                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-27-2007

USA v. Floyd
Precedential or Non-Precedential: Precedential

Docket No. 06-1513




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                                             PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          No. 06-1513



              UNITED STATES OF AMERICA


                              v.


                     BENNAE FLOYD,


                          Appellant.



       On Appeal from the United States District Court
            for the Middle District of Pennsylvania
                   (D.C. No. 02-cr-00295-6)
       District Judge: Honorable Christopher C. Conner



                 Argued on January 22, 2007


 Before: SCIRICA, Chief Judge, FUENTES and CHAGARES,
                      Circuit Judges.


                  (Filed: August 27, 2007)


John A. Abom (Argued)
Abom & Kutulakis
36 South Hanover Street
Carlisle, PA 17013

       Attorney for Appellant

Christy H. Fawcett
Lorna N. Graham (Argued)
Office of the United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

       Attorney for Appellee



                  OPINION OF THE COURT


FUENTES, Circuit Judge.

       In this sentencing appeal, the District Court granted a
downward departure on account of Bennae Floyd’s substantial
assistance to the government, but sentenced her within the
originally calculated Guidelines range. In doing so, the Court
departed from a previously imposed sentence that we vacated in a
prior appeal. For the reasons that follow, we will again vacate and
remand for resentencing.

            I. Factual and Procedural Background

       In 2004, Floyd was indicted on various counts arising from
a conspiracy to distribute at least 50 grams of crack cocaine and 5
kilograms of cocaine powder.1 Pursuant to a plea agreement, Floyd
pleaded guilty to just one count of traveling interstate or causing
others to travel interstate to facilitate drug trafficking, which
carried a maximum sentence of 60 months in prison. 18 U.S.C. §


       1
         We previously recited a more detailed procedural history
of this case in United States v. Floyd, 428 F.3d 513 (3d Cir. 2005)
(“Floyd I”).

                                -2-
1952(a)(3). In exchange for pleading guilty, the government
agreed to dismiss the remaining charges and to request a downward
departure based on Floyd’s substantial assistance with the
government’s prosecution of her co-defendants.2

       At Floyd’s sentencing hearing, however, the government did
not move for a downward departure—in the government’s view, its
dismissal of Floyd’s remaining charges resulted in a sufficient
reduction in her sentence.3 With no departure motion before it, the
District Court calculated an applicable Guidelines range of 41 to 51
months and sentenced Floyd to 48 months in prison.

        Floyd appealed, arguing that the government breached its
promise to move for a downward departure. Floyd I, 428 F.3d at
514. We agreed with Floyd, reasoning that “the [g]overnment did
not reserve the right not to recommend a downward departure on
the ground that the charge bargain turned out to be more favorable
than it had originally anticipated.” Id. at 517. We remanded to the
District Court to determine whether Floyd’s assistance was
“substantial.” Id. at 518. On remand, however, the government
chose to forego an evidentiary hearing and simply moved for the
downward departure.

       At Floyd’s resentencing, the District Court incorporated its
prior rulings that established a Guidelines range of 41 to 51
months. With respect to the government’s motion to depart, it


       2
         Guidelines Section § 5K1.1 provides that the government
may move for a downward departure when a defendant has
provided “substantial assistance in the investigation or prosecution
of another person who has committed an offense.” U.S. Sentencing
Guidelines Manual § 5K1.1 (2003). The day before entering her
plea, Floyd met with a co-defendant to persuade him to plead
guilty. That co-defendant, as well as two others, decided to plead
guilty shortly thereafter.
       3
        Had Floyd been convicted of all charges set forth in the
indictment, she would have faced a potential Guidelines range of
292 to 365 months, as compared to the 60-month statutory
maximum she faced on the drug trafficking charge.

                                -3-
ruled:

         Assessing all the factors enumerated in section
         5K1.1, and giving weight to the government’s
         evaluation of the defendant’s assistance, the court
         concludes that this case marginally meets the criteria
         for a downward departure from the original sentence
         of 48 months. Therefore the court will grant the
         motion.

(App. 47-48.) As a result, the Court reduced the original sentence
of 48 months by 6 months. The Court then stated that the sentence
“satisfie[d] the purposes” of the factors outlined in 18 U.S.C. §
3553(a), and, without altering Floyd’s sentence further, imposed
the sentence of 42 months. (App. 52-53.)

        Floyd’s attorney objected, arguing that despite having
granted the government’s departure motion, the Court had “in
essence . . . imposed a guideline sentence, just downward from the
initial sentence.” (App. 56.) Defense counsel asked whether the
Court had intended to “not downwardly depart . . . from the
guideline but simply depart downward from the initial sentence?”
(Id.) The Court responded that it had, in fact, granted a downward
departure, explaining:

         The decision of 42 months does reflect a downward
         departure, and we have the benefit of an original
         sentence, and rather than go through the calculation
         of what my offense level arrived at in terms of a
         guideline, I thought it better just to give you the
         specific sentence departure. So I don’t think it’s
         accurate to say that the departure doesn’t reflect the
         court’s assessment of the guideline range.

(App. 56-57.)4


         4
         The District Court also stated that “I departed downward
approximately 12.5 percent from the original sentence, and that
also reflects a departure in the offense level. A departure of 10
percent results in a guideline range of 36.9 to 45.9 months. 12

                                  -4-
       On appeal, Floyd asks us to remand for resentencing
because the District Court never provided her the benefit of the
departure it granted.

                          II. Discussion

                                A.

        The Supreme Court rendered the Sentencing Guidelines
advisory in United States v. Booker, 543 U.S. 220 (2005), and we
now review sentences for reasonableness, United States v. Cooper,
437 F.3d 324, 326-27 (3d Cir. 2005). In spite of these changes,
district courts must still calculate an applicable Guidelines range
and rule on any motions for departure. United States v. King, 454
F.3d 187, 196 (3d Cir. 2006). We have thus described post-Booker
sentencing as proceeding in the following three steps:

       (1)    Courts must continue to calculate a
              defendant’s Guidelines sentence precisely as
              they would have before Booker.

       (2)    In doing so, they must formally rule on the
              motions of both parties and state on the
              record whether they are granting a departure
              and how that departure affects the Guidelines
              calculation, and take into account our
              Circuit’s pre-Booker case law, which
              continues to have advisory force.

       (3)    Finally, they are required to exercise their
              discretion by considering the relevant §
              3553(a) factors in setting the sentence they
              impose regardless whether it varies from the
              sentence calculated under the Guidelines.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (internal
quotation marks, citations, and alterations omitted). This process
serves to clarify the basis for the sentence imposed. See United


percent would be slightly more than that.” (Id. at 56.)

                                -5-
States v. Jackson, 467 F.3d 834, 838-39 (3d Cir. 2006). The
calculations of the first two steps provide “a natural starting point”
from which a court exercises its discretion at step three. Cooper,
437 F.3d at 331.

        Under the advisory Guidelines regime, we have
distinguished between two types of sentence that diverge from the
original Guidelines range. See United States v. Vampire Nation,
451 F.3d 189, 195 & n.2 (3d Cir. 2006) (adopting distinction
between departures and variances). A traditional sentencing
“departure” diverges at step 2 from the originally calculated range
“for reasons contemplated by the Guidelines themselves.” Jackson,
467 F.3d at 837 n.2. In contrast, a “variance” diverges at step 3
from the Guidelines, including any departures, based on an exercise
of the court’s discretion under § 3553(a). Gunter, 462 F.3d at 247
n.10. Although a departure or a variance could, in the end, lead to
the same outcome—i.e., a reduction (or increase) in sentence as
compared to the originally calculated range—it is important for
sentencing courts to distinguish between the two, as departures are
subject to different requirements than variances.5

                                 B.

       The District Court sentenced Floyd without the benefit of
our recent decisions distinguishing between variances and
departures, and clarifying the preferred three-step sentencing


       5
         For example, in United States v. Colon, 474 F.3d 95 (3d
Cir. 2007), we held that a district court did not err in failing to
engage in a “ratcheting” procedure applicable to upward departures
because it imposed an above-Guidelines sentence as a variance, not
a departure. Id. at 99 & n.8. Moreover, in Vampire Nation, we
held that the notice requirement for upward departures would not
apply to variances. 451 F.3d at 197; see also Fed. R. Crim. Pro.
32(h). Importantly, we observed in Vampire Nation that
sentencing courts should “be careful to articulate whether a
sentence is a departure or a variance from an advisory Guidelines
range,” 451 F.3d at 198, and we have noted that this terminology
“aid[s] our review of criminal sentences.” Jackson, 467 F.3d at
837 n.2.

                                 -6-
process. The parties nevertheless agree that the disputed action of
the District Court involved a departure, rather than a variance, and
it is clear from the record that the Court granted a departure motion
under § 5K1.1, rather than varying Floyd’s sentence based on the
factors listed at § 3553(a). The parties dispute only whether the
Court properly effected the departure it granted.

        Floyd argues that a downward departure under the
Guidelines must result in a sentence below the otherwise applicable
range and that the District Court “misunderstood the definition of
a downward departure.” Floyd’s Br. at 9. In our view, her
challenge relates to whether the Court properly determined, at step
2 of the Gunter process, how its departure “affect[ed] the [original]
Guidelines calculation.” Gunter, 462 F.3d at 247.

      For the reasons that follow, we conclude that the manner by
which the District Court reduced Floyd’s sentence—that is, from
a prior sentence of 48 months to a new sentence of 42
months—was inconsistent with proper sentencing procedure.6


       6
         We note that Floyd does not challenge the District Court’s
specific method for reducing her sentence on account of the
departure motion. Post-Booker, § 5K1.1 continues to set out the
considerations relevant to the “appropriate reduction.” See United
States v. Torres, 251 F.3d 138, 146 (3d Cir. 2001) (listing the
factors to be considered). However, it does not specify the method
by which to effectuate that reduction, and we have suggested that
courts have latitude in choosing their methodology. United States
v. Faulks, 143 F.3d 133, 137 n.2 (3d Cir. 1998). Indeed, we have
reviewed § 5K1.1 departures effected by various methods. See,
e.g., Torres, 251 F.3d at 151 (approving § 5K1.1 departure of one-
month from bottom of calculated range); United States v. Casiano,
113 F.3d 420, 428, 431 (3d Cir. 1997) (affirming § 5K1.1 departure
of 3 offense levels, resulting in reduced range). Unlike § 5K1.1,
other departure provisions refer explicitly to departing by means of
a reduction in the applicable offense level or criminal history
category. See U.S.S.G. § 5K3.1 (2003) (allowing a downward
departure of no more than “4 levels” under “early disposition
program”); U.S.S.G. § 4A1.3 (2003) (providing for departures by
adjusting a defendant’s criminal history category).

                                 -7-
                                C.

        The parties agree that the Guidelines define the phrase
“downward departure” but dispute whether the § 5K1.1
“departure” granted by the District Court falls within that
definition.7 The Application Notes to Guideline § 1B1.1 define a
“[d]eparture” as the “imposition of a sentence outside the
applicable guideline range or of a sentence that is otherwise
different from the guideline sentence.” U.S.S.G. § 1B1.1 cmt.
n.1(E) (2003).8 The Notes offer two definitions of a downward
departure: either (1) a “departure that effects a sentence less than
a sentence that could be imposed under the applicable guideline
range” or (2) “a sentence that is otherwise less than the guideline
sentence.” Id.


        Under the first definition, the sentence reached after
granting a departure motion must be less than the bottom of the
otherwise applicable Guidelines range. In this case, after granting
the departure motion, the District Court arrived at a sentence of 42
months. Because this sentence was within the originally calculated
range of 41 to 51 months, it was clearly not a departure under the
first definition.



       7
        The Guidelines definitions cited by the parties were added
by amendment in 2003 pursuant to the Prosecutorial Remedies and
Tools Against the Exploitation of Children Today Act of 2003
(“the PROTECT Act”), Pub. L. No. 108-21, § 401(m), 117 Stat.
650, 675. The stated purpose of this amendment was simply to
“provide uniform definitions of departure, upward departure, and
downward departure.” U.S.S.G. app C, vol II, amend. 651, at 366
(2003).
       8
         A separate definition is provided for departures under §
4A1.3, a provision that addresses departures from the applicable
criminal history category. A departure under that provision is the
“assignment of a criminal history category other than the otherwise
applicable criminal history category, in order to effect a sentence
outside the applicable guideline range.” Id.

                                -8-
       The government argues, however, that the District Court’s
reduction in Floyd’s sentence falls within the second definition,
under which a downward departure is “otherwise less than the
guideline sentence.” It contends that the original 48-month
sentence was “the guideline sentence,” and that the Court’s 42-
month sentence was therefore “otherwise less than the guideline
sentence.” We do not agree. The government cites no authority
for departing from a previously-imposed, vacated sentence, and we
do not believe the second definition was intended to enable such a
procedure.

        Presumably, the government’s basis for considering the 48-
month sentence to be “the guideline sentence” is that it falls within
the applicable Guidelines range and was imposed pursuant to the
Guidelines. Under such a view, however, every sentence that is
lower than a within-range sentence can be considered “otherwise
less than the guideline sentence” (and thus a downward departure),
even when it is within the applicable range. This reading would
effectively nullify any distinction between simply reducing a
sentence within a range and formally departing from it.

        Moreover, this reading would conflict with what we stated
in our first opinion in this case. In remanding to the District Court,
we remarked that the government’s motion for a downward
departure under § 5K1.1 “offered Floyd the hope of a downward
departure from the sentencing guideline range.” Floyd I, 428 F.3d
at 518 (emphasis added). This language mirrored the terms of the
government’s agreement with Floyd, which stated that, should
Floyd provide “substantial assistance,” the government would
“request the Court to depart below the guideline range when fixing
a sentence.” (A22 (emphasis added).) Similarly, we have
previously stated that “when someone is promised the possibility
of ‘a departure from the guidelines’ under U.S.S.G. § 5K1.1, he or
she may reasonably expect to be afforded the possibility of a
sentence below the guideline range.” United States v. Faulks, 143
F.3d 133, 136 (3d Cir. 1998) (emphasis added); see also United
States v. Torres, 251 F.3d 138, 145 (3d Cir. 2001) (“Reducing a
sentence under § 5K1.1 . . . permits a sentencing judge to depart
from the Guidelines range based upon a defendant's substantial



                                 -9-
assistance.”) (emphasis added).9 Accordingly, the District Court
should have considered a departure from the calculated range of 41
to 51 months, not from the vacated sentence of 48 months. As the
Guidelines definitions suggest, such a departure would have
contemplated a sentence below 41 months, the bottom of that
range.10


      Furthermore, we observe that by departing from a
previously imposed sentence, rather than from the calculated
Guidelines range, the District Court effectively inverted the
sentencing procedure laid out in Gunter. Under the three-step


       9
         We note that the phrase “the guideline sentence” also
appears in § 5G1.1. Under that provision, a statutory minimum
becomes “the guideline sentence” when it is greater than the top of
the applicable Guidelines range. U.S.S.G. § 5G1.1(b) (2003). See
United States v. Booth, 432 F.3d 542, 547 n.7 (3d Cir. 2005)
(“[Had defendant’s] statutory minimum sentence . . . been greater
than his possible guideline sentence, [then] the 60-month statutory
minimum sentence would have been the guideline sentence
pursuant to section 5G1.1(b).”). Conversely, a statutory maximum
becomes “the guideline sentence” when it is lower than the bottom
of the Guidelines range. § 5G1.1(a).

       The second definition encompasses a downward departure
from such a statutory minimum. See United States v. Cordero, 313
F.3d 161, 165 (3d Cir. 2002) (affirming § 5K1.1 downward
departure from 120-month statutory minimum, as “the guideline
sentence” under § 5G1.1(b), rather than from Guidelines range of
63 to 78 months). A statutory minimum is not involved in this
case.
       10
          The District Court mentioned, as an alternative way to
view its reduction in Floyd’s sentence, that the sentence “also
reflect[ed]” a departure in the applicable range. (App. 56-57.)
This statement, however, does not make clear that the District
Court was actually considering below-range sentences on account
of the departure motion, particularly because the Court repeatedly
stated that it was departing from the original sentence.

                               -10-
process, district courts are asked to rule on departure motions
before balancing the § 3553(a) factors, and just after calculating the
applicable Guidelines range. Here, the District Court departed
from the sentence it originally imposed and therefore effectively
departed after balancing the factors (assuming the 48-month
sentence resulted from statutory balancing). This inversion of the
sentencing process makes it impossible for us to review effectively
the basis for the sentence. Cf. King, 454 F.3d at 196-97 (“[District
courts] should observe the requirement to state adequate reasons
for a sentence on the record so that this court can engage in
meaningful appellate review.”).

        This is not to say that a 42-month sentence is necessarily
unreasonable, or that the Court could not have reached that
sentence. The Court, for example, could have departed below the
41 to 51 month range (at step 2), and then varied upward within the
range by balancing the § 3553(a) factors (at step 3). We would
review for reasonableness. Moreover, as we noted in Faulks, the
Court could have “denied the motion for a departure and then gone
on to acknowledge [Floyd’s] substantial assistance by sentencing
lower in the guideline range than it would otherwise have done.”
143 F.3d at 137.11

        Here, after assessing the factors under § 5K1.1, the Court
stated that Floyd’s assistance “marginally [met] the criteria for a
downward departure from the original sentence of 48 months.”
(App. 48.) From this statement, it is unclear whether the Court
meant that Floyd’s assistance satisfied the requirements for a §
5K1.1 departure (thereby warranting consideration of a sentence
below the Guidelines range), or if Floyd’s assistance warranted
only a reduction within the range (but not a departure below it).
Without speculating about the Court’s preferred course of action,
we cannot determine which option it intended.

                          III. Conclusion


       11
         We recognized in Faulks that failing to engage in this
procedure—i.e., granting a § 5K1.1 motion but arriving at an in-
range sentence—tends to raise questions about, for example, “what
sentence the judge actually intended” Id.

                                -11-
       For the reasons stated, we vacate the sentence and remand
for resentencing.




                              -12-
