Link to 8th Cir. Opinion
The Court of Appeals for the Eighth Circuit held that the United States District Court for the Eastern District of Missouri lacked authority to lower the sentence of defendant Robert Collier for possession with intent to distribute crack cocaine.[2] Although the United States Sentencing Guidelines (USSG) had been amended to reduce the offense levels for crack cocaine offenses,[3] this amendment did not lower Collier’s sentencing range because his offense level was taken from the career offender guideline, not the crack cocaine guideline.[4]
I. Facts & Holding
On January 8, 2004, a St. Louis police officer observed Collier place something in his coat pocket and approached him. After the officer conducted a warrant check and found active warrants for Collier, the officer placed him under arrest. The officer then found 22.81 grams of crack cocaine during a search incident to arrest.[5] Collier pled guilty to possession with intent to distribute cocaine base on August 30, 2005.[6]
Before sentencing, the United States Probation Office made a presentence investigation report (PSR), which calculated Collier’s offense level at 31, based on a three-level reduction for acceptance of responsibility, Collier’s criminal history, and multi-level enhancement for qualification as a career offender under USSG section 4B1.1.[7] Collier was considered a career offender under USSG section 4B1.1 because he had committed a controlled substance offense and had two prior controlled substance state felony convictions.[8] Collier’s offense level of 31 called for an advisory sentence of 188 to 235 months imprisonment pursuant to the USSG.[9] At the sentencing hearing, however, the court sentenced Collier to 72 months, citing Collier’s military service and honorable discharge and noting his main problem was cocaine addiction.[10]
On the federal government’s appeal, the Eighth Circuit remanded for resentencing.[11] The district court imposed a new sentence of 120 months, again citing Collier’s military service and cocaine addiction.[12] In April 2008, Collier moved for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2), claiming that Amendment 706, which reduced offense levels in crack cocaine cases by two levels, required a reduced sentence.[13] The district court reduced Collier’s sentence to 70 months.[14] The Eighth Circuit vacated the reduced sentence and reinstated the 120 month sentence of imprisonment.[15] It reasoned that the PSR’s recommended sentence range was “ultimately based” on the “section 4B 1.1 career offender enhancement,” which the district court had adopted without change.[16] Because Collier’s sentence was largely based on him being a career offender, “his sentence was unaffected by Amendment 706 and . . . [t]he district court lacked authority to reduce Collier’s sentence.”[17]
II. Legal Background
USSG section 4B1.1 treats someone as a “career offender” if
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.[18]
A “controlled substance offense” is a federal or state law offense that “prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.”[19]
In United States v. Booker, the United States Supreme Court struck down a USSG provision that required federal judges to impose a sentence within a USSG sentencing range,[20] thus making the USSG only advisory for judges.
Under 18 U.S.C. § 3582(c)(2), a court can reduce a defendant’s sentence when the Sentencing Commission later reduces a sentencing range under which the defendant had previously been sentenced.[21] With Amendments 706, 711, and 713 to USSG section 2D1.1, the Sentencing Commission retroactively lowered the sentencing range for certain crack cocaine offenses.[22] The Eighth Circuit has specifically determined that Amendment 706 “is not applicable to defendants who were sentenced under the career offender provisions of the Guidelines.”[23]
III. Commentary
This case involves a fairly simple application of the U.S. Sentencing Guidelines to a repeat offender. But it also illustrates to what extent a federal district court judge can lower the sentence of a convicted person. The U.S. Sentencing Guidelines are not mandatory, as shown by the fact that Collier’s 70- and 120-month sentences were far below the recommended 188-month minimum. Despite being advisory, these guidelines, as interpreted by the Eighth Circuit, impose some restrictions on a judge’s ability to be lenient towards an offender. In particular, those sentenced based on their repeat offender status will probably not be treated lightly by this Circuit unless the Sentencing Commission explicitly reduces the offense level applied to repeat offenders.
-Kimberly E. Naguit
[1] 581 F.3d 755 (8th Cir. 2009).
[2] Id. at 759.
[3] See id. at 757 (citing U.S. Sentencing Guidelines Manual app. C, amend. 706).
[4] Id. at 758 (citing United States v. Collier, 191 Fed. App’x. 514, 514-16 (8th Cir. 2006) (unpublished)).
[5] Id. at 756.
[6] Id.
[7] Id. at 756-57 (citing U.S. Sentencing Guidelines Manual §§ 2D1.1(c)(6), 3E1.1, 4B1.1 (2004)).
[8] Collier, 191 Fed. App’x. at 515.
[9] 581 F.3d at 757.
[10] Id. (quoting Sentence Hearing Transcript at 7-12, Nov. 17, 2005).
[11] Id. (citing Collier, 191 Fed. App’x. at 515-16).
[12] Id. (quoting Resentencing Hearing Transcript at 15, Oct. 12, 2006)).
[13] Id. (citing U.S. Sentencing Guidelines Manual app. C, amend. 706). Another amendment made Amendment 706 retroactively effective. See id. n.1 (citing U.S. Sentencing Guidelines Manual app. C, amend. 713; United States v. Gamble, 572 F.3d 472, 474 (8th Cir. 2009)).
[14] Id.
[15] Id. at 759.
[16] Id.; see also id. at 758 (discussing the PSR’s recommendations).
[17] Id.
[18] U.S. Sentencing Guidelines Manual § 4B1.1(a) (2004).
[19] Id. at § 4B1.2(b).
[20] 543 U.S. 220, 245 (2005). The provision was 18 U.S.C. § 3553(b)(1).
[21] 581 F.3d at 758.
[22] Id. (citing United States v. Gamble, 572 F.3d 472, 474 (8th Cir. 2009)).
[23] Id. (citing See United States v. Tingle, 524 F.3d 839, 840 (8th Cir.), cert. denied, 129 S. Ct. 473 (U.S. 2008) (“[T]he Sentencing Commission . . . did not lower the sentencing range for career offenders under USSG § 4B1.1 . . . .”)).
