to be the maximum statutory term authorized by the offense of conviction, without reference to any statutory enhancements based on prior offenses. Because the Sentencing Commission elected to give the amendment retroactive effect, defendants for whom application of the amendment would result in a lower sentencing range are authorized pursuant to 18 U.S.C. sec. 3582(c)(2) to seek a reduction in their sentences. Guidelines Manual sec. 1B1.10 (Nov. 1995); see United States v. Jones, 55 F.3d 289, 296 (7th Cir.), cert. denied, 116 S. Ct. 161 (1995).
On December 5, 1994, Hernandez moved pro se to modify his sentence based on the amendment. (Hernandez hoped that the district court would reduce his offense level to 34, re-sentence him at the bottom of the corresponding sentencing range of 262-327 months, and decrease that sentence further by means of the five-year reduction granted previously to a sentence of 202 months.) Judge Shabaz denied the motion, concluding that the Commission's amendment was not binding. To calculate the maximum term authorized for purposes of the career offender enhancement without taking into account increases in the statutory maximum occasioned by the defendant's prior convictions "would be significantly less than the statutory maximum which would frustrate the intent of 28 U.S.C. sec. 994(h)," he reasoned. United States v. Hernandez, No. 89 CR 67, Mem. Op. and Order at 4 (W.D. Wis. Jan. 5, 1995).
On October 6, 1994, Sylvester Britt was arrested in East St. Louis, Illinois in possession of a small quantity of heroin and a .32 caliber revolver. He waived indictment and pled guilty to a two-count information charging him with possessing heroin with the intent to distribute, in violation of 21 U.S.C. sec. 841(a)(1), and being a felon in possession of a firearm, in violation of 18 U.S.C. sec. 922(g). Pursuant to 21 U.S.C. sec. 851(a), a separate information alleged that Britt had previously been convicted of two felony drug offenses. That boosted the maximum statutory term of authorized imprisonment from twenty to thirty years. sec. 841(b)(1)(C).
Britt's criminal history of course triggered the career offender provision of the Guidelines. However, in light of Amendment 506, the probation officer in calculating the "maximum term authorized" for purposes of section 4B1.1 disregarded the boost in the statutorily authorized term of imprisonment and initially set the offense level at 32. With a three-level decrease for acceptance of responsibility reducing the offense level to 29, the resulting sentencing range proposed in the PSR was 151 to 188 months.
The government objected to the PSR, arguing that application of Amendment 506 would thwart congressional intent that career offenders be sentenced close to the maximum term authorized for the offense of conviction once prior convictions were taken into account, an intent acknowledged in court decisions pre-dating the Commission's amendment. Judge Beatty agreed, concluding that the Commission apparently had chosen to "fly in the face" of these decisions by interpreting the statute differently. United States v. Britt, No. 94-30099, Sentencing Tr. at 13 (C.D. Ill. Jan. 17, 1995). Judge Beatty thus deemed the amendment inapplicable to cases in which the government had chosen to invoke the enhanced penalties provided for in section 841. Id. at 14. He accordingly recalculated the offense level under section 4B1.1, referencing the enhanced statutory maximum of thirty years applicable in view of Britt's prior drug convictions. The recalculation resulted in a two-level increase in the adjusted offense level, to 31, with a corresponding sentencing range of 188 to 235 months. Judge Beatty then sentenced Britt, who was just shy of sixty-four years old, to the minimum term of 188 months.
The question these appeals pose is whether the Sentencing Commission's recently adopted commentary defining the "offense statutory maximum" for purposes of the career offender enhancement is consistent with the terms of 28 U.S.C. sec. 994(h). Both district courts below concluded that it is not. As this involves a question of law, our review is de novo. See United States v. Neal, 46 F.3d 1405, 1407 (7th Cir. 1995) (en banc), aff'd, 116 S. Ct. 763 (1996).
The 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 [has been convicted of a felony that is either a violent crime or a specified controlled substance offense and has at least two such prior convictions].
The Sentencing Commission implemented this directive through the career offender guideline, section 4B1.1. See U.S.S.G. sec. 4B1.1, comment. (backg'd). Consistent with the statute, the ...