
USCA1 Opinion

	




          April 16, 1996    UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                     ____________          No. 95-1751                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    ANGEL SANCHEZ,                                Defendant, Appellant.                                     ____________                                     ERRATA SHEET               The  opinion of  this  Court issued  on  April 8,  1996,  is          amended as follows:               Page 8, first line  of the last paragraph:   Delete "agreed"          and insert in place thereof "argued".          April 12, 1996    UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                     ____________          No. 95-1751                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    ANGEL SANCHEZ,                                Defendant, Appellant.                                     ____________                                     ERRATA SHEET               The  opinion of  this  court issued  on  April 8,  1996,  is          amended as follows:               Page 4, heading:  Change  the second line of the heading  by          deleting "U.S.C." and inserting in place thereof "U.S.S.G."               Page 6, line 11:   Delete "Committee's" and insert  in place          thereof "Commission's".               Page  9, third paragraph:  Delete all but the first sentence          and insert in place of deleted material the following:                 Section 1B1.10  is a  policy statement relative  to the               retroactivity of amendments.   Section 1B1.10(c)  lists               those   substantive   Amendments    intended   to    be               retroactive.  The two-level  reduction was added to the               Guidelines  by Amendment  515.   This Amendment  is not               listed in Section 1B1.10(c).               Page  9, fourth paragraph, lines  3-5:  Delete the bracketed          material and insert in place thereof:                 [Section 80001(b) of the  Violent Crime Control and Law               Enforcement Act of 1994 which directs the Commission to               implement Section 80001(a) (the safety valve statute)]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1751                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    ANGEL SANCHEZ,                                Defendant, Appellant.                                 ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            M.  Kristin Spath,  Attorney,  with whom  Bjorn  Lange,  Assistant            _________________                         ____________        Federal Defender, was on brief for appellant.            Jean B. Weld, Assistant United States  Attorney, with whom Paul M.            ____________                                               _______        Gagnon, United States Attorney, was on brief for appellee.        ______                                 ____________________                                    April 8, 1996                                 ____________________                      BOWNES, Senior Circuit Judge.  This is a sentencing                      BOWNES, Senior Circuit Judge.                              ____________________            case.   Defendant-appellant Angel  Sanchez was indicted under            21  U.S.C.    841(a)(1)  on  five  counts of  possessing  and            distributing cocaine base -"crack  cocaine."  He entered into            a plea agreement  with the government which  provided that he            would plead guilty to counts one through four; count five was            dismissed.   Prior to  signing the plea  agreement, defendant            reserved   his   right  to   challenge   at   sentencing  the            cocaine/cocaine  base sentencing  disparity.   Defendant  was            sentenced to 108 months' incarceration with a  recommendation            that  he be  placed in  a 1,000  hour drug  treatment program            while in prison.  Part of the sentence was supervised release            for  five years  after  release from  prison.   He  was  also            assessed $200.00.                      Defendant raises three issues on appeal:                      (1)  The  district  court  erred  in                           refusing    to   consider    at                           sentencing   expert   testimony                           proffered   by   defendant   in                           support of his "rule of lenity"                           challenge   to   the   enhanced                           statutory   penalties   in   21                           U.S.C.    841(B)(1)(b)(III) for                           "cocaine base".                      (2)  The  district  court  erred  in                           failing to  consider a downward                           departure under U.S.S.G. 5K2.0.                      (3)  The defendant was entitled to a                           two  level   reduction  of  the                           applicable  offense  level,  in                           order    to    implement    the                           statutory  intent  of  the  so-                           called      "safety      valve"                                         -2-                                          2                           provisions of the Violent Crime                           Control and Law Enforcement Act                           of    1994,    18   U.S.C.                                3553(f)(1)-(5).                         The Rule of Lenity Challenge to the                          The Rule of Lenity Challenge to the                          ____________________________________                                Enhanced Penalties in                                 Enhanced Penalties in                                 ______________________                   21 U.S.C.   841(b)(1)(b)(III) For Cocaine Base.                   21 U.S.C.   841(b)(1)(b)(III) For Cocaine Base.                   _______________________________________________                      This issue,  the centerpiece of  defendant's brief,            is  foreclosed by our decision in United States v. Camilo, 71                                              _______________________            F.3d  984 (1st Cir.  1995), which was  decided after briefing            and  oral argument in this  case.  An  identical challenge to            the  enhanced  penalties  for  crack cocaine  was  raised  in            Camilo.  Id. at 989-90.  We rejected it for two reasons:            ______   ___                      First, the rule  of lenity argument fails                      for essentially the same reason that this                      circuit previously  rejected the argument                      that scientific equivalence requires that                      crack   offenders   be  given   the  same                      sentences as those who traffic in cocaine                      powder.  United States v. Singleterry, 29                               ____________________________                      F.3d 733, 740 (1st Cir. 1994).                      . . . .                         Second, in light of recent legislative                      developments   we   conclude   that   the                      Sentencing Commission cannot  be said  to                      have  failed in  its  statutory  duty  to                      investigate the distinction between crack                      and cocaine  powder.  In response  to the                      Sentencing  Commission's  April 13,  1995                      vote, the House of Representatives joined                      the  Senate on October 18, 1995 in voting                      to retain the current  mandatory sentence                      for   possession    of   crack   cocaine,                      maintaining disparate sentences for crack                      and  powder  cocaine  possession.     See                                                            ___                      Pub.L. No.  104-38,   1,  109 Stat.  334,                      334 (1995).  And on October 30, 1995, the                      President  signed  this  bill  into  law.                      These  actions   preempt  the  Sentencing                                         -3-                                          3                      Commission's April 13,  1995 decision  to                      eliminate  the distinction  between crack                      and cocaine powder from taking  effect on                      November  1,  1995.    See  28  U.S.C.                                                ___                      994(p).            Id. at 990.            ___                        Failure of the District Court to Grant                        Failure of the District Court to Grant                        ______________________________________                     a Downward Departure Under U.S.S.G.   5K2.0.                     a Downward Departure Under U.S.S.G.   5K2.0.                     ____________________________________________                      The law  in this Circuit on  downward departures is            clear.  We  lack jurisdiction  to review an  appeal which  is            based on the discretionary  judgment of the sentencing judge.            We do,  however, have jurisdiction  to consider a  refusal to            depart  downward where  the sentencing  judge's decision  was            based  on the mistaken belief  that he was  prohibited by law            from doing so.  See United States v. Pierro, 32 F.3d 611, 619                            ___ _______________________            (1st Cir. 1994), and cases cited therein.                      This case,  however, does not hinge  on whether the            sentencing judge made a  discretionary decision not to depart            downward or one based  on his perception that he  was legally            constrained from doing so.                      Section   5K2.0  of  the   Guidelines  provides  in            pertinent part:                      Grounds for Departure (Policy Statement)                      _____________________                      Under 18 U.S.C.    3553(b) the sentencing                      court  may impose a  sentence outside the                      range   established  by   the  applicable                      guideline, if the court finds "that there                      exists   an  aggravating   or  mitigating                      circumstance of  a kind, or to  a degree,                      not  adequately taken  into consideration                      by    the   Sentencing    Commission   in                      formulating  the  guidelines that  should                      result  in  the  sentence different  from                                         -4-                                          4                      that described." . .  .  The  controlling                      decision as to whether and to what extent                      departure  is warranted can  only be made                      by the courts.                      Defendant's  argument at  sentencing and  before us            was  that a  downward departure  was warranted under    5K2.0            because   of  a  circumstance   not  adequately   taken  into            consideration by  the  Sentencing Commission  in  formulating            Guideline   2D1.1(c),  (the   Drug  Quantity  Table).     The            circumstance relied  on was "the findings and recommendations            of  the Commission's  congressionally mandated  study of  the            disparity between  powder and 'crack' cocaine."   Defendant's            Brief at 14.                      In  rejecting  defendant's  motion  for  a downward            departure the district judge stated:                         THE  COURT:  The Court appreciates the                      fact that the  Sentencing Commission,  at                      the  request of Congress,  has been asked                      to review the  100-to-1 ratio.   However,                      all we have at this  point in time is the                      Sentencing  Commission's recommendations.                      And in the opinion of the Court the Court                      must  live within the current law and the                      current Guidelines as  written now;  that                      it would be  inappropriate for the  Court                      essentially  to  adopt   as  new   policy                      matters     which     only     constitute                      recommendations and have  not been  acted                      upon by  the United States Congress.   We                      do not  know what  Congress  may do  with                      those recommendations;  whether they will                      be rejected in toto, whether they will be                      adopted  in toto, or  whether they may be                      adopted  with changes.   So  it would  be                      pure speculation for  the Court really to                      operate  on  the  assumption  that  these                      changes  are going  to become  policy and                      law.                                         -5-                                          5                      Defendant argues that this statement shows that the            sentencing judge believed that  he lacked the legal authority            to depart from the  guideline range and thus his  decision is            appealable as a mistake of law.  The government contends that            the  judge   exercised  his   discretion  in  not   departing            downwards,   focusing   on   the   phrase,   "it   would   be            inappropriate."                      We need  not settle this argument  because it makes            no  difference.  We rule  that the circumstance  relied on by            defendant,  for  a  downward  departure,  the  findings   and            recommendations  of  the  Sentencing  Commission  relative to            changing  the sentence  disparity between  cocaine  and crack            cocaine, is  not a  ground for  departure under    5K2.0.   A            Sentencing Commission's recommendation to the Congress is not            the  kind  of  "circumstance"  that   the  provision  covers.            Moreover,  we  cannot blind  our eyes  to  the fact  that the            Congress shot down the Commission's recommendation.  In other            words,  we affirm the ruling of the district judge whether it            was discretionary or not.                    Whether Defendant was Entitled to a Two-Level                    Whether Defendant was Entitled to a Two-Level                    _____________________________________________                  Reduction Because of the "Safety Valve" Provisions                  Reduction Because of the "Safety Valve" Provisions                  __________________________________________________                      of the Violent Crime Control Act of 1994.                      of the Violent Crime Control Act of 1994.                      _________________________________________                      We   start  with   the  so-called   "safety  valve"            provisions of  the Violent Crime Control  and Law Enforcement            Act of 1994.  18 U.S.C.   3553(f) provides:                         (f)    Limitation on  applicability of                         (f)    Limitation on  applicability of                      statutory  minimums  in certain  cases.--                      statutory  minimums  in certain  cases.                                         -6-                                          6                      Notwithstanding  any  other provision  of                      law,  in  the  case of  an  offense under                      section  401,   404,   or  406   of   the                      Controlled Substances Act (21 U.S.C. 841,                      844, 846) or section  1010 or 1013 of the                      Controlled  Substances Import  and Export                      Act (21 U.S.C. 961, 963), the court shall                      impose a sentence pursuant  to guidelines                      promulgated   by    the   United   States                      Sentencing  Commission under  section 994                      of  title   28  without  regard   to  any                      statutory minimum sentence, if  the court                      finds at sentencing, after the Government                      has been afforded the opportunity to make                      a recommendation, that--                             (1)  the  defendant does  not                           have   more  than   1  criminal                           history  point,  as  determined                           under       the      sentencing                           guidelines;                              (2)  the  defendant did  not                           use   violence    or   credible                           threats of  violence or possess                           a  firearm  or other  dangerous                           weapon   (or   induce   another                           participant   to   do  so)   in                           connection with the offense;                             (3)    the  offense  did  not                           result  in   death  or  serious                           bodily injury to any person;                              (4) the defendant was not an                           organizer, leader,  manager, or                           supervisor  of  others  in  the                           offense,  as  determined  under                           the  sentencing guidelines  and                           was not engaged in a continuing                           criminal enterprise, as defined                           in 21 U.S.C. 848; and                              (5)  not later than the time                           of the  sentencing hearing, the                           defendant     has    truthfully                           provided to  the Government all                           information  and  evidence  the                           defendant  has  concerning  the                           offense  or offenses  that were                                         -7-                                          7                           part  of  the  same  course  of                           conduct or of  a common  scheme                           or plan, but the fact  that the                           defendant  has  no relevant  or                           useful  other   information  to                           provide or  that the Government                           is   already   aware   of   the                           information shall  not preclude                           a  determination  by the  court                           that the defendant has complied                           with this requirement.                      In  arriving  at  the  incarceration  time  of  108            months, the judge found that  defendant met all the  criteria            of the safety valve  provisions.  Defendant was sentenced  on            July  11,  1995.    The  Sentencing  Commission  proposed  an            amendment to   2D1.1(b)  (specific offenses  characteristics)            on May 10, 1995, to become effective November 1, 1995, unless            modified  or  rejected  by  the Congress,  neither  of  which            occurred.  The proposed amendment, therefore, became law.  It            is part (4) of   2D1.1(b).  It provides:                      (4)  If  the   defendant  meets  the                           criteria    set     forth    in                           subdivisions (1)-(5)  of  5C1.2                           (Limitations  on  Applicability                           of Statutory  Minimum Sentences                           in   Certain  Cases)   and  the                           offense level determined  above                           is   level   26   or   greater,                                        26                           decrease by 2 levels.1                                       2            At sentencing  the judge  refused to apply  the then-proposed            guideline because it had not yet been enacted.                                            ____________________            1.  Subdivisions (1)-(5) of   5C1.2 state verbatim the safety            valve provisions of 18 U.S.C.   3553(f).                                         -8-                                          8                      The  question before  us  is not  what the  parties            agrued and  briefed:   whether the proposed  amendment should            have  been applied.   The  issue now  is whether  the enacted            guideline should be applied retroactively.  Unfortunately for            defendant, the answer is "no."                      There  is a  solid  line of  cases in  this Circuit            holding that Guideline  amendments are applied  retroactively            if they clarify a  Guideline but are not  so applied if  they            substantively  change  a Guideline.    See  United States  v.                                                   ___  _________________            LaCroix,  28 F.3d 223, 227 n.4 (1st Cir. 1994); United States            _______                                         _____________            v.  Prezioso,  989 F.2d  52, 53  (1st  Cir. 1993);  Isabel v.            ____________                                        _________            United States, 980 F.2d 60, 62 (1st Cir. 1992); United States            _____________                                   _____________            v. Havener, 905 F.2d 3, 4-8 (1st Cir. 1990).            __________                      The  Guideline  amendment  appears,   without  much            doubt,  to be substantive.  It added an additional and wholly            new part to  Guideline   2D1.1(b).   It does not  clarify the            provisions of   5C1.2;  it mandates a decrease of  two levels            if these provisions are  met and the  offense level is 26  or            greater.                      In addition to  our own analysis, we note  that the            Sentencing Commission  did not consider this  amendment to be            retroactive.  Section 1B1.0 is a policy statement relative to            the retroactivity  of  amendments.   Section 1B1.10(c)  lists            those substantive Amendments intended to be retroactive.  The                                         -9-                                          9            two-level reduction  was added to the  Guideline by Amendment            515.  This Amendment is not listed in Section 1B1.1(c).                      Moreover, the Amendment does not state that it is a            clarifying Amendment.  Amendment 515 states:  "this amendment            adds  a  new  subsection  to   2D1.1  to  implement  [Section            80001(b) of the Violent Crime Control and Law Enforcement Act            of  1994 which  directs the  Commission to  implement Section            80001(a) (the safety valve statute)] by providing a two-level            decrease in  offense level for cases meeting the criteria set            forth  in    5C1.2(1)-(5).     The  effective  date  of  this            amendment is November 1, 1995."                      We can think of no reason for holding the Amendment            to be retroactive.                      The judgment  of the district court  is affirmed in                      The judgment  of the district court  is affirmed in                      ___________________________________________________            all respects.            all respects            ____________                                         -10-                                          10
