USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________

No. 95-1538
UNITED STATES OF AMERICA,
Appellant,

v.

GEORGE LABONTE,
Defendant, Appellee.
____________________

No. 95-1226
UNITED STATES OF AMERICA,
Appellee,

v.

DAVID E. PIPER,
Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

___________________
____________________

No. 95-1101
UNITED STATES OF AMERICA,
Appellee,

v.

ALFRED LAWRENCE HUNNEWELL,

Defendant, Appellant.
____________________

No. 95-1264
STEPHEN DYER,
Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Stahl,

Circuit Judges.
______________

____________________

Margaret D. McGaughey,
______________________
with whom Jay P. McCloskey,
________________
Chapman
_______

and

Assistant

United States

Attorney,

United States Attorney, Jonathan R.

____________

George
T. Dilworth,
_____________________

Assistant

United

States

Attorneys, were on brief, for the United States.

John A. Ciraldo,
________________

with whom

Perkins, Thompson, Hinckley &

______________________________

Keddy, P.A. was on brief, for George LaBonte.

___________
Peter Clifford for David E. Piper.
______________

Michael C. Bourbeau, with whom Bourbeau and Bourbeau was on

____________________
_____________________
brief, for Alfred Lawrence Hunnewell.

Cloud H. Miller, with whom Stephen Dyer was on brief pro se,
_______________
____________
for Stephen Dyer.

_________________________

December 6, 1995

_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________

debate, Congress passed

L. 98-473, tit. II,

amended

at

scattered

After many

years of study

the Sentencing Reform Act

of 1984, Pub.

212(a), 98 Stat. 1837 (1984) (codified

sections

of

18

&

legislation took effect on November 1, 1987,

28

and

U.S.C.).

as

The

and caused dramatic

changes both in the methodology of criminal sentencing and in the

outcomes

produced.

These

changes

did

not

go

unremarked:

sentencing appeals,

commonplace.

flood

once rare in federal

Predictably, the

of judicial

application of

tidal wave

opinions distilling

a seemingly

criminal cases, became

of appeals

the meaning,

boundless sea of

statements, notes, and commentary.

loosed a

scope, and

guidelines, policy

And whenever it appeared that

the flood waters might recede, the Sentencing Commission launched

fresh deluge of revisions

that required the

courts to paddle

even faster in a Sisyphean effort to stay afloat.

These four

consolidated appeals are emblematic

of the

difficulties

that courts face in dealing with the new sentencing

regime.

four appeals

All

Career Offender

implicate Application Note

Guideline, as modified by

2 to

the

Amendment 506, United

States Sentencing Commission, Guidelines Manual

_________________

4B1.1, comment.

(n.2) (Nov. 1994).

of

Amendment

underlying

506,

these

No appellate court has addressed the validity

and,

in

appeals,

the

two

able

diametrically opposite conclusions.

we

quartet

of

district

criminal

judges

cases

reached

Although the call is close,

hold that Amendment 506 is a reasonable implementation of the

statutory

mandate, 28 U.S.C.

994(h) (1988 & Supp. V 1993), and

is therefore

valid.

Thus, after answering

questions raised by the various

in

the LaBonte
_______

Hunnewell
_________

and

case

parties, we affirm the judgments

Piper cases;
_____

and

remand

vacate

for

appropriateness of resentencing; affirm

case in

the

respect to

other case-specific

the judgment

reconsideration

of

that

the

of

the

the judgment in the Dyer

____

all non-sentence-related matters

sentence-related aspect

in

judgment,

and vacate

remanding

for

reconsideration.

I.
I.

THE AMENDMENT
THE AMENDMENT

Congress created the

design

and

implement

principal forces

federal

Sentencing Commission in 1984

sentencing

propelled the legislation:

guidelines.

to

Three

Congress sought to

establish truth in sentencing by eliminating parole, to guarantee

uniformity in sentencing for

similarly situated defendants,

to ensure that the punishment fit the crime.

pt. A(3), &

2; see also
___ ____

762-63 (1st Cir.

the Sentencing

United States v.
_____________

See U.S.S.G. ch. 1,

___

Unger, 915 F.2d

_____

1990) (explaining that the primary

Reform Act are to

and

759,

purposes of

provide certainty, uniformity,

and fairness in sentencing), cert. denied, 498 U.S. 1104

_____ ______

(1991).

In addition to general

991(b),

guidance, see, e.g., 28 U.S.C.

___ ____

Congress also gave the Commission some specific marching orders.

One

U.S.C.

such

set of

marching

orders is

conveyed

994(h), which provides in part:

The

Commission

guidelines specify
imprisonment

at or

shall

assure that

a sentence
near

the

to a term
maximum

the
of
term

by 28

authorized

for

categories of

defendants in

which the defendant is eighteen years old

older and

[has been

convicted of

or

a violent

crime or felony drug offense and has at least

two such prior convictions].

The

Commission

Offender

This

implemented section

Guideline.

guideline sets

See U.S.S.G.
___

forth

a table

994(h)

through the

4B1.1,

comment. (backg'd).

of

enhanced total

Career

offense

levels (TOLs)

Maximum"

called

said

to

to be a function of the

be employed

in calculating the

"career offenders."

See U.S.S.G.
___

regarded as a career offender

old at the time of

sentences of

4B1.1.

the offense of conviction, that offense

for drug felonies or

see also United States v.

___ ____ _____________

so-

A defendant is

if he was at least eighteen

crime of violence or a drug-related

convictions

"Offense Statutory

years

is a

felony, and he has two prior

crimes of violence.

See id.;
___ ___

Piper, 35 F.3d 611, 613 n.1

_____

(1st Cir.

1994), cert. denied, 115 S. Ct. 1118 (1995).

_____ ______

When

the

Commission

Guideline, it coined the

did not define the

Statutory

issued

the

Career

phrase "Offense Statutory Maximum," but

phrase beyond saying that "the

Maximum' refers

Offender

to the

maximum term

term `Offense

of imprisonment

authorized

comment.

for the

(n.2)

offense

(Nov.

tautological, it proved

improvise, several

encompassed not

offense

of

of conviction."

1987).

unilluminating.

courts of

merely the

conviction

criminal activity

States v. Smith, 984

______
_____

Faced with

but

4B1.1,

definition

a need

also

account.

F.2d 1084, 1085 (10th Cir.),

to

the

to the

upgraded

after available enhancements

taken into

was

the phrase

statutory maximum applicable

simpliciter,
___________

are

this

appeals concluded that

statutory maximum that results

prior

Since

U.S.S.G.

See
___

for

United
______

cert. denied,
_____ ______

114 S. Ct.

1009-11

329-30

204 (1993); United States v.

_____________

Garrett, 959 F.2d 1005,

_______

(D.C. Cir. 1992); United States v. Amis,

______________
____

(3d Cir. 1991); United States

_____________

541, 558-60 (9th Cir. 1989).

926 F.2d 328,

v. Sanchez-Lopez, 879 F.2d

_____________

This lexicographical choice carried

with it important consequences; under the courts' construction, a

defendant whose maximum possible term of imprisonment for a crime

of violence or

thirty

drug offense

years on account

was enhanced from,

of prior criminal

additional offense levels (increasing

say, twenty

to

activity, netted two

his TOL from thirty-two to

thirty-four) and found himself in a steeper sentencing range.

In Amendment

defined the

provides

506,

phrase "Offense

the Commission

first

Statutory Maximum."

meaningfully

The amendment

that the phrase, for the purpose of the Career Offender

Guideline, "refers to the maximum term of imprisonment authorized

for

the offense

of conviction

that is a

controlled substance offense, not

maximum

term

applies

because

U.S.S.G.

under

of

the

4B1.1, comment.

sentencing

crime of

including any increase in that

enhancement

defendant's

prior

(n.2) (Nov. 1994).

provision

criminal

21 U.S.C.

that

record."

The amended

offers the example of a defendant who is subject to

enhancement under

violence or

note

a sentencing

841(b)(1)(C), in which

case "the

`Offense Statutory Maximum' for the purposes of this guideline is

twenty years

and

not thirty

years."

Finally, the

Commission

opted

to give

Amendment 506

retroactive effect.

See U.S.S.G.
___

1B1.10(3) (Nov. 1994).

Initially,

the

Commission

attempted

to

justify the

amendment as

"avoid[ing] unwarranted double-counting as

unwarranted disparity associated with

well as

variations in the exercise

of prosecutorial discretion

on

prior convictions."

(Nov. 1994).

id.
___

U.S.S.G.,

App. C,

In addition, the Commission

enacted the array of

predicate

in seeking enhanced penalties

Amend. 506,

based

at 409

observed that Congress

sentence-enhancing laws after the statutory

for the Career Offender Guideline had become law.

See
___

Subsequently, the Commission attempted to explain its newly

emergent interpretation of the Career Offender Guideline in terms

of

desire

consistency.

to

See
___

avoid

unwarranted

disparity

Amendment Notice, 60 Fed.

(1995); see also United States v. LaBonte,

___ ____ ______________
_______

n.4

(D. Me. 1995).

Whatever may

and

to achieve

Reg. 14,054, 14,055

885 F. Supp. 19,

23

be its provenance, it is nose-

on-the-face plain that, in many instances, Amendment 506 produces

lower

TOLs

(and,

ultimately,

shorter

sentences)

than

the

unembellished Career

courts).

Due to

Offender Guideline

this palliative

(as interpreted

effect,

by the

critics view

it as

inimical to congressional intent.1

____________________

1As we have said before, "irony is no

stranger to the law."

Amanullah v. Nelson, 811 F.2d 1, 18 (1st Cir. 1987).

_________
______
its history, the Sentencing
severity of

Commission has been berated

the sentencing outcomes dictated

See, e.g., United States v.

___ ____ ______________
Cir. 1994) (Pettine, J.,
for

Throughout

for the

by the guidelines.

Jackson, 30 F.3d
_______

199, 204-06

(1st

concurring) (criticizing the guidelines

fostering excessively

harsh

sentences); Daniel

J.

Freed,

Federal Sentencing in the Wake of Guidelines and Unacceptable

_________________________________________________________________

Limits on the Discretion of Sentencers, 101 Yale L.J. 1681, 1690

_______________________________________
(1992)

("The

inflexible,

new
and

sentencing
severe

than

guidelines
those

are

devised

more
by

complex,
any

other

jurisdiction."); Charles J. Ogletree, Jr., Commentary: The Death

______________________

of Discretion? Reflections on the Federal Sentencing Guidelines,

________________________________________________________________
101

Harv.

L.

Rev.

1938,

1939

(1988)

(criticizing

"unreasonably long sentences" produced by the guidelines).

the

II.
II.

THE DEFENDANTS
THE DEFENDANTS

These

District

of

four

defendants

Maine as

Amendment

506.

under 21

U.S.C.

enhanced

penalties

all

career offenders

were

sentenced

prior

to the

in

the

birth of

In each instance, the prosecution filed a notice

851(a)(1)

for prior

signalling its

convictions,

intention to

and the

seek

sentencing

court arrived

at the defendant's "Offense

Statutory Maximum" by

factoring the statutory enhancement into the mix.

set

each defendant's

accordingly.

TOL and

Following the

four defendants tried to

The court then

guideline sentencing

promulgation of the

avail themselves of it.

range (GSR)

amendment, all

We

limn their

individual circumstances.

A.
A.

George LaBonte.
George LaBonte.
______________

A grand jury indicted LaBonte for possession of cocaine

with intent to distribute in violation of 21 U.S.C.

(b)(1)(C).

U.S.D.J.)

After he pleaded guilty,

sentenced

him under

the

841(a)(1) &

the district court (Hornby,

Career

Offender Guideline.

Using an enhanced statutory maximum derived from LaBonte's record

of prior

drug convictions,

Judge

Hornby set

LaBonte's TOL

at

thirty-four,

acceptance of

granted

three-level

downward

responsibility, see U.S.S.G.

___

adjustment

3E1.1,

arrived at a

GSR of 188-235 months, and sentenced him to serve 188 months.

affirmed.

See
___

United States v. LaBonte, 19

_____________
_______

for

We

F.3d 1427 (1st Cir.

1994) (table).

Subsequent

LaBonte

moved for

to

the

promulgation

resentencing.

of

Judge Hornby

Amendment

506,

determined that

Amendment 506 was valid

885 F.

Supp. at 24.

and decided to

apply it.

See
___

LaBonte,
_______

He granted LaBonte's motion, focused on the

unenhanced statutory maximum to calculate a new TOL (thirty-two),

and again deducted three levels for acceptance of responsibility.

This

recomputation yielded a

Hornby

See id.
___ ___

GSR of

151-188 months,

and Judge

lowered LaBonte's sentence to the nadir of the new range.

The government appeals from this disposition.

B.
B.

Piper

charging

distribute

pleaded

conspiracy

and

use

to

of a

David E. Piper.
David E. Piper.
______________

guilty

possess

firearm

to

two-count

marijuana

in

with

connection

information

intent

with a

to

drug

offense.

See 21 U.S.C.
___

924(c)(1).

Hornby set

for

Utilizing

an incarcerative

Judge

subtracted three levels

at a GSR

sentence of

of 262-327

300 months.2

See Piper, 35 F.3d at 613.

___ _____

Hot

on

the

unsuccessfully for

amendment's

declined

U.S.C.

statutory maximum,

responsibility, arrived

and imposed

We affirmed.

the

an enhanced

Piper's TOL at thirty-seven,

acceptance of

months,

841(a)(1) & (b)(1)(B), 846; 18

heels

of

resentencing.

validity,

to permit

Piper to

he

Amendment

Although

exercised

benefit from

506,

Piper

moved

Judge Hornby assumed

his

discretion

it.3

and

Piper appeals

from this disposition.

____________________

2Piper

received

firearms count.

an additional

five-year

sentence

That impost is not in issue here.

on the

3The
adjusted

amendment,
offense

if

level

applied, would
from

have

thirty-four

lowered

to

Piper's

thirty-two,

and

decreased the GSR to 210-262 months.

C.
C.

counts.

grand

Alfred Lawrence Hunnewell.

Alfred Lawrence Hunnewell.
_________________________

jury

See 21 U.S.C.
___

indicted

841(a)(1).

Hunnewell

on

six

narcotics

He thereafter pleaded guilty

to two counts

distribute,

remaining

of possessing controlled substances with intent to

and

the

counts.

court

Using an

Carter set Hunnewell's TOL

for acceptance

months,

See
___

U.S.D.J.)

dismissed

enhanced statutory

the

maximum, Judge

at thirty-four, deducted three levels

of responsibility,

and sentenced

affirmed.

(Carter,

arrived at a

the defendant

to serve

GSR of

188-235

188 months.

We

United States v. Hunnewell, 10 F.3d 805 (1st Cir.

_____________
_________

1993) (table), cert. denied, 114 S. Ct. 1616 (1994).

_____ ______

After

beseeched

the

of Amendment

506,

the district court to trim his sentence.

denied

this motion,

lacked

the

appeals.

promulgation

authority

concluding that

to

adopt

the

Hunnewell

Judge Carter

Sentencing Commission

Amendment

506.4

Hunnewell

D.
D.

Dyer

possess

pleaded

controlled

contravention of

enhanced

Stephen Dyer.
Stephen Dyer.
____________

guilty

substances

21 U.S.C.

statutory

maximum,

to

with

a charge

of

conspiring

to

intent

to

distribute

in

841(a)(1),

Judge

Carter set

thirty-four,

refused

arrived at a

GSR of 262-327 months, and

of imprisonment.

846.

Consulting the

Dyer's

an acceptance-of-responsibility

We affirmed.

TOL

at

discount,

levied a 262-month term

See United States v. Dyer, 9 F.3d

___ _____________
____

____________________

4The amendment,
adjusted

offense

if applied, would have

level

from

thirty-one

decreased his GSR to 151-188 months.

10

lowered Hunnewell's
to

twenty-nine,

and

1 (1st Cir. 1993) (per curiam).

Dyer eventually filed a petition for habeas relief, see

___

28 U.S.C.

or,

in

2255, in which

the alternative,

Amendment 506.

petition.

he sought to set aside his conviction

to reduce

Judge Carter

denied and

sentence by

virtue of

dismissed the

habeas

Among other things, the judge, declaring Amendment 506

to be unlawful, refused

to resentence Dyer.5

aspects of the district court's order.

III.

his

THE VALIDITY OF AMENDMENT 506

Dyer

protests all

III.

THE VALIDITY OF AMENDMENT 506

We

begin

our analysis

methodology we will employ

proceed

to

tackle

the

by discussing,

generally, the

in examining Amendment 506.

two conundrums

that

are

We then

inextricably

intertwined with the question of the amendment's validity.

A.
A.

The Methodology.
The Methodology.
_______________

Commentary authored

"interprets or

explains a

violates

Constitution

the

inconsistent

with,

guideline."

Stinson
_______

(1993).

is

Like the

binding on

or

by the Sentencing

Commission that

guideline is authoritative

or

federal

plainly erroneous

v. United States, 113

______________

unless it

statute,

reading

S. Ct.

or

of,

is

that

1913, 1915

Commission's policy statements, its commentary

the federal

courts.

See
___

id. at
___

1917-18.

In

general, these

interpretive materials

substantial degree

administrative

are entitled to

of deference that courts

agency's interpretation

of

the same

routinely accord an

its own

legislative

____________________

5Amendment
adjusted

offense

506,

if

level

applied,
from

would

thirty-four

have
to

lowered

Dyer's

thirty-two,

and

decreased his GSR to 210-262 months.

11

rules.

See id. at 1919.

Thus, under Stinson, judicial

scrutiny

___ ___

_______

of the Commission's commentary is limited to ensuring consistency

with

federal statutes

Commission's

(including,

enabling

statute),

but not

and

restricted to,

with

the

the

guidelines

themselves.

These

analytic paths.

two

When

lines of

inquiry

a court ventures to determine

Commission's

commentary tracks

deference is

at its zenith.

merely

but,

the end

rather,

guidance

proceed along

product of

"explains

the

the

In

guidelines,

different

whether the

the degree

of

this context, commentary is not

delegated authority

guidelines

for rulemaking,

and provides

concrete

as to how even unambiguous guidelines are to be applied

in practice."

Id. at 1918.
___

erroneous rendition of a

Unless the commentary

is a palpably

guideline, it merits respect.

See id.

___ ___

at 1919; Piper, 35 F.3d at 617.

_____

The

determination

of

whether

the

guidelines

are

consistent with positive statutory

law touches a more vulnerable

spot.

the

That

inquiry

implicates

reviewing agency rules typified

opinion

in

Chevron U.S.A. Inc.

____________________

Council, Inc., 467

_____________

warned

that

process

of

by the Supreme Court's watershed

v.

U.S. 837 (1984).

Chevron does
_______

traditional

not provide

Natural Resources Defense

__________________________

Thus, while the

an

Court has

apt analogy

for the

process of reviewing the

relationship between commentary, on the

one hand, and guidelines,

on the other hand, see Stinson, 113 S.

___ _______

Ct.

that Chevron
_______

at 1918,

we believe

deference is

the proper

criterion

for

determining whether

guideline

(or, for

that

12

matter, commentary that suggests how a guideline should be

contravenes a statute.

type of inquiry

The Chevron two-step

_______

like a glove.6

See Chevron,
___ _______

read)

approach fits that

467 U.S. at 842-43

(describing two-step test).

Applying

this

methodology

here

is

not

without

complications.

We limit our inquiry

between the Career Offender

506 and

Guideline as explicated in Amendment

the applicable statute,

statute, Congress directed the

recidivists receive

to the fit (or lack of fit)

28 U.S.C.

994(h).7

In that

Commission to ensure that certain

sentences "at

or

near the

maximum."

The

Career Offender Guideline represents the Commission's response to

this

directive.

See
___

U.S.S.G.

Because the Commission's

must

be

4B1.1,

comment.

understanding of its

measured against

the

Chevron
_______

court

reviews

(backg'd).

statutory mandate

benchmark, the

follows a familiar format:

When
construction
administers,
____________________

of
it

the
is

statute
confronted

an

agency's
which

it

with

two

inquiry

6We

note in passing

the suggestion

by some

scholars that

Stinson implies an extraordinarily deferential standard of review

_______
for the

entire process of

this view, commentary

evaluating guideline commentary.

should be honored unless

plainly erroneous interpretation

statute.

See
___

1 Kenneth Culp Davis

Administrative Law Treatise

____________________________
need not
passes

either of a

probe this
muster under

muster if we were

at 284

possibility today.
the

it constitutes a
guideline or of

and Richard J.

6.10,

Chevron test,
_______

On

Pierce, Jr.,

(3d ed. 1994).

We

Because Amendment

506

it

would clearly

to employ the more deferential

pass

test suggested

by Professors Davis and Pierce.

7Because the government does

is

inconsistent

with

the

discussion of that point.

1, 17 (1st Cir.)

not contend that Amendment 506

guideline

itself,

we

eschew

any

See United States v. Zannino, 895 F.2d

___ _____________
_______

(explaining that issues not briefed

and argued

are deemed abandoned), cert. denied, 494 U.S. 1082 (1990).

_____ ______

13

questions.

First,

whether Congress

always, is

has directly spoken

precise question at issue.

Congress

is clear,

matter .

determines
addressed
. . .

the question

If the intent of

that is
If,

Congress

to the

the end

however,
has

of the

the

not

court

directly

the precise question at issue, the

question for the court

agency's answer

is

based on

is whether the
a

permissible

construction of the statute.

Chevron, 467
_______

U.S. at 842-43; accord

______

Me. Dep't of Human Servs.,

___________________________

denied, 116 S. Ct. 145 (1995).

______

48 F.3d

Strickland v. Commissioner,
__________
_____________

12, 16

(1st

Cir.), cert.
_____

These appeals

in 28 U.S.C.

adopt

focus on a single

sentence that appears

994(h), a sentence that requires the Commission to

guidelines

"that

specify

sentence

to

term

of

imprisonment at or near the maximum term authorized for [certain]

categories of defendants."

three

issues

distinct

of

statutory

iterations

of

application combines

therein.

the

problematic sentence

interpretation,

the

Chevron
_______

that word is

meaning of

The second occasion

the

presents

necessitating

standard.

two issues; it concerns

the word "maximum" as

concomitantly,

This

The

first

the explication of

used in section 994(h)

word

two

"categories" as

for Chevron analysis

_______

and,

used

involves an

exegesis of the phrase "at or near" as used in the same sentence.

The

two

problems

are

interrelated,

but

they

are

somewhat

different in nature.8
____________________

8Although

we

are

interpretations of
at times lead

that

plausible

a series of individual

to an

statute, that is

mindful

here.

strained

statutory terms might

impermissible overall

not the case

if

interpretation of

Whether

one conducts

the

ensuing analysis in one segment or two, the result is unaffected;

the

simple fact

of

the

matter

is

that

14

B.
B.

The First Conundrum.

The First Conundrum.
___________________

the

Commission

has

In the context of section 994(h), the term "maximum" is

susceptible

precisely

possible

defendants

of

divergent

meanings,

what constitutes

reading

is that

charged with

depending,

a "categor[y]

"categories"

in

part,

of defendants."

are

One

composed of

violations of similar

on

those

statutes against

whom prosecutors have filed notices of intention to seek sentence

enhancements (e.g., all repeat

whom

under

the government

21

U.S.C.

statutory maximum

statutory

U.S.C.

has

offender drug traffickers against

filed sentence-enhancing

851(a)(1)).

for any such

On

this

view, the

defendant would be

maximum (ESM) applicable to repeat

841(b)(1),

851(a)(1).

linguistically compelled.

But

informations

this

relevant

the enhanced

offenders.

reading

See 21
___

is

not

The word "categories" plausibly can be

defined more

broadly to

include all

offenders

offenders) charged with transgressing

regardless

of

whether the

sentence-enhancing

(e.g.,

all

traffickers,

841(a)(1)).

drug

prosecution

against

traffickers,

or

are

On this

unenhanced statutory

charged

chooses

all

with

view, the

to invoke

particular

repeat

21

drug

U.S.C.

"maximum" refers

see 21 U.S.C.
___

the

defendant

offender

violating

word

maximum (USM),

repeat

the same criminal statute,

mechanism

who

(or all

to the

841(b)(1),

____________________

developed a reasonable interpretation

language of section

994(h).

approach here, as we believe it

4B1.1,

as

interpreted

by

permissible

construction

of

of the vague and ambiguous

That said, we

employ a

piecemeal

better illustrates that U.S.S.G.

the

amended

Congress's

commentary,

directive

is

that career

offenders be sentenced "at or near the maximum term authorized."

15

since this represents the highest possible sentence applicable to

all defendants in the category.9

Since the sentencing guidelines must

specific

statutory

directives

as

Congress

comport with such

has ordained,

see
___

United States v. Saccoccia, 58 F.3d 754, 786 (1st Cir. 1995) ("It
_____________
_________

is

apodictic that

broadly

than

the sentencing

Congress'

grant

guidelines cannot

of

power

to

the

sweep more

Sentencing

Commission

permits."),

the

question

clearly intended to prefer one

other.

The

appeals have

issue is not

whether Congress

of these interpretations over the

free from

heretofore read

becomes

doubt.

the word

Several courts of

"maximum" in

the former

fashion (as referring to the ESM), see supra pp. 5-6, whereas the
___ _____

Sentencing

Commission now reads the word in the latter sense (as

referring to the USM).

We proceed to test this conflict

in the

Chevron crucible.
_______

1.
1.

must

Step One: Congressional Intent.

Step One: Congressional Intent.
_______________________________

determine

clarity

to

construction

whether

foreclose

Congress

has

spoken

At the outset, we

with

alternative interpretations.

always starts

and

sometimes

ends

sufficient

Statutory

with

the

statute's

text.

problem is not

Here, we find Congress's handiwork opaque.

ambiguity in

unclear from the bare

definition.

Rather,

it is

language of the law which maxima

The

simply

and what

categories Congress had in mind when it contrived section 994(h).

____________________

9The relevance of this

more

apparent in

determine

the

somewhat arid discussion will become

Part III(C),

extent to

infra, when
_____

which sentences

maximum."

16

the need
are

"at or

arises to

near the

The earlier

cases relating

the word "maximum"

ESM do not dictate a contrary conclusion.

to the

Those courts envisaged

their primary task as interpreting the meaning of the guidelines,

see, e.g.,
___ ____

Garrett,
_______

Guidelines

require us

959

to

F.2d at

1010

define the

(concluding

[term] Offense

that

"the

Statutory

Maximum" in a particular way); Amis, 926 F.2d at 329 (stating the

____

court's

task as

Maximum'

the aid of

"merely [to]

determine the

as used in guidelines

Amendment 506.

`Offense Statutory

4B1.1"), and they did so without

Although two

courts suggested

that

reading "Offense Statutory Maximum" as referring to the ESM would

better effectuate congressional intent,

1010; Sanchez-Lopez,

879 F.2d at

see Garrett, 959 F.2d at

___ _______

559, neither

of these

courts

_____________

held

or even

reading.

which

hinted

We have

that section 994(h) thwarted a different

found no

scrutinized the

detected the

indication that

unexplicated version

kind of clear, overarching

any of

the courts

of U.S.S.G.

4B1.1

congressional directive

that would suffice to abort a Chevron inquiry.

_______

Even

principles

were we

of statutory

to believe

otherwise,

two abecedarian

construction nonetheless

continuation of the Chevron

_______

journey.

would counsel

First, courts that

read a

statute without the aid of an authoritative interpretation by the

agency

their

charged with

reading if

administering

the agency

later

the

statute must

speaks to

reexamine

the point.

See
___

International Ass'n
of Bridge, Structural,
and Ornamental
_________________________________________________________________

Ironworkers, Etc. v. NLRB,

_________________
____

Second,

an agency that

946 F.2d 1264, 1271 (7th

is charged with

Cir. 1991).

administering a statute

17

remains free

statute

to supplant prior judicial

as long

as the

interpretations of that

agency interpretation

rendition of the statutory text.

is a

reasonable

See id. at 1270; see also Rust

___ ___
___ ____ ____

v.

Sullivan, 500 U.S. 173, 186-87 (1991) (holding that an agency

________

is

free to reverse its own previous interpretation of a statute,

subject

to

the

same condition);

(same).

Hence, we trek onward.

Strickland,
__________

48

F.3d

at 318

When the plain meaning of a law is not readily apparent

on its

face, the

statutory

next

resort is

construction

scrutinizing statutory

to the

reviewing

structure and

traditional tools

legislative

design

history

in an

of

and

effort to

shed light on Congress's intent.10

As

placed

directly

originally

envisioned, section

the onus of imposing

on sentencing

sentences "at or

judges.

See S.
___

Cong., 2d Sess. 175 (1984), reprinted

_________

994(h)

would have

near the maximum"

Rep. No.

98-225, 98th

in 1984 U.S.C.C.A.N. 3182,

__

3358.

The provision's

author, Senator Kennedy, devised it

means of putting "[c]areer criminals

chronic violence

. . . on notice

will be punished by

as a

that their

maximum prison sentences."

____________________

10We
under

acknowledge

Chevron,
_______

resorting to
search

of

of

the

going

ongoing debate
beyond

plain

the traditional tools of

a clear

Cardoza-Fonseca, 480
_______________
under

the

first

"traditional tools

congressional
U.S. 421,
prong

of

Chevron,
_______

and

Compare
_______

INS
___

v.

(suggesting that,
should

employ

construction") with id.

____ ___

at 454

courts

this statement).

has followed Chevron, 467 U.S. at 843 n.9,

_______

F.3d at 19.

analysis

statutory construction in

directive.

(Scalia, J., concurring) (rejecting

detect clear

the propriety,

meaning

446-48 (1987)

of statutory

tool chest of statutory

over

This court

and employed the full

construction implements in attempting to

congressional meaning.

See, e.g.,
___ ____

Strickland, 48
__________

We continue that practice in this case.

18

128

Cong. Rec. 26,518

wing;

the Senate

994(h)

in its

the

would

the

courts.

The

But

Judiciary Committee

current

rejected proposal,

(1982).

incarnation.

that proposal did

instead approved

This version,

addresses its command to

Committee's view

consistent and rational

that

section

unlike the

the Commission, not

Committee obviously believed

better "assure

not take

substantial prison

that this change

implementation of

terms should

be

imposed on

S. Rep.

repeat violent offenders and

repeat drug offenders."

No. 98-225, supra, 1984 U.S.C.C.A.N.

_____

that this

history confirms that (1) in

at 3358.

We think

creating the Commission,

Congress had an overall goal of curtailing judicial discretion in

sentencing matters; and (2)

had

a specific

intent

individual judges)

in enacting section 994(h), Congress

to let

the

determine the

Commission (as

best method for

opposed

assuring that

career offenders would receive stiff prison sentences.

point,

the

legislative archives

Congress ever

term

"maximum"

recognized either

or the

offer

no clue

as

Past this

to whether

the potential ambiguity

uncertainty

that

to

might attach

of the

to

the

question of what constitutes a category of offenders.

Finding the

clearer

than

the

relevant

statute's

legislative

text,

we

look

history

to

the

to

be

no

enabling

legislation and

Act for

what

the overall

insights they

structure of the

may afford.

Sentencing Reform

Superficially,

these

considerations seem to support the government's position that the

"maximum" is the

distinguish

ESM.

Reading

"categories" narrowly enough

to

between offenders on the basis of whether the United

19

States

Attorney has filed sentence-enhancing informations yields

potentially harsher

more stringent

narrow

sentences in those cases,

punishment for

selected repeat offenders.

reading also preserves

That

the distinction between offenders

who are subject to sentence enhancements based

who are

thereby promising

not

on prior criminal

activity

and those

a distinction

that Congress

arguably

delivered into the hands of prosecutors.

See, e.g., 21
___ ____

U.S.C.

841(b)(1), 851(a)(1).

Although these asseverations

put the government's best

foot forward, they are at most debating points in relation to the

problem

at hand.

directly to

congressional

interpretive

They neither indicate that Congress has spoken

the precise issue

intent

powers.

to

nor reflect a

circumscribe

Indeed, the

sufficiently clear

the

arguments are

Commission's

circular; the

touted

advantages

advantageous

only

of

the

if

one

government's reading

assumes

the

appear

conclusion

to

that

be

the

government is struggling to prove.

We will not add hues to

clear congressional

"maximum" as that

a rainbow.

Because we find no

directive regarding the meaning

term is

used in section

of the term

994(h), our

inquiry

proceeds to the second half of the Chevron two-step.

_______

2.
2.

Step Two:
Plausibility of the Commission's
Step Two:
Plausibility of the Commission's
_________________________________________________

Interpretation.
Interpretation.
______________

Where, as

interpretation by

the agency that administers it will prevail as

long

here, a

statute

is not

clear, an

as the interpretation is reasonable under the statute.

Strickland,
__________

48 F.3d at 21.

See
___

We believe that the Commission's act

20

in

defining "maximum" to refer to the unenhanced maximum term of

imprisonment

the USM

section 994(h).

furnishes a reasonable interpretation of

The statute explicitly refers to

defendants," namely,

repeat

offenders,

not suggest

must

and does

receive the

violent criminals

highest sentence

that each

"categories of

and repeat

drug

individual offender

available against him.

The

Career Offender

Guideline, read

506,

entirely

adopts an

approach

through the prism

plausible version

that the statute suggests.

of Amendment

of the

Unless one

categorical

is prepared to

write off Congress's choice of the word "categories" as some sort

of linguistic accident

inclined

or awkward locution

and we are not

so

this approach is eminently supportable.

Our

dissenting

colleague

He

decries

states that,

the

indeed,

Commission's

categorical

approach.

`categories

of defendants' is perhaps better understood . . . as

a 'linguistic accident or an awkward locution.'"

the contrary, this

. .

The

court,

3553:

in determining

phrase

Post at 47.
____

conclusion is foreclosed by, inter

_____

following explicit language in 18 U.S.C.

(a)

"the

the

To

alia, the
____

particular
__________

sentence

to

be

imposed,

shall
_____

consider

. . . .

(4)

the

kinds

of

sentence

and

the

sentencing range established for

(A)

the

applicable

offense committed by the

_______
of defendant as set
____________

applicable category
________

forth in the

issued by the Sentencing

to section 994(a)(1)
_____________________

category of
____________

of

(Emphasis supplied).

21

guidelines

Commission pursuant
________
title 28

. .

. .

Further

of

defendants"

congressional

inescapable evidence that the term "categories

is

neither

an

usage, see post at

___ ____

accidental

nor

47-48, appears in

recent

28 U.S.C.

994(b)(1):

The Commission, in the guidelines promulgated

___ __________
pursuant
each
____

to

category
________

subsection
__________
of
__

(a)(1), shall,
______ _____

offense
_______

involving
_________

for
___
each
____

category of defendant, establish a sentencing

________ __ _________ _________ _ __________
range that is
_____

consistent with all

__________ ____ ___

provisions of
__________ __

title 18, United

_____ __

pertinent
_________

States Code.

(Emphasis supplied).

Thus, rather than a recent slip of the legislative pen,

the term

"categories of defendants," as used

originated in

the

carefully incubated

sentencing

monitored

by the Sentencing Commission, see 28 U.S.C.

___

important

that

legislation mandating

guideline

implemented by

system

in section 994(h),

was to

the courts, see 18 U.S.C.

___

innovations attending

the

be

promulgated

3553.

and

994, and

Among the more

establishment

of the

new

guideline sentencing system were certain restrictions on judicial

consideration and weighting of individualized sentencing factors,

______________

see,
___

e.g., 18 U.S.C.
____

3553(a)(4), (b), (c); hence, the possibly

"awkward," but nonetheless plainly intended, usage "categories of

defendants."

Given

the

identical

statutory phrasing

consistently

employed

coordinate

by

Congress in

design,

titles

we are

statutory interpretation

18 and

28, as

to

endorse the

unable

advanced in

dissent.

well

as their

unsupported

Rather,

we must

follow the canons of statutory interpretation which demand that a

court give meaning

to each

word and phrase

when explicating

22

statute, and read the component parts of a legislative

enactment

as a unified whole.

See United Technologies Corp.

___ _________________________

Ferris Indus., Inc., 33

_____________________

denied,
______

758

F.3d 96,

101

(1st Cir.

v. Browning_________

1994), cert.
_____

115 S. Ct. 1176 (1995); United States v. Ven-Fuel, Inc.,

_____________
______________

F.2d 741, 751-52 (1st

Cir. 1985); see

___

also Greenwood Trust

____ _______________

Co. v. Massachusetts, 971 F.2d 818, 827 (1st Cir. 1992) ("It is .
___
_____________

. . a general rule

that when Congress borrows language

statute and incorporates

it into a second statute,

of

be interpreted

the two

acts should

the same

from one

the language

way."), cert.
_____

denied, 113 S. Ct. 974 (1993).

______

Moreover,

the

Sentencing

Reform

Act

places

many

restraints on the Commission apart from those embodied in section

994(h).

The most salient of these restraints is the requirement

of

sentencing consistency.

Commission

506, see
___

adverted to

See
___

this concern

U.S.S.G., App. C, Amend.

responded to

it by

Congress's efforts

reconciled

with

categories

of

to

section

categories

by

506, at 409 (Nov.

994(h)'s

of defendants

to

The

Amendment

1994), and

approach.

Similarly,

disparities can

exhortation

for

be

maximal

that exhortation as being addressed

defendants.

choosing

994(f).

in promulgating

eliminate sentencing

Commission remains fully faithful

commands

U.S.C.

taking a categorical

sentencing only if one hears

to

28

treat

In

the

final

analysis,

the

to the welter of congressional

repeat

and thereby

offenders

harmonizing the

as

broad

call for

stringent punishment of recidivists with the call for consistent,

non-disparate sentences.

23

The

government lodges

two further

plausibility of

the Commission's rationale.

that

by

Congress,

851(a)(1),

over

the

intended

potential

Amendment 506

means

of

to give

sentences

such

of repeat

frustrates this intent.

the

First, it contends

statutes

prosecutors

objections to

as

21

U.S.C.

commodious discretion

offenders,

and

that

Though the government may

well be correct

Sentencing

in asserting

Commission

with

prosecutorial

abuses, it

affirmatively

to give

What is

fair

supra,
_____

an

does not

prosecutors

eye

not create

toward

follow that

the keys

the

eradicating

Congress strove

to the

kingdom.11

more, it makes very little sense to impute to Congress a

yearning for

goals of

that Congress did

unbridled prosecutorial discretion

sentencing reform

both to the

were to

"assure that sentences

offender and to society,"

1984 U.S.C.C.A.N.

at 3222,

when two

and to

sentencing disparities among defendants

major

are

S. Rep. No. 98-225,

"avoid[] unwarranted

with similar records who

have been found guilty of similar criminal conduct."

28 U.S.C.

991(b)(1)(B).

The

government's

remaining

objection

to

the

Commission's reading of

prescribes

an identical

the word "maximum" is

sentencing range

that this reading

for

repeat offenders

____________________

11The

government makes

Judiciary Committee,
fear that the
to
225,

much of

the fact

in creating the Commission,

guidelines would increase

explanation

1984
(which

U.S.C.C.A.N.
stressed

that

at
the

disclaimed any

3246.

See S. Rep. No. 98___

But

Congress's

Commission could

against this phenomenon because it was empowered to

statements concerning the

Senate

prosecutors' discretion

reduce sentences through plea bargains.

supra,
_____

that the

guard

issue policy

review of plea bargains, see

___

id.), is
___

indicative of the latitude it intended to give to the Commission.

_________________

24

whether or

not the

enhancements.

eliminates

prosecution

This

reading, the

prosecutorial

Commission the

departure.

to obtain

government says,

enhancements

take

This

21

sentence

effectively

and arrogates

authority that Congress explicitly

United States Attorney.

We

has sought

unto

the

vested in the

We find this polemic unpersuasive.

U.S.C.

841(b)(1)

section establishes

as

unenhanced

our

point

of

maximum terms

applicable to all violators, enhanced maximum terms applicable to

certain repeat

terms

of

offenders, and, in some

incarceration

elementary that

(enhanced

any guideline

or

cases, mandatory minimum

unenhanced).

which prescribes a

It

is

sentence that

falls within these parameters does not conflict with the statute.

What remains is a policy choice, and the Commission, by opting to

emphasize the USM, has done no more than exercise its prerogative

to make precisely this

kind of policy choice.

See Chevron, 467

___ _______

U.S. at 864.

Furthermore, the choice is

purpose of the Career Offender

Guideline, U.S.S.G.

enhance repeat offenders' sentences.

only accomplishes

discernible

section 841.

penalty for

not unreasonable.

making enhanced

4B1.1, is to

The revamped guideline not

that purpose but also

aims in

The root

coheres with Congress's

penalties

available under

While that statute establishes a possible enhanced

________

repeat offenders

if prosecutors choose,

the Career

Offender Guideline, as filtered through Amendment 506, ensures an

actual enhancement of

the TOL

for all repeat

offenders.

This

______

critical

distinction belies

the

government's lament

that

the

25

amendment

sounds

a death

statute.

The

guideline,

knell

for

section

enhancements required

4B1.1,

as

explicated

by

by

Amendment 506, departs from the statute, section 841, only in the

sense that the former

seeks to enhance the sentences

of a wider

class

of recidivists.

purposes of

career

This departure lacks

testing the

offender

fidelity of the

provisions

to

irrelevant that some sentences

the

significance.

For

sentencing guidelines'

statutory

scheme,

it

is

beyond those mandated by Congress

are also enhanced.

When all is said and done, the Commission's decision to

treat

the word

"maximum"

maximum applicable

as meaning

to a category of

is a plausible rendition

the unenhanced

statutory

offenders, broadly defined,

of section 994(h).

We must honor

the

Commission's definition.

C.
C.

As

contains a

we

have

specific

The Second Conundrum.

The Second Conundrum.
____________________

previously

directive

explained,

that,

in

the

section

994(h)

case

career

of

offenders, sentences ought

authorized."

to be

"at or near

term

The government contends that, regardless of how the

word "maximum" is construed, Amendment

fails

the maximum

506 is invalid because it

to produce sentences that are "at or near" any conceivable

maximum.

As before,

we measure this contention by

wielding the

Chevron yardstick.
_______

1.
1.

Step One:
Congressional Intent.
Step One:
Congressional Intent.
________________________________

belaboring the obvious,

near"

is neither

we start

an exact

nor a

26

At the risk

from the premise

that "at

self-defining term.

of

or

Section

994(h) is

silent

maximum, and

this point.

as to

Especially since

statutory

goal, see
___

divine a sufficiently

Thus,

"near" sentences

the legislative history is

calculating how "near" the

the

how

must

be to

the

singularly unhelpful on

we must concentrate on the USM

in

Commission's sentencing ranges are to

supra Part
_____

III(B),

clear expression of

we quickly move to the second

we are

unable to

congressional intent.

and decisive

portion of

the Chevron query.

_______

2.
2.

Step Two:
Plausibility of the Commission's
Step Two:
Plausibility of the Commission's
_________________________________________________

Interpretation.
Interpretation.
______________

the

Career

Commission,

The question

Offender

Guideline,

sufficiently

reasonable construction of

setting, deference to the

"At

of plausibility reduces to whether

as

ensures

"at or

now

interpreted

sentences

that

or near" is an inherently variable phrase.

a Texan, one

speaking with

Boston, but it

description would (or could) be

"at or

continuum

of

near," as employed

various

sentences,

this

appropriate.

employed in

a resident of, say, Cambridge or Cranston.

events, the phrase

suggests

In

In speaking with

might say that Providence is "near"

is doubtful if that

the

satisfy

near the maximum."

Commission is especially

by

in this

each

In all

statute,

relatively

further from, or closer to, the statutory maximum.

It

is

also important

to

recognize

that the

career

offender

enhancement is not the end point of the sentencing road

and,

itself,

by

sentences.

does

not

dictate

individual

defendants'

Once the "Offense Statutory Maximum" derived from the

Career Offender

Guideline functions to yield

a defendant's TOL,

27

the sentencing court

must then make

a myriad of

individualized

adjustments to the offense level, up or down, for factors such as

acceptance

of responsibility

offense, see U.S.S.G.

___

when all

pulled

the

sentence.

certain

3B1.1,

sentences

the

Even then, the

circumstances,

to

of

the sentencing

court

and,

3E1.1, role

3B1.2, and the like.

component parts

together that

permissible

see U.S.S.G.
___

can

hence,

ascertain

settle

It is only

equation

the

upon

defendant furnishes substantial

downward

if

assistance in the

range

the

court retains authority,

depart

in the

are

of

actual

at least in

particular

investigation

or prosecution

of another person

who has committed

an offense,

see 18 U.S.C.
___

3553(e); U.S.S.G.

5K1.1, or to depart in

either

direction if aggravating or mitigating circumstances warrant, see

___

18

U.S.C.

3553(b); U.S.S.G.

adjustments derive from explicit

5K2.0.

Many of these prospective

statutory commands.

See, e.g.,

___

28

U.S.C.

994(n)

(directing

the

Commission

to

____

create

mechanism through which defendants will be rewarded for rendering

substantial assistance).

We

implications

believe

are constructed,

the "at

respect for

this

reality

for the question at bar.

the labyrinthine way in

on

that

which repeat offenders' actual sentences

language

is very

agency interpretations is

in complex and highly specialized areas

has

been intricately

significant

First and foremost, given

heightened deference to the

or near"

has

woven,"

Commission's slant

desirable.

After all,

"particularly appropriate

where the regulatory net

Massachusetts Dep't of Educ.

_____________________________

28

v.

United States Dep't of Educ., 837 F.2d 536,

_____________________________

(citation

and

quotation

marks

omitted),

541 (1st Cir. 1988)

and

the

guidelines constitute a classic example of such a

words,

due to

calculation, a

the interstitial

reviewing court

the reasonableness

"near" is "near."

of

the

nature of

the

web.

In other

career offender

should be generous

Commission's

sentencing

in assessing

approximation

of

how

The fact

itself

directly

that the career offender

determine

sentence has other

any

particular

implications as well.

adjustment does not

defendant's

actual

Unless one is ready to

place any and all downward adjustments beyond a repeat offender's

reach

and even

position

it

the government does

is surpassingly difficult

expect the Commission to

offenders

not espouse so

individual's ESM.

(if not impossible)

write a rule which ensures

will invariably

extreme a

receive sentences

"at or

to

that career

near" each

Once a sentencing court has made such downward

adjustments, it would be surprising if many defendants' sentences

came very near to

the statutorily prescribed "maximum" penalties

that are theoretically available

be

defined).

upward

By

adjustments

like token,

to

the

(however the word "maximum" may

the

TOL

very real

may

make

possibility that

career

offenders'

sentences

in

the

more severe suggests that room should be left for play

joints as

the Commission

implements

the "at

or near"

as we

these complexities,

we think

language.

Mindful,

that

are, of

Amendment 506 passes muster.

The sentences available under

29

the

newly

explicated

Career Offender

Guideline

constitute

substantial

statute.

to the

proportion of

the possible

We can conveniently illustrate

four defendants who

operation of

sentences permitted

the point by reference

are involved in

Amendment 506, defendants

by

these appeals.

By

like LaBonte, Hunnewell,

and Dyer now face maximum sentences of 262 months (the top of the

recalculated GSR) before taking

adjustments.

for

into account any

individualized

262-month sentence represents 109.2% of

these defendants'

offense

of conviction.12

the USM

On the

same

basis, a defendant like Piper now faces a maximum sentence of 365

months

possible

(76%

of the

sentences

Amendment 506,

applicable USM).

Examining the

available

each

the median

LaBonte, Hunnewell,

against

sentence in

and Dyer

gamut of

defendant

under

the range applicable

(236 months) constitutes

to

98.3% of

the

USM, while

the median

Piper (294.5 months)

suitable definition

Commission

could

sentence in

constitutes 61.4%

of

the word

reasonably

the range

of the USM.

"near,"

conclude

we believe

that

ensure sentences sufficiently close to the USM

harsh

to provide

pertinent to

these

any

that

the

percentages

and sufficiently

a fair approximation of Congress's

see that career offenders,

Under

desire to

as a group, receive maximal

terms of

imprisonment.

IV.
IV.

THE APPLICATION OF AMENDMENT 506

THE APPLICATION OF AMENDMENT 506

____________________

12We think that this calculation graphically illustrates the

fallacy underlying our dissenting brother's lament that Amendment

506,

"effectively nullifies

the

criminal history

carefully enacted in statutes like 21 U.S.C.

42.

30

841."

enhancements

See post at
___ ____

Having

exercise of

determined

that

the Sentencing

Amendment

506

Commission's powers, we

is

lawful

now address

the motions for resentencing.

The principles governing motions to resentence based on

newly emergent guideline amendments can be compactly

When the Commission amends

of the guidelines)

in a

catalogued.

the guidelines (or its interpretation

manner that favors

defendants, it

may

invite retrospective

application

of the

new

interpretation.13

In such an event, a defendant who believes that the amendment, if

in

force

earlier,

would have

reduced

his

GSR

may move

for

resentencing.

The district court, "after considering the factors

set

section

forth in

applicable,"

may reduce

consistent with

Sentencing

3553(a)

to

the sentence

the applicable

Commission."

permits, but does not

the

18

extent

that

"if such

they

reduction is

policy statements issued

U.S.C.

3582(c)(2).14

require, the district court

are

by the

The

law

to resentence

____________________

13For

this

"clarification."
sentencing

purpose,

an

"amendment"

Clarifications explain

guidelines;

they

do

not

differs

from

earlier editions of the

change

those provisions.

Because they are retrospective by nature, they do not require any

special

retroactivity designation.

See
___

U.S.S.G.

1B1.11(b)(2);

see also United States v. LaCroix, 28 F.3d 223, 227 n.4 (1st Cir.

___ ____ _____________

1994).

In contrast, amendments do

if they are to
so specify.
opinion

_______

change prior guidelines and,

be given retroactive effect, the

See 28
___

deals

U.S.C.

exclusively

Commission must

994(u); U.S.S.G.
with

amendments

1B1.10.
as

This

opposed

to

clarifications.

14The factors

set forth in section 3553(a), insofar as they

are arguably applicable to any of the instant defendants, include

the

nature and

circumstances

criminal past, the GSRs,

the

necessity

of

of the

offense, the

defendant's

the Commission's policy statements, and

avoiding

unwarranted

among similarly situated defendants.

31

sentencing disparities

See 18 U.S.C.
___

3553(a).

such a defendant.

197

trial

See United States

___ _____________

(1st Cir. 1992).

Because this

court's discretion,

only if the record

See United States

___ _____________

v. Connell, 960 F.2d

_______

191,

decision is committed to the

the court

of appeals

reveals a palpable abuse of

v. Pardue, 36 F.3d 429, 430

______

denied, 115 S. Ct. 1969 (1994); United States v.

______
_____________

will interfere

that discretion.

(5th Cir.), cert.

_____

Telman, 28 F.3d
______

94, 96-97 (10th Cir. 1994); see also United States v. Twomey, 845
___ ____ _____________
______

F.2d 1132,

paradigm,

1134 (1st Cir. 1988).

It is plain

most resentencing battles will

that, under this

be won or

lost in the

district court, not in an appellate venue.

With

this

defendants' cases.

brief

preface,

we

reach

the

individual

A.
A.

In LaBonte's

506

and

applied it

LaBonte, 885 F.
_______

from

case, the district court upheld Amendment

to reduce

Supp. at

the reconfigured

court's

Guideline.

George LaBonte.
George LaBonte.
______________

validation

24.

the

Although

sentence,

of

the

Because the

argued a claim that the

defendant's sentence.

the government

it challenges

reinterpreted

government

has

appeals

only the

Career

lower

Offender

neither asserted

nor

court abused its considerable discretion

in reducing LaBonte's sentence, we must affirm the judgment.

United States v.
______________

See
___

Zannino,
_______

denied, 494 U.S. 1082 (1990).

______

895 F.2d

1,

17 (1st

Cir.),

See
___

cert.
_____

B.
B.

In Piper's

David E. Piper.
David E. Piper.
______________

case, the district

court upheld

Amendment

32

506

but

refused

to

mitigate

the

original

sentence.

proffers a potpourri of protests to the court's ruling.

of them warrant discussion.

Piper

Only two

First, Piper suggests that under 18 U.S.C.

a district court may only decide whether

an

amendment

misreads

would be

the

served by

statute:

it

the policies underlying

lessened sentence.

authorizes

is

3582(c)(2)

the

consistent

Piper

district judge

with the

to

resentence

when resentencing

underlying

the amendment, but it neither compels the judge to do

so nor limits his inquiry to the consistency question.

language is

need

not

even

amendment

3553(a)

precatory rather than mandatory,

consider

if,

to

the policy

"after considering

the

extent

they

are

Since the

the district court

statements

the

policies

supporting

factors set

applicable,"

forth

18

an

in

U.S.C.

3582(c)(2), the court prefers to stand by the existing sentence.

Piper's

court

failed

to

next remonstrance

reweigh

the

suggests that

factors

delineated

the district

in

section

3553(a),

see supra
___ _____

decision

cannot

discretion.

premise.

outset.

The

note 14,

constitute

problem

and that,

therefore, the

proper

with this

exercise

remonstrance

of

court's

judicial

lies in

its

The district judge presided over Piper's case from the

He possessed great familiarity with the odious nature of

the offense of conviction (leading

family's home while heavily

a "commando-style" raid on

armed, and searching for a

illegal drugs supposedly secreted there).

originally,

he knew

the

intimate details

33

stash of

Having sentenced Piper

of Piper's

criminal

history.

At

the hearing on the motion

listened to arguments

that zeroed

to resentence, the judge

in on the

very factors

that

Piper now claims were overlooked.

In the end, Piper's argument invites us to elevate form

over substance.

is

clear that

We decline the invitation.

the sentencing

Where,

as here, it

judge has considered

the section

3553(a) factors, we will not interpose a further requirement that

he make

explicit findings as to

See United States

___ _____________

(holding that a

v. Savoie, 985
______

each and all of

those factors.

F.2d 612, 618 (1st

district court need

not make explicit

Cir. 1993)

findings

regarding

"so long

implicit

the statutory factors

as the

record on appeal

findings

consideration of

Educ. Corp.,
____________

relevant to

or

953 F.2d

reveals that

otherwise

those factors");

717, 720

restitution orders

the judge

made

evinced

his

adequately

United States v.
_____________

(1st

Cir. 1992)

Wilfred Am.
___________

(similar, in

respect to fines); see generally United States v. Tavano, 12 F.3d

___ _________ _____________
______

301,

307 (1st

lawfully

Cir.

may make

matters

. .

suggest

that the

1993) ("As

a general

implicit findings

. .").

On

this record,

district court

rule, a

with regard

it strains

neglected to

trial court

to sentencing

credulity to

take account

statutorily required items in its decisionmaking process.

C.
C.

Alfred Lawrence Hunnewell.

Alfred Lawrence Hunnewell.
_________________________

of

In

Amendment

reason.
______

Part

506

Hunnewell's

was invalid,

Having concluded

III, we

case,

the district

and refused

to

court

apply it

that the lower court erred,

ordinarily would

remand for

held

that

for that
________

see supra
___ _____

further proceedings.

34

But

the government has other ideas; it asserts that the district

court's order should

and it asks us

be construed as an

to affirm the denial of

exercise of discretion,

Hunnewell's resentencing

request on this basis.

After

painstaking

examination

reject the government's asseveration.

not

yield

milk.

Indeed, the

of

the

record, we

Calling a horse a cow does

government tacitly

concedes the

weakness of

its position by forgoing

developed argumentation on

this

and instead

with

point

district

branch

could

to

discretion

district

instance.

regaling us

(or should)

Hunnewell.

conferred

court

not

have

The fact

by

18

declined to

remains,

U.S.C.

this court

Consequently,

the reasons

the denial

extend

however,

3582(c)(2)

to exercise

in

of Hunnewell's

why the

an olive

that

the

is for

the

the first

motion for

resentencing must be set aside and the cause remanded for further

consideration of that motion.

Before

leaving

Hunnewell's

situation,

comment on the government's suggestion that,

we

pause

to

because Hunnewell's

original sentence was still within the post-amendment GSR (albeit

barely),

we need not afford the district court an opportunity to

decide whether to resentence him.15

In its haste to

validate this argument, the government

distorts our holding in United States v. Ortiz, 966 F.2d 707 (1st
_____________
_____
____________________

15The

district court

months, and sentenced

Applying

initially computed

Hunnewell to serve

Amendment 506 to Hunnewell's case

of 151-188 months.

See supra note 4.

___ _____

35

a GSR

of 188-235

188 months in

prison.

yields a revised GSR

Cir.

1992), cert. denied, 113 S. Ct.

_____ ______

1005 (1993).

In Ortiz, we
_____

explained that,

where it

appears reasonably likely

that the

district judge selected a sentence because it

was at

or near a polar

or bottom)
judge

of the

thought

extreme (whether top

guideline range

applicable,

the

that the
court

of

appeals should vacate the sentence and remand

for resentencing if it is determined that the
court erred in its computation
notwithstanding
between

the

of the range,

that there may be an overlap

"right" and

"wrong" sentencing

ranges sufficient to

encompass the

sentence

actually imposed.

Id. at 717-18.
___

So it is here.

hearing, both the government

In Hunnewell's initial sentencing

and the defense asked the

impose

a sentence at the bottom of

Giving

vitality to

rests,

we cannot be confident that, faced with a different range

the

the GSR.

court to

The court obliged.

foundational principle

on which

Ortiz
_____

of options, the district court's choice will remain the same.

D.
D.

Stephen Dyer.
Stephen Dyer.
____________

Since Dyer's and Hunnewell's cases are virtually on all

fours vis-a-vis the

_________

not

linger.

IV(C),

For the

posture of the

resentencing issue, we

reasons already expressed,

Dyer is entitled to

have the district

need

see supra Part

___ _____

court address the

merits of his request for resentencing.

V.
V.

THE SECTION 2255 PETITION

THE SECTION 2255 PETITION

Dyer

dismissal of his

dismiss a

hearing if

also appeals

section 2255

section 2255

from

the district

petition.

district court

petition without holding

it plainly appears on the

court's summary

may

an evidentiary

face of the pleadings that

the petitioner is not entitled to the requested relief, or if the

36

allegations, although adequate on their face, consist of no

than conclusory

the

key factual

prognostications and

averments

on which

more

perfervid rhetoric,

the

or if

petition depends

are

either inherently improbable or contradicted by established facts

of record.

See United States

___ _____________

v. McGill, 11 F.3d
______

223, 225 (1st

2255 (explaining

that a hearing

Cir. 1993); see also 28 U.S.C.

___ ____

is

unnecessary

when the

record

"conclusively

shows that

the

prisoner is entitled to no relief").

We believe

that Dyer's petition is

specifically defective.

court noted that

under

oath,

Taking

first things first, the district

Dyer had not presented

and that,

both generally and

therefore, he

his factual allegations

was

not entitled

to the

relief that he sought.

We agree.

Dyer's sworn petition contained

bare

statement

counsel.

that

While

he

received

some additional

ineffective

allegations were

assistance

of

set forth

in

memorandum of

void.

A habeas application must rest on a foundation of factual

or supporting

under oath, either in

affidavits.

Section 2255 Proceedings,

an

See, e.g.,
___ ____

28 U.S.C.

unsworn memorandum will not

States,
______

965 F.2d

allegations

the

Dyer's

allegations presented

law, those

nothing more than

1184, 1195

did not

a verified petition

Rule 2,

2255.

suffice.

(1st Cir.

See
___

fill the

Rules Governing

Facts alluded to in

Barrett v. United
_______
______

1992); Dalli
_____

v. United
______

States, 491 F.2d 758, 760 (2d Cir. 1974).

______

Even

were

we

prepared

to

overlook

this

fatal

shortcoming, the petitioner

would not find surcease.

We review

37

claims

of

part under

U.S.

constitutionally deficient

the familiar

668 (1984).

who alleges

test of

performance

Strickland v.
__________

on counsel's

Washington, 466
__________

According to this regime, a criminal defendant

ineffective

assistance must

demonstrate

that

his

attorney's performance

was prejudiced

was unreasonably deficient,

as a result of it.

and that

See Scarpa v. DuBois, 38 F.3d

___ ______
______

1, 8 (1st Cir. 1994), cert. denied, 115 S. Ct. 940 (1995).

_____ ______

as in

When,

this case, a defendant has pleaded guilty to a charge, the

prejudice prong of

his

he

counsel's

the test requires

unprofessional

insisted on his right to

him to show that,

errors,

trial.

he probably

but for

would

See Hill v. Lockhart,

___ ____
________

have

474 U.S.

52, 59 (1985).

In

district

In

light

of

these

court appropriately

authorities, we

dismissed Dyer's

think

that

the

habeas petition.

his brief, Dyer contends, inter alia, that his trial attorney
_____ ____

assured

him that

his sentence

months,

and that

there

would be

was simply

no more

"no way"

than eighteen

that he

would be

sentenced as a career offender pursuant to U.S.S.G.

4B1.1.

Even

a generous reading of this claim leaves no doubt that Dyer failed

adequately

to allege

any cognizable

prejudice.

An attorney's

inaccurate prediction of his client's probable sentence, standing

alone, will not

satisfy the prejudice

prong of the

ineffective

assistance test.

See Knight v. United States,

___ ______
_____________

37 F.3d 769, 774

(1st Cir. 1994).

Similarly, Dyer's self-serving statement that,

but for his counsel's inadequate advice he would have pleaded not

guilty, unaccompanied

by

either a

38

claim

of innocence

or

the

articulation of

had

he opted

required

835

any plausible defense that he

for a

prejudice.

(D.C. Cir.),

trial, is

could have raised

insufficient to

See United States v. Horne,

___ ______________
_____

cert. denied,
_____ ______

114 S.

Ct. 153

demonstrate the

987 F.2d 833,

(1993); United
______

States v. Arvanitis, 902 F.2d 489, 494 (7th Cir. 1990).

______
_________

To

Dyer

add the

signed stated

finishing touch,

in so

many words

possible sentence

of thirty

court

this warning

reinforced

the plea

that

he faced

years' imprisonment.

during

the

agreement that

a maximum

The district

plea colloquy,

and

explained

to Dyer that his sentence could not be calculated with

certitude until

the

probation office

prepared the

presentence

investigation report.

In response to questioning from the bench,

Dyer acknowledged his

understanding that even

harsher-than-expected

sentence,

plea.

And Dyer

promises to him

Thus,

he

if he received

would remain

bound

also assured the court that no one

anent the

regardless of

his

prospective length

by his

had made any

of his

counsel's performance,

sentence.

Dyer was

well

aware of the full extent of his possible sentence when he decided

to forgo a trial and enter a guilty plea.

Under the applicable constitutional standard, a failure

of

proof on

either

prong of

the

Strickland test
__________

ineffective-assistance-of-counsel claim.

See
___

defeats

an

Scarpa, 38 F.3d at
______

8-9.

Since

we

find

no

determine what Dyer's trial

whether

the

guidelines to

attorney

such

an

cognizable

prejudice,

we

need

not

attorney did or did not tell him, or

lacked

extent

familiarity

as

to

with the

render

his

sentencing

performance

39

constitutionally infirm.

We

have also

considered Dyer's

other assignments

of

error.

His plaint that the district court acted precipitously in

dismissing

the

evidentiary

petition without

hearing is meritless.

226; United States v. Butt, 731

_____________
____

His remaining claims

lower

court

first

did

not

pausing

to convene

an

See, e.g., McGill, 11 F.3d at

___ ____ ______

F.2d 75, 80 n.5 (1st Cir. 1984).

are unworthy of

blunder in

detailed discussion.

summarily

dismissing

The

Dyer's

application for federal habeas relief.

VI.
VI.

CONCLUSION
CONCLUSION

We

herein,

need go

no

further.

we affirm the judgments

(Nos. 95-1538

and 95-1226,

For

the reasons

in the LaBonte

respectively);

and Piper cases

remand for

resentencing in the Hunnewell case (No. 95-1101);

discussed

possible

and affirm the

judgment in the Dyer case (No. 95-1264) in part, but vacate it in

part and remand for

as to

how

the

possible resentencing.

district

court

should

resolve

resentencing questions.

So Ordered.
So Ordered.
__________

Separate Opinion Follows

40

We intimate

the

no view

remaining

STAHL,
STAHL,

Circuit Judge,
Circuit Judge,
______________

dissenting in part).
dissenting in part).

(concurring
(concurring

With all due respect, I

in
in

part
part

and
and

disagree with

my colleagues that the phrase "maximum term authorized" in 28

U.S.C.

994(h)

interpretation.

In endeavoring

sound basis for their

where none

supports

exists.

more

than

one

plausible

to set forth an analytically

decision, my colleagues find ambiguity

After careful

review, I believe

that,

when

applied

to

defendants

subject

to

special

enhanced

penalty provisions, the only plausible interpretation

phrase

"maximum term

punishment.

authorized"

Furthermore,

once

is the

the

enhanced

phrase

of the

maximum

"maximum

term

authorized" is correctly read as referring in these instances

to

the enhanced statutory maximum, I think it clear that the

sentencing

scheme

propounded

by

Amendment

506

does

not

satisfy Congress's clear command to sentence career offenders

at or near that maximum.

Accordingly, I dissent with respect

to parts I-IV.

I.
I.

In

a full-blown

reaching their conclusion, my colleagues engage

Chevron inquiry twice, carefully

_______

analyzing the

phrases "maximum term authorized," "categories of defendants"

and

"at

or

near."16

On

the

first

pass,

they

____________________

16.

28 U.S.C.

The

994(h) provides:

Commission

guidelines
of

shall

assure

specify a sentence

imprisonment at
__

or near
__ ____

-4141

that

the

to a term
the maximum
___ _______

find,

depending on

that the

two

the meaning ascribed to

the term "categories,"

phrase "maximum term authorized"

different

"categories"

distinctions

penalties and

plausible

is

interpretations.

defined

so

that

it

between defendants subject

those who are

term

authorized" must

when

referring to

is susceptible to

the former

the

recognizes

the phrase

enhanced statutory

and the

authorized
__________

defendants

in

for

which

categories
the

defendant

of
is

eighteen years old or older and

(1) has been

convicted of a

the

"maximum

maximum

unenhanced statutory

____________________

term
____

term

to special enhanced

not, then

mean the

If

felony that

is
(A) a crime of violence; or
(B) an offense described

in section

401 of the Controlled Substances Act

(21

U.S.C.

1002(a),

[ ]

1005,

Controlled

841),

and

1009

Substances

Export Act (21

sections
of

the

Import

and

U.S.C. [

952(a),

955, and 959), and the Maritime Drug

Law Enforcement Act (46

U.S.C. App.

[ ] 1901 et seq.) and

(2) has previously

been convicted of two

or more prior felonies, each of which is

(A) a crime of violence; or

(B) an offense described

in section

401 of the Controlled Substances Act

(21

U.S.C.

1002(a),
Controlled

[ ]

1005,

841),

and

1009

Substances

Export Act (21

sections

U.S.C. [

of

Import
]

the
and

952(a),

955, and 959), and the Maritime Drug

Law Enforcement Act (46
[ ] 1901 et seq.)

(Emphasis added.)

U.S.C. App.

-4242

maximum

when referring to the

the

enhanced statutory maximum

the

other hand,

"categories"

is

my

latter.

define this as

("ESM") interpretation.

colleagues contend,

read more

They

broadly

recognize these distinctions, then

that

such that

if the

it

On

term

fails to

the phrase "maximum

term

authorized" must

mean in all cases

maximum

that

because

is

the

applicable

to all defendants

this

the

as

interpretation.

highest

statutory

My colleagues then

sentence

They define

maximum

("USM")

conclude that,

plausible, Congress has

clearly or without ambiguity on

should defer to the

possible

in the category.

unenhanced

both interpretations are

the unenhanced statutory

because

not spoken

the issue and, therefore, we

Commission's choice between the two.

disagree with this analysis because I do not believe that the

USM

interpretation

is a

plausible

reading

of the

phrase

"maximum term authorized."

Principally,

inherently implausible

find

the

USM

because it effectively

criminal history enhancements

interpretation

nullifies the

carefully enacted in

statutes

like

21 U.S.C.

expressly

referred

841.

These

in the

statutes, to

text

of

intricate web of enhanced penalties

who are repeat offenders or

or serious

bodily injury.

which Congress

994(h),

provide

an

applicable to defendants

whose offenses resulted in death

The

USM interpretation, however,

completely disregards these enhanced penalties because, under

-4343

that interpretation,

near

the

penalties

all defendants must be

unenhanced maximum

apply.

whether

Recognizing that

or

this

render

suppose that Congress

result.

A plausible

meaningless complete

not the

Congress

referred to these statutes in the text of

absurd to

sentenced at or

specifically

994(h),

did not intend

reading of

enhanced

to preclude

a statute

sections of

it seems

would not

other statutes

to

which it refers.17

The

reasoning of the

in United States
_____________

Cir. 1992), firmly

court

rejected

v. Garrett,
_______

District of Columbia Circuit

959 F.2d

1005, 1010-11

supports this analysis.

the

argument

that

the

In

(D.C.

Garrett, the
_______

guideline

phrase

"Offense Statutory Maximum"

should be read

unenhanced statutory maximum.

such

an

Id.
___

interpretation (which

to refer to

The court explained that

I note

necessarily requires

interpreting the phrase "maximum term authorized" in

to mean

intent."

that

the unenhanced maximum)

Id.
___

at 1011.

"Congress

distinctions

among

intended

offenders

994(h)

would "thwart congressional

The court

the

reasoned that to conclude

to

erase

based either

the

on

statutory

their

past

____________________

17.

The majority

moment

because a

interpretation
technically

as

contends that
Career

Offender guideline

espoused

conflict

by

with 21

enhanced penalty statutes.

this argument is

Amendment

U.S.C.

of little

using the
506

841 or

does
the

While I agree that there

USM
not
other

may be

no technical "conflict," I hardly take that as

Congress intended to permit

evidence that

the Commission in interpreting

994(h) to nullify many of the special enhanced penalties.

_______

-4444

actions or on the

carefully

senseless."
_________

set

Id.
___

circumstances of the offense, distinctions

forth

in

subsection

(emphasis added).

841(b)(1)(B) would
_____

While it

is true

be
__

that

Garrett
_______

involved

Statutory

only

Maximum"

the

and

statutory language,

did

not

directly

I think its analysis

applies

with equal force to

prior to

the promulgation

defined

interpretation

"Offense

consider

the

is informative and

the question at

of Amendment 506,

the guideline phrase

of

hand.

Indeed,

the Commission

"Offense Statutory Maximum" as

equivalent to the statutory phrase "maximum term authorized."

See U.S.S.G.
___

4B1.1, comment. (n.2) (Nov. 1993).18

Furthermore,

strongly

suggests

authorized" to

enhanced

noted that

that

refer, in

maximum

penalty.

994(h)

believe

Congress

the

legislative

intended

"maximum

appropriate circumstances,

The Senate

was enacted

history

term

to the

Judiciary Committee

to replace the

sentencing

provisions

for "dangerous special

special drug offenders" provided

3575 (repealed 1984)

and 21

offenders" and "dangerous

respectively by 18 U.S.C.

U.S.C.

849 (repealed

1984).

See S. Rep. 225, 98th Cong. 2d Sess. 120 (1984), reprinted in

___
_________ __

1984 U.S.C.C.A.N.

3182, 3303.

These

two provisions enabled

____________________

18.

Other

circuits

Maximum" similarly.
1086-87
Statutory

(10th

have

interpreted

Statutory

United States v. Smith, 984 F.2d

______________
_____

Cir.)

(similarly

Maximum"), cert.
_____

United States
______________

"Offense

v. Amis,
____

interpreting

denied, 114
______

926 F.2d

328,

1084,

"Offense

S. Ct.

204 (1993);

330 (3d

Cir. 1991)

(same); United States v. Sanchez-Lopez, 879 F.2d 541, 558-560

_____________
_____________
(9th Cir. 1989) (same).

-4545

courts

to

sentence

imprisonment

"dangerous"

longer

provided."

S.

than

Rep.

that

225

defendants

which

at

117,

to

terms

would ordinarily

reprinted
_________

in
__

"of

be

1984

U.S.C.C.A.N. at 3300; see United States v. Thornley, 733 F.2d

___ _____________
________

970,

972

(1st

offender"

sentence

subject

Cir.

sentence

for

to

the

1984)

that

(affirming

exceeded

underlying

sentencing under

the

offense).

these

"dangerous

maximum

special

prescribed

defendant

provisions

was

upon, inter

_____

alia, a finding of
____

was considered

than
____

the
___

dangerousness.

dangerous if

maximum
_______

provided

Specifically, a defendant

a term of

in

the

imprisonment "longer
______

statute

defining

the

[underlying] felony `[was] required for the protection of the

public.'"

S. Rep. 225 at 117, reprinted in 1984 U.S.C.C.A.N.

_________ __

at 3300 (quoting 18 U.S.C.

(emphasis

added).

As

3575(f) and 21 U.S.C.

this definition

makes

849(f))

clear,

the

purpose of these special offender statutes was to provide, in

appropriate

otherwise

circumstances,

provided in

United States
______________

enhanced punishment

the underlying

v. Sutton,
______

415 F.

statute.

Supp. 1323,

beyond that

See, e.g.,
___ ____

1324 (D.D.C.

1976).

This is

exactly the same

enhanced penalty provisions found

841.

"same

Because

Congress intended

considerations,"

1984 U.S.C.C.A.N.

rationale underlying

the

in statutes like 21 U.S.C.

994(h) to

address these

see S. Rep. 225 at 120, reprinted in

___
_________ __

at 3303,

it seems reasonable

-4646

to conclude

that Congress intended "maximum

term authorized" to mean the

enhanced statutory maximum.19

In sum, because the USM interpretation would render

ineffective

21 U.S.C.

suggests

the enhanced penalties provided in statutes like

841 and

because the legislative history strongly

that Congress

intended

the

phrase "maximum

term

authorized" to mean the enhanced statutory maximum, I believe

deferring to the

Commission's interpretation

"maximum term authorized" in

argument turns

"categories" found in

phrase

994(h) is inappropriate.

In passing, I further note that,

colleagues'

of the

on

994(h).

in large part, my

their analysis

of the

term

Indeed, they can only import

ambiguity into

the narrow phrase "maximum

by first

deeming the

fatally

imprecise.

interpretation

by

term authorized,"

expression "categories

Moreover,

they

reasoning that

any

of defendants"

justify

the

USM

other interpretation

____________________

19.

In

concluding

that the

disprove the plausibility

legislative

history fails

of the unenhanced

to

interpretation,

the majority quotes the Judiciary Committee's opinion that

994(h) and

994(i) would "assure the

implementation

of

the

prison terms should

drug offenders."

the

S. Rep. No. 225 at

Committee

individual
sentenced

judges

the

trusted
to

authority

substantial

violent and repeat

175, reprinted in 1984

_________ __

the

see that

Commission

recidivist

more

disregard

the

than

defendants were

maximum term authorized,

that Congress intended to

to

that

While this statement clearly suggests

at or near the

way suggests

view

be imposed on repeat

U.S.C.C.A.N. at 3358.
that

Committee's

consistent and rational

it in no

grant the Commission

sentencing

enhancements

provided in 21 U.S.C.

841 and other similar statutes.

-4747

would

write

off

"the word

`categories'

as

some sort

of

linguistic accident or awkward locution."

With all due respect, I find the phrase "categories

of

defendants"

much less

troubling.

First,

note that

"categories" is inherently a general, imprecise term, whereas

believe "maximum"

Hence,

is naturally

I find it eminently

a specific,

more plausible, in this context,

to read the phrase "categories of defendants"

referring

enhanced

term

to

classes

of

precise one.

defendants

narrowly -- as

subject

to

specific

penalties -- than it is to read the phrase "maximum

authorized" broadly -- as referring to, with respect to

certain defendants,

something less

than the maximum

(i.e.,
____

under the USM interpretation, some defendants who are subject

to

enhanced

penalties will

be

sentenced

unenhanced maximum, which, with respect

at or

near

the

to those defendants,

is not the authorized statutory maximum).

Second,

do

"categories of defendants"

indeed

believe

that

is perhaps better

the

phrase

understood, to

use my colleagues' phraseology,

an

awkward locution."

added

994(h) to

drafting process.

the

As

as a "linguistic accident or

I note infra,
_____

enabling

at 11-13, Congress

legislation late

The subsection derives

provision attached to other legislation that

in

the

from a sentencing

directed judges

to sentence career criminals to the maximum possible penalty.

In attaching it to the enabling legislation, Congress rewrote

-4848

the provision borrowing the phrase "categories of defendants"

and other language from the already-existing

In contrast with

phrase

that

"categories of

subsection's

instructs the

of

defendants"

994(h),

defendants" is

structure.

994(i).20

994(i)'s usage of the

sensible in

First,

Commission to assure that

shall receive

994(i)

"substantial"

sentences, and

28 U.S.C. 994(i) provides:

The Commission shall assure that the

guidelines

specify

substantial

term

of

broadly

various "categories

____________________

20.

light of

sentence

to

imprisonment

a
for

___________
categories

____
of

defendants

in which

the

defendant --

(1) has

a history

Federal,

of two or

State,

or

for

offenses

convictions

more prior

local

felony

committed

on

different occasions;
(2) committed
pattern
the

of

the offense

as part

criminal conduct

defendant

derived

of a

from which

substantial

portion of the defendant's income;

(3) committed the offense
of

conspiracy

persons

with

engaging

racketeering

in furtherance
three

in

activity

or

more

pattern

of

in

which

the

defendant participated in a managerial or

supervisory capacity;
(4)

committed a

constitutes
pending

crime of
felony

violence that

while on

release

trial, sentence or appeal from a

Federal, State, or local felony for which

he was ultimately convicted; or
(5)

committed a felony that is set forth

in

section

Comprehensive
Control

401

or

Drug Abuse

Act of 1970

1010

of

the

Prevention and

(21 U.S.C. [

] 841

and 960), and

that involved

trafficking

in a substantial quantity of a controlled

substance.

-4949

then

it

defendants

proceeds to

list

five

different "categories"

to which the instruction applies.

994(h)'s usage

supra, note 16.

_____

of the term

First,

of

In contrast,

"categories" is peculiar.

994(h)'s sentencing command

See,
___

(i.e.,
____

"at or

near the

maximum term

than

994(i)'s

broad command

authorized") is

(i.e., "substantial"),
____

second, its structure is different:

enumerate

separate

command applies.

the

two

categories of

Hence,

subsections

read together.

is

language,

994(h)

best

should

be read

it does not sequentially

defendants

understood

that the two

other words,

Congress awkwardly

criminals, otherwise

should

In

and,

to

which the

I believe the parallel language

revealing Congress's intent

be

more precise

subject to

be sentenced, not just

the maximum penalty possible.

out

principally

subsections should

by using

expressed

as carving

as

in

its

the parallel

intent that

a narrow

the broader

subset of

994(i), that

substantially, but at or near

In

any event,

"maximum term

mean

the

because I

believe that

the phrase

authorized" cannot plausibly be interpreted to

unenhanced

maximum,

likewise

believe

that

"categories of defendants" must be read narrowly.

II.
II.

Deciding that the phrase "maximum

means,

in

the

appropriate

statutory maximum does

term authorized"

circumstances,

not end

-5050

the analysis.

the

enhanced

It is

still

necessary

to

consider

whether

the

propounded by Amendment 506 nonetheless

directive

to

sentence career

offenders

sentencing

scheme

satisfies Congress's

"at

or near"

the

maximum.21

The defendants

contend that, when read in context,

994(h)'s "at or near" directive

see
___

United States v. Fountain,

_____________
________

is unclear and ambiguous,

885 F. Supp.

185, 188 (N.D.

Iowa 1995), and, accordingly, this court should

Commission's

defendants

reasonable

argue

that

interpretation.

994(h)

is

defer to the

Moreover,

only

one

of

the

many

congressional

directives

responsibility

and

sentencing

duty

guidelines.

which

the

Commission

had

the

to harmonize

in

promulgating the

Specifically,

the

defendants note

that one of the main purposes of the Sentencing Commission is

to reduce "unwarranted disparities" in

assure

that

individuals

receive similar sentences.

maintain

that Amendment

who

have

sentencing and, thus,

committed similar

acts

See 28 U.S.C. 991(b)(1)(B).

___

They

506 achieves

this goal

because it

eliminates "unwarranted" disparity resulting from exercise of

unchecked prosecutorial discretion in deciding whether or not

to seek

841.

the enhanced penalties

provided in statutes

like

____________________

21.

do not restate the

Offender guideline

facts or describe

operates.

For a thorough

how the Career

discussion of

these matters see Majority Opinion at 4-11.

___ ________________

-5151

In response, the government contends that Amendment

506

is invalid

because it

is

inconsistent with

the plain

language of 28 U.S.C.

the sentencing

994(h).

ranges

resulting

amendment do not satisfy

offenders

should receive

of

the

near" the maximum term

more

discretion in this

unambiguous

definitions of

U.S.C.

precise

career offenders

the statutory maximum

Though Congress undoubtedly could

in

context, the

and

994(h), I disagree

its command that

sentences "at or near"

is unclear and ambiguous.

fairly

application

I agree with the government.

defendants that

been

argues that

994(h)'s clear command that career

First, in analyzing 28

have

from

should be sentenced "at or

authorized.

with the

The government

limiting

phrase "at or

narrow ordinary

the term "near"

the

Commission's

near" has

meaning.

specify that

Common

an object

(or

limit) is "near" another if it is "not a far distan[ce] from"

or "close to" the

other object (or limit).

New International Dictionary

______________________________

Webster's Third
_______________

(1986); accord
______

The American
_____________

Heritage Dictionary (2d College Ed. 1985) (defining "near" as

___________________

"To, at, or within a

time.").

short distance or interval in space

The Commission's attempt

near" directive (as

to implement the

ultimately expressed in Amendment

however, does not satisfy this

standard.

or

"at or

506),

For example, under

Amendment 506, a defendant who qualifies as a Career Offender

and whose punishment

has been enhanced pursuant to 21 U.S.C.

-5252

841(b)(1)(C) to a maximum possible

is

assigned a

base

sentencing range

months.

Such a range

maximum

possible

Notwithstanding

"near"

at the

penalty of thirty years

is but 58.3

term

of

thirty

of

only 210

to 72.78 percent

years

to

262

of the

(360

months).

the term

a certain

amount of

ambiguity in

margins, I

think it

plainly obvious

that a

guideline interpretation that, even before any adjustment for

acceptance

of responsibility,

prescribes such

a sentencing

range does not assure

that defendants will be sentenced

"at

or near" the maximum term authorized.

Moreover, a

comparison of

makes clear beyond doubt

994(h) with

994(i)

that Congress intended the language

"at or near" to limit narrowly the Commission's discretion to

prescribe sentencing ranges for career offenders.

994(i), which

Senate

was added to

Subsection

the enabling legislation

prior to the addition

of

994(h),22

in the

provides that

____________________

22.

The guidelines enabling legislation,

in 1984, has

a long

ultimately enacted

and complex legislative

generally Kate Stith &

_________

history.

See
___

Steve Y. Koh, A Decade of Sentencing

_______________________

Guidelines: Revisiting the Role of the Legislature, 28 Wake

____________________________________________________
Forest L. Rev. 223
in

1984 traces

(1993).

its

originally introduced

Indeed, the

roots to

by Senator

legislation enacted

sentencing reform

measure

Kennedy in 1975.

Id.

at

___
225.

Subsection 994(i) first appeared in a Senate version of

the legislation in 1978.

124

See S. 1437, 95th Cong., 2d Sess.

___

(1978) (proposed tit. 28,

(1978).

The Senate subsequently

version of the legislation

1st Sess.
Rec.

22,883

7 (1983
(1983).

guidelines enabling
Pub.

994(h)); 124 Cong. Rec. 1463

L. No.

98-473,

amended 28 U.S.C.

added

in 1983.

to a later

See S. 668, 98th Cong.,

___

(proposed tit. 28,

Both

994(h)

994(h)); 129

provisions were

part

legislation ultimately enacted

217, 98
994(h),(i)).

-5353

Stat. 2021-22

cong.
of

the

in 1984.

(codified as

the "Commission

shall assure

sentence to a substantial
___________

offenders,

that the guidelines

term of imprisonment" for habitual

____

racketeers, defendants

released on bail,

994(i) (emphasis

specify a

and felony

added).23

who

commit crimes

drug offenders.

while

28 U.S.C.

Subsection 994(i) applies

to a

broad class of defendants including all defendants subject to

994(h).

Id.
___

994(i)(1) (subsection applies, inter alia,

_____ ____

to all defendants who

Federal, State,

committed on

the

or

have "a history of

local felony

that Congress

convictions

different occasions").

other hand, applies

felt must

two or more

offenses

Subsection 994(h),

to a narrower

on

subset of defendants

be punished even

In offering the original version of

for

prior

more stringently.

994(h), Senator Kennedy

argued

that

criminals

will

be

the

was

must be put on notice

punished

offenses, without
_______

(emphasis

amendment

by

because

"Career

that their chronic violence

maximum prison
_______ ______

parole."24
______

added).

needed

sentences
_________

128 Cong. Rec.

By adding

for

their

26,518 (1982)

994(h), Congress

sought to

indicate that certain career offenders, with serious criminal

histories, should

receive not simply a

"substantial term of

____________________

23.

See, supra, note 20.

___ _____

24.

Section

994(h) derives

offered in 1982

amendment

criminal

shall

an

amendment

by Senator Kennedy to S. 2572.

225 at 175, reprinted

_________
1982

from

originally
See S. Rep.
___

in 1984 U.S.C.C.A.N. 3182, 3358.

__

provided in
receive

relevant

the maximum

part
or

that "A

The
career

approximately

the

maximum penalty

for the

current offense."

128 Cong.

Rec.

26,511-12 (1982).

-5454

imprisonment" as prescribed by 994(i), but

imprisonment

that

was at

Indeed,

if

994(h)

general

admonishment

or

is only,

--

which

instead a term of

near

the statutory

maximum.

as

the defendants

argue, a

the

Commission

has

broad

discretion to

harshly than

implement --

to punish career

it otherwise would, the

direction not already provided by

Second,

legislation

the

undercuts

basic

the

offenders more

subsection adds little

994(i).25

structure

of

the

defendants' argument

enabling

that

this

court should defer to the Commission's attempt to harmonize

994(h)

with

directives.

other

The

purportedly

goal of

disparities is, indeed, one

that

motivated

Commission.

restated

the

avoiding

See 28 U.S.C.
___

unwarranted sentencing

one of

creation

of

991(b)(1)(B).

the

U.S.C.

the

994(f), it is

Sentencing

Though Congress

directives to

Commission should "pay particular attention"

the guidelines, see 28

congressional

of the broad underlying purposes

Congress's

goal as

conflicting

which the

in promulgating

nonetheless a

___

general objective not specific

to any particular

guideline.

____________________

25.

The

point made here, that a comparison of

994(i) clearly
994(h) to

evinces

narrow the

Congress's intent

Commission's discretion

994(h) with
in enacting
in sentencing

career criminals, provides further support for my analysis in

part I.
on

In other words, it strikes me as quite odd to

the

Commission
maximum,

one

hand,

that

to

sentence

while

noting,

Commission complete

Congress
career
on

the

clearly

criminals at
other,

discretion to define

is.

-5555

that

note,

directed

the

or

near

the

it gave

the

what that

maximum

The directive expressed by

specific

command aimed at

994(h), on the other

a narrow class

are established as career criminals.

hand, is a

of defendants who

In essence,

994(h) is

a specific exception, dealing with a narrow class of criminal

offenders, that

the Commission

while

the

limits the

to create sentencing guidelines.

Commission

implementation

discretion otherwise granted

of

should

994(h)

congressional directives, to the

strive

with

to

other,

extent that

to

Therefore,

harmonize

more

the

general,

994(h) is

in

tension with them, I believe that the more general directives

must bend to

accommodate the more specific

994(h), rather

than the other way around.

Third, I find the

defendants' and the Commission's

disparity arguments to be largely irrelevant in this context.

One of

in

the principal justifications cited

promulgating

eliminate

the

Amendment 506

disparity

prosecutorial discretion

resulting

history,

perceived need

from

the

strongly

exercise

sources:

discretion,

of

not to seek

A review

suggests

of the

that

the

legislative

sentencing

disparity that Congress hoped to eliminate did not stem

prosecutorial

to

See U.S.S.G. App. C, Amendment

___

(November 1994).

however,

the

in deciding whether or

maximum penalty enhancements.

506, at 409

was

by the Commission

but,

(1) unchecked judicial

instead,

from

discretion in

two

from

other

formulating

sentences, and

(2) the

imposition

of indefinite

sentences

-5656

subject

reprinted
_________

to parole

in
__

specifically, it

board

1984

review.

U.S.C.C.A.N.

is apparent that

See S.
___

3182,

Rep. 225

3221.

at 38,

More

Congress was particularly

concerned

by

the

differing views

tended

to

fact

that

on the purposes

mete

different

judges

and goals of

out substantially

due to

punishment --

different

similarly situated individuals convicted

--

sentences

to

of the same crimes.

S. Rep. 225 at 41-46, reprinted in 1984 U.S.C.C.A.N. at 3224_________ __

29.26

It

overly

(or

is

not

even

apparent,

marginally)

prosecutorial

however,

that

concerned

Congress

with

discretion

was

disparities

resulting

from

over

charging

decisions.

Indeed, one of the principal criticisms expressed

against adopting the enabling legislation was that sentencing

guidelines

would simply

sentencing

from judges to prosecutors.

63,

shift the

reprinted in 1984 U.S.C.C.A.N.

_________ __

unchecked discretion

See S.
___

at 3246.

in

Rep. 225 at

Congress could

hardly

have been

arising

seeking

from exercise

to reduce

of prosecutorial discretion

legislation under consideration

that

discretion.

Congress

intended

sentencing disparities

Hence, the

the

when the

would, if anything,

enhance

unwarranted disparities

Commission

to

correct

were

that

those

____________________

26.

Senator Kennedy

necessary
national
judges

because
disgrace.

argued that sentencing

"[f]ederal
Under

criminal

current

convicted of similar crimes."

(1984).

-5757

sentencing

sentencing

mete out an unjustifiably wide

offenders

guidelines were
is

procedures,

range of sentences to
129 Cong. Rec. 1644

primarily

arising

from

judicial,

not

prosecutorial,

discretion.

Finally,

refers

to the

as I

have

noted,

enhanced penalty statutes

841) to which it applies.

994(h) specifically

(e.g. 21

These statutes, in turn, expressly

vest discretion in the prosecutor to seek application

criminal history enhancements.

it is

reasonable to

U.S.C.

See 21 U.S.C.
___

conclude that Congress

851.

of the

Thus,

understood that

its

command

to

sentence

at

or

near

the

maximum

authorized could result in disparate sentences for

situated

individuals

depending

on

whether

term

similarly

or

not

the

prosecutor had chosen to seek the enhanced penalties provided

by the underlying

that

result

directive

statutes.

from

an

I think the

implementation of

to sentence "at or

"unwarranted
___________

Thus,

disparities"

disparities

994(h)'s

near" the maximum

that

Congress

clear

are not the

charged

the

Commission to avoid.

While I am sympathetic to the concerns noted by the

Commission in

promulgating Amendment 506, I nonetheless find

it contrary to Congress's

the

amendment

expressed

is

intent

clear command.

inconsistent

to

limit

with

narrowly

In sum,

Congress's

the

I believe

clearly

Commission's

discretion

to

establish

sentencing

offenders.

Accordingly, I dissent with

IV.

-5858

ranges

for

career

respect to parts I-