

                  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,  Assistant  United States  Attorney,                                     
with whom Jay P. McCloskey,  United States Attorney, Jonathan  R.                                                                           
Chapman  and  George   T.  Dilworth,   Assistant  United   States                                             
Attorneys, were on brief, for the United States.
     John  A. Ciraldo,  with whom  Perkins, Thompson,  Hinckley &amp;                                                                           
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.   After many  years of study  and                    SELYA, Circuit Judge.                                        

debate, Congress passed  the Sentencing Reform Act  of 1984, Pub.

L. 98-473, tit. II,    212(a), 98 Stat. 1837 (1984) (codified  as

amended   at  scattered  sections  of  18  &amp;  28  U.S.C.).    The

legislation took effect on November 1, 1987,  and caused dramatic

changes both in the methodology of criminal sentencing and in the

outcomes  produced.    These   changes  did  not  go  unremarked:

sentencing appeals,  once rare in federal  criminal cases, became

commonplace.   Predictably, the  tidal wave  of appeals  loosed a

flood  of judicial  opinions distilling  the meaning,  scope, and

application of  a seemingly  boundless sea of  guidelines, policy

statements, notes, and commentary.  And whenever it appeared that

the flood waters might recede, the Sentencing Commission launched

a  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.  All  four appeals  implicate Application Note  2 to  the

Career Offender  Guideline, as modified by  Amendment 506, United

States Sentencing Commission, Guidelines Manual   4B1.1, comment.                                                         

(n.2) (Nov. 1994).  No appellate court has addressed the validity

of  Amendment  506,   and,  in  the  quartet  of  criminal  cases

underlying  these  appeals,  two  able  district  judges  reached

diametrically opposite conclusions.   Although the call is close,

we  hold that Amendment 506 is a reasonable implementation of the

statutory  mandate, 28 U.S.C.   994(h) (1988 &amp; Supp. V 1993), and

                                3

is therefore  valid.   Thus, after answering  other case-specific

questions raised by the various  parties, we affirm the judgments

in  the LaBonte  and  Piper cases;  vacate  the judgment  in  the                                     

Hunnewell   case   and   remand   for   reconsideration  of   the                   

appropriateness of resentencing; affirm  the judgment in the Dyer                                                                           

case in  respect to  all non-sentence-related matters  and vacate

the  sentence-related aspect  of  that  judgment,  remanding  for

reconsideration.

I.  THE AMENDMENT          I.  THE AMENDMENT

          Congress created the  Sentencing Commission in 1984  to

design  and  implement  federal  sentencing  guidelines.    Three

principal forces  propelled the legislation:   Congress sought to

establish truth in sentencing by eliminating parole, to guarantee

uniformity in sentencing for  similarly situated defendants,  and

to ensure that the punishment fit the crime.  See U.S.S.G. ch. 1,                                                           

pt. A(3), &amp;  2; see also  United States v.  Unger, 915 F.2d  759,                                                           

762-63 (1st Cir.  1990) (explaining that the primary  purposes of

the Sentencing  Reform Act are to  provide certainty, uniformity,

and fairness in sentencing), cert. denied, 498 U.S. 1104  (1991).                                                   

In addition to general  guidance, see, e.g., 28 U.S.C.    991(b),                                                     

Congress also gave the Commission some specific marching orders.

          One  such  set of  marching  orders is  conveyed  by 28

U.S.C.   994(h), which provides in part:

               The  Commission  shall  assure that  the
          guidelines specify  a sentence  to a term  of
          imprisonment  at or  near  the  maximum  term
          authorized  for  categories of  defendants in
          which the defendant is eighteen years old  or
          older and  [has been  convicted of  a violent

                                4

          crime or felony drug offense and has at least
          two such prior convictions].

The  Commission  implemented section  994(h)  through the  Career

Offender  Guideline.   See U.S.S.G.   4B1.1,  comment. (backg'd).                                    

This  guideline sets  forth  a table  of  enhanced total  offense

levels (TOLs)   said  to be a function of the  "Offense Statutory

Maximum"   to  be employed  in calculating the  sentences of  so-

called  "career offenders."  See U.S.S.G.  4B1.1.  A defendant is                                          

regarded as a career offender  if he was at least eighteen  years

old at the time of  the offense of conviction, that offense  is a

crime of violence or a drug-related  felony, and he has two prior

convictions  for drug felonies or  crimes of violence.   See id.;                                                                          

see also United States v.  Piper, 35 F.3d 611, 613 n.1  (1st Cir.                                          

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

          When   the  Commission   issued  the   Career  Offender

Guideline, it coined the  phrase "Offense Statutory Maximum," but

did not define the  phrase beyond saying that "the  term `Offense

Statutory  Maximum' refers  to the  maximum term  of imprisonment

authorized  for the  offense  of conviction."   U.S.S.G.   4B1.1,

comment.  (n.2)   (Nov.  1987).     Since  this   definition  was

tautological, it proved  unilluminating.   Faced with  a need  to

improvise, several  courts of  appeals concluded that  the phrase

encompassed not  merely the  statutory maximum applicable  to the

offense  of  conviction   simpliciter,  but  also   the  upgraded                                               

statutory maximum that results  after available enhancements  for

prior  criminal activity  are  taken into  account.   See  United                                                                           

States v. Smith, 984  F.2d 1084, 1085 (10th Cir.),  cert. denied,                                                                          

                                5

114 S. Ct.  204 (1993); United States v.  Garrett, 959 F.2d 1005,                                                           

1009-11  (D.C. Cir. 1992); United  States v. Amis,  926 F.2d 328,                                                           

329-30  (3d Cir. 1991); United States  v. Sanchez-Lopez, 879 F.2d                                                                 

541, 558-60 (9th Cir. 1989).  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  drug offense  was enhanced from,  say, twenty  to

thirty  years on account  of prior criminal  activity, netted two

additional offense levels (increasing  his TOL from thirty-two to

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

          In Amendment  506,  the Commission  first  meaningfully

defined the  phrase "Offense  Statutory Maximum."   The amendment

provides  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  crime of  violence or

controlled substance offense, not  including any increase in that

maximum  term  under  a  sentencing  enhancement  provision  that

applies  because  of  the  defendant's  prior  criminal  record."

U.S.S.G.  4B1.1, comment.  (n.2) (Nov. 1994).   The amended  note

offers the example of a defendant who is subject to  a sentencing

enhancement under  21 U.S.C.    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

                                6

amendment as  "avoid[ing] unwarranted double-counting as  well as

unwarranted disparity associated with  variations in the exercise

of prosecutorial discretion  in seeking enhanced penalties  based

on  prior convictions."   U.S.S.G.,  App. C,  Amend. 506,  at 409

(Nov. 1994).  In addition, the Commission  observed that Congress

enacted the array of  sentence-enhancing laws after the statutory

predicate  for the Career Offender Guideline had become law.  See                                                                           

id.   Subsequently, the Commission attempted to explain its newly             

emergent interpretation of the Career Offender Guideline in terms

of  a  desire  to  avoid  unwarranted  disparity  and  to achieve

consistency.  See  Amendment Notice, 60 Fed.  Reg. 14,054, 14,055                           

(1995); see also United  States v. LaBonte,  885 F. Supp. 19,  23                                                    

n.4  (D. Me. 1995).  Whatever may  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  Offender Guideline  (as interpreted  by the

courts).    Due to  this palliative  effect,  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).   Throughout                             
its history, the Sentencing  Commission has been berated  for the
severity of  the sentencing outcomes dictated  by the guidelines.
See, e.g., United  States v.  Jackson, 30 F.3d  199, 204-06  (1st                                               
Cir. 1994) (Pettine, J.,  concurring) (criticizing the guidelines
for  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  new   sentencing  guidelines  are  more   complex,
inflexible,  and   severe  than   those  devised  by   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   the
"unreasonably long sentences" produced by the guidelines).

                                7

II.  THE DEFENDANTS          II.  THE DEFENDANTS

          These  four  defendants  all   were  sentenced  in  the

District  of  Maine as  career offenders  prior  to the  birth of

Amendment  506.  In each instance, the prosecution filed a notice

under 21  U.S.C.    851(a)(1)  signalling its  intention to  seek

enhanced  penalties  for prior  convictions,  and the  sentencing

court arrived  at the defendant's "Offense  Statutory Maximum" by

factoring the statutory enhancement into the mix.  The court then

set  each defendant's  TOL and  guideline sentencing  range (GSR)

accordingly.   Following the  promulgation of the  amendment, all

four defendants tried to  avail themselves of it.  We  limn their

individual circumstances.

                       A.  George LaBonte.                                 A.  George LaBonte.                                                   

          A grand jury indicted LaBonte for possession of cocaine

with intent to distribute in violation of 21 U.S.C.   841(a)(1) &amp;

(b)(1)(C).  After he pleaded guilty,  the district court (Hornby,

U.S.D.J.)  sentenced  him under  the  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,  granted  a  three-level  downward   adjustment  for

acceptance of  responsibility, see U.S.S.G.  3E1.1,  arrived at a                                            

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

affirmed.  See  United States v. LaBonte, 19  F.3d 1427 (1st Cir.                                                  

1994) (table). 

          Subsequent   to  the  promulgation  of  Amendment  506,

LaBonte  moved for  resentencing.   Judge Hornby  determined that

                                8

Amendment 506 was valid  and decided to  apply it.  See  LaBonte,                                                                          

885 F.  Supp. at 24.  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  GSR of  151-188 months,  and Judge

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

See id.  The government appeals from this disposition.                 

                       B.  David E. Piper.                                 B.  David E. Piper.                                                   

          Piper  pleaded   guilty  to  a   two-count  information

charging  conspiracy  to   possess  marijuana   with  intent   to

distribute  and  use  of a  firearm  in  connection  with a  drug

offense.  See 21 U.S.C.    841(a)(1) &amp; (b)(1)(B), 846; 18  U.S.C.                       

   924(c)(1).   Utilizing  an enhanced  statutory maximum,  Judge

Hornby set  Piper's TOL at thirty-seven,  subtracted three levels

for  acceptance of  responsibility, arrived  at a GSR  of 262-327

months,  and imposed  an incarcerative  sentence of  300 months.2

We affirmed.  See Piper, 35 F.3d at 613.                                 

          Hot  on  the  heels   of  Amendment  506,  Piper  moved

unsuccessfully for  resentencing.  Although  Judge Hornby assumed

the   amendment's  validity,  he  exercised  his  discretion  and

declined  to permit  Piper to  benefit from  it.3   Piper appeals

from this disposition.

                                                  

     2Piper  received  an additional  five-year  sentence  on the
firearms count.  That impost is not in issue here.

     3The  amendment,  if  applied, would  have  lowered  Piper's
adjusted  offense  level  from  thirty-four  to  thirty-two,  and
decreased the GSR to 210-262 months.

                                9

                  C.  Alfred Lawrence Hunnewell.                            C.  Alfred Lawrence Hunnewell.                                                         

          A  grand  jury  indicted  Hunnewell  on  six  narcotics

counts.  See 21 U.S.C.   841(a)(1).  He thereafter pleaded guilty                      

to two counts  of possessing controlled substances with intent to

distribute,  and  the  court  (Carter,  U.S.D.J.)  dismissed  the

remaining  counts.   Using an  enhanced statutory  maximum, Judge

Carter set Hunnewell's TOL  at thirty-four, deducted three levels

for acceptance  of responsibility,  arrived at a  GSR of  188-235

months,  and sentenced  the defendant  to serve  188 months.   We

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

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

          After  the  promulgation  of Amendment  506,  Hunnewell

beseeched  the district court to trim his sentence.  Judge Carter

denied  this motion,  concluding that  the  Sentencing Commission

lacked  the  authority  to   adopt  Amendment  506.4    Hunnewell

appeals.

                        D.  Stephen Dyer.                                  D.  Stephen Dyer.                                                  

          Dyer  pleaded  guilty  to  a charge  of  conspiring  to

possess  controlled  substances  with  intent  to  distribute  in

contravention of  21 U.S.C.     841(a)(1),  846.   Consulting the

enhanced  statutory  maximum,  Judge  Carter set  Dyer's  TOL  at

thirty-four,  refused  an acceptance-of-responsibility  discount,

arrived at a  GSR of 262-327 months, and  levied a 262-month term

of imprisonment.  We affirmed.  See United States v. Dyer, 9 F.3d                                                                   
                                                  

     4The amendment,  if applied, would have  lowered Hunnewell's
adjusted  offense  level  from  thirty-one  to  twenty-nine,  and
decreased his GSR to 151-188 months.

                                10

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

          Dyer eventually filed a petition for habeas relief, see                                                                           

28 U.S.C.   2255, in which  he sought to set aside his conviction

or,  in  the alternative,  to reduce  his  sentence by  virtue of

Amendment 506.    Judge Carter  denied and  dismissed the  habeas

petition.  Among other things, the judge, declaring Amendment 506

to be unlawful, refused  to resentence Dyer.5  Dyer  protests all

aspects of the district court's order.

III.  THE VALIDITY OF AMENDMENT 506          III.  THE VALIDITY OF AMENDMENT 506

          We  begin  our analysis  by discussing,  generally, the

methodology we will employ  in examining Amendment 506.   We then

proceed  to  tackle  the  two conundrums  that  are  inextricably

intertwined with the question of the amendment's validity.

                       A.  The Methodology.                                 A.  The Methodology.                                                    

          Commentary authored  by the Sentencing  Commission that

"interprets or  explains a  guideline is authoritative  unless it

violates   the  Constitution   or  a   federal  statute,   or  is

inconsistent  with,  or  a  plainly erroneous  reading  of,  that

guideline."   Stinson  v. United  States, 113  S. Ct.  1913, 1915                                                  

(1993).  Like the  Commission's policy statements, its commentary

is  binding on  the federal  courts.   See  id. at  1917-18.   In                                                         

general, these  interpretive materials  are entitled to  the same

substantial degree  of deference that courts  routinely accord an

administrative  agency's interpretation  of  its own  legislative
                                                  

     5Amendment  506,  if  applied,  would  have  lowered  Dyer's
adjusted  offense  level  from  thirty-four  to  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  (including,  but not  restricted to,  the

Commission's   enabling   statute),  and   with   the  guidelines

themselves.

          These  two  lines of  inquiry  proceed along  different

analytic paths.  When  a court ventures to determine  whether the

Commission's  commentary tracks  the  guidelines,  the degree  of

deference is  at its zenith.  In  this context, commentary is not

merely  the end  product of  delegated authority  for rulemaking,

but,  rather,  "explains  the  guidelines  and provides  concrete

guidance  as to how even unambiguous guidelines are to be applied

in practice."  Id. at 1918.  Unless the commentary  is a palpably                            

erroneous rendition of a  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.    That  inquiry  implicates  the  traditional  process  of

reviewing agency rules typified  by the Supreme Court's watershed

opinion  in  Chevron U.S.A.  Inc.  v.  Natural Resources  Defense                                                                           

Council, Inc., 467  U.S. 837 (1984).   Thus, while the  Court has                       

warned  that  Chevron does  not provide  an  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.  at 1918,  we believe  that Chevron  deference is  the proper                                                 

criterion  for  determining whether  a  guideline  (or, for  that

                                12

matter, commentary that suggests how a guideline should be  read)

contravenes a statute.   The Chevron two-step  approach fits that                                              

type of inquiry  like a glove.6  See Chevron,  467 U.S. at 842-43                                                      

(describing two-step test).

          Applying  this   methodology   here  is   not   without

complications.  We limit our inquiry  to the fit (or lack of fit)

between the Career Offender  Guideline as explicated in Amendment

506 and  the applicable statute,  28 U.S.C.    994(h).7   In that

statute, Congress directed the  Commission to ensure that certain

recidivists receive  sentences "at  or  near the  maximum."   The

Career Offender Guideline represents the Commission's response to

this  directive.    See  U.S.S.G.   4B1.1,  comment.   (backg'd).                                 

Because the Commission's  understanding of its  statutory mandate

must  be  measured against  the  Chevron  benchmark, the  inquiry                                                  

follows a familiar format:

               When   a   court  reviews   an  agency's
          construction   of   the   statute  which   it
          administers,  it  is   confronted  with   two
                                                  

     6We  note in passing  the suggestion  by some  scholars that
Stinson implies an extraordinarily deferential standard of review                 
for the  entire process of  evaluating guideline commentary.   On
this view, commentary  should be honored unless  it constitutes a
plainly erroneous interpretation  either of a  guideline or of  a
statute.  See  1 Kenneth Culp Davis  and Richard J.  Pierce, Jr.,                       
Administrative Law  Treatise   6.10,  at 284  (3d ed. 1994).   We                                      
need not  probe this  possibility today.   Because Amendment  506
passes  muster under  the  Chevron test,  it  would clearly  pass                                            
muster if we were  to employ the more deferential  test suggested
by Professors Davis and Pierce.

     7Because the government does  not contend that Amendment 506
is  inconsistent  with  the   guideline  itself,  we  eschew  any
discussion of that point.  See United States v. Zannino, 895 F.2d                                                                 
1, 17 (1st Cir.)  (explaining that issues not briefed  and argued
are deemed abandoned), cert. denied, 494 U.S. 1082 (1990).                                             

                                13

          questions.   First,  always, is  the question
          whether Congress  has directly spoken  to the
          precise question at issue.   If the intent of
          Congress  is clear,  that is  the end  of the
          matter .  .  .  .   If,  however,  the  court
          determines   Congress    has   not   directly
          addressed  the precise question at issue, the
          . . .  question for the court  is whether the
          agency's answer  is  based on  a  permissible
          construction of the statute.

Chevron, 467  U.S. at 842-43; accord  Strickland v. Commissioner,                                                                           

Me.  Dep't of  Human Servs.,  48 F.3d  12, 16  (1st  Cir.), cert.                                                                           

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

          These appeals  focus on a single  sentence that appears

in 28 U.S.C.   994(h), a sentence that requires the Commission to

adopt  guidelines  "that  specify   a  sentence  to  a   term  of

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

categories of defendants."   This  problematic sentence  presents

three  issues  of  statutory  interpretation,  necessitating  two

distinct  iterations   of  the  Chevron  standard.     The  first                                                 

application combines  two issues; it concerns  the explication of

the word "maximum" as  that word is  used in section 994(h)  and,

concomitantly,  the  meaning of  the  word  "categories" as  used

therein.   The second occasion  for Chevron analysis  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   mindful  that  plausible  if   strained
interpretations of  a series of individual  statutory terms might
at times lead  to an  impermissible overall  interpretation of  a
statute, that is  not the case  here.  Whether  one conducts  the
ensuing analysis in one segment or two, the result is unaffected;
the  simple fact  of  the  matter  is  that  the  Commission  has

                                14

                     B.  The First Conundrum.                               B.  The First Conundrum.                                                      

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

susceptible  of  divergent  meanings,  depending,   in  part,  on

precisely  what constitutes  a "categor[y]  of defendants."   One

possible  reading  is that  "categories"  are  composed of  those

defendants  charged with  violations of similar  statutes against

whom prosecutors have filed notices of intention to seek sentence

enhancements (e.g., all repeat  offender drug traffickers against

whom  the government  has  filed sentence-enhancing  informations

under  21  U.S.C.    851(a)(1)).    On  this  view, the  relevant

statutory maximum  for any such  defendant would be  the enhanced

statutory  maximum (ESM) applicable to repeat  offenders.  See 21                                                                        

U.S.C.      841(b)(1),  851(a)(1).    But  this  reading  is  not

linguistically compelled.  The word "categories" plausibly can be

defined more  broadly to  include all  offenders  (or all  repeat

offenders) charged with transgressing  the same criminal statute,

regardless  of  whether the  prosecution  chooses  to invoke  the

sentence-enhancing  mechanism  against  a   particular  defendant

(e.g.,  all  drug  traffickers,   or  all  repeat  offender  drug

traffickers,  who   are  charged  with  violating   21  U.S.C.   

841(a)(1)).    On this  view, the  word  "maximum" refers  to the

unenhanced statutory  maximum (USM),  see 21 U.S.C.    841(b)(1),                                                   

                                                  

developed a reasonable interpretation  of the vague and ambiguous
language of section  994(h).   That said, we  employ a  piecemeal
approach here, as we believe it  better illustrates that U.S.S.G.
 4B1.1,  as   interpreted  by   the  amended  commentary,   is  a
permissible  construction  of  Congress's  directive  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  comport with such

specific  statutory  directives  as  Congress  has ordained,  see                                                                           

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

is  apodictic that  the sentencing  guidelines cannot  sweep more

broadly  than   Congress'  grant  of  power   to  the  Sentencing

Commission  permits."),  the  question  becomes  whether Congress

clearly intended to prefer one  of these interpretations over the

other.   The  issue is not  free from  doubt.   Several courts of

appeals have  heretofore read  the word  "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.  Step One:  Congressional Intent.  At the outset, we                    1.  Step One:  Congressional Intent.                                                       

must  determine  whether  Congress  has  spoken  with  sufficient

clarity  to  foreclose  alternative interpretations.    Statutory

construction  always starts     and  sometimes  ends    with  the

statute's  text.  Here, we find Congress's handiwork opaque.  The

problem is not  ambiguity in  definition.  Rather,  it is  simply

unclear from the bare  language of the law which maxima  and what

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

                                                  

     9The relevance of this  somewhat arid discussion will become
more  apparent in  Part III(C),  infra, when  the need  arises to                                                
determine  the  extent to  which sentences  are  "at or  near the
maximum."

                                16

          The earlier  cases relating  the word "maximum"  to the

ESM do not dictate a contrary conclusion.  Those courts envisaged

their primary task as interpreting the meaning of the guidelines,

see, e.g.,  Garrett,  959  F.2d at  1010  (concluding  that  "the                             

Guidelines  require us  to  define the  [term] Offense  Statutory

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

court's  task as  "merely [to]  determine the  `Offense Statutory

Maximum'  as used in guidelines  4B1.1"), and they did so without

the aid of  Amendment 506.   Although two  courts suggested  that

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

better effectuate congressional intent,  see Garrett, 959 F.2d at                                                              

1010; Sanchez-Lopez,  879 F.2d at  559, neither  of these  courts                             

held   or even  hinted   that section 994(h) thwarted a different

reading.   We have  found no  indication that  any of  the courts

which  scrutinized the  unexplicated version  of U.S.S.G.   4B1.1

detected the  kind of clear, overarching  congressional directive

that would suffice to abort a Chevron inquiry.                                               

          Even  were we  to believe  otherwise,   two abecedarian

principles  of statutory  construction nonetheless  would counsel

continuation of the Chevron  journey.  First, courts that  read a                                     

statute without the aid of an authoritative interpretation by the

agency  charged with  administering  the  statute must  reexamine

their  reading if  the agency  later  speaks to  the point.   See                                                                           

International  Ass'n   of  Bridge,  Structural,   and  Ornamental                                                                           

Ironworkers, Etc. v. NLRB,  946 F.2d 1264, 1271 (7th  Cir. 1991).                                   

Second,  an agency that  is charged with  administering a statute

                                17

remains free  to supplant prior judicial  interpretations of that

statute  as long  as the  agency interpretation  is a  reasonable

rendition of the statutory text.   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);  Strickland,  48  F.3d  at 318                                                        

(same).  Hence, we trek onward.

          When the plain meaning of a law is not readily apparent

on its  face, the  next  resort is  to the  traditional tools  of

statutory   construction     reviewing  legislative  history  and

scrutinizing statutory  structure and  design    in an  effort to

shed light on Congress's intent.10

          As  originally  envisioned, section  994(h)  would have

placed  the onus of imposing  sentences "at or  near the maximum"

directly  on sentencing  judges.   See S.  Rep. No.  98-225, 98th                                                

Cong., 2d Sess. 175 (1984), reprinted  in 1984 U.S.C.C.A.N. 3182,                                                   

3358.  The provision's  author, Senator Kennedy, devised it  as a

means of putting "[c]areer criminals  . . . on notice  that their

chronic violence  will be punished by  maximum prison sentences."

                                                  

     10We  acknowledge  the  ongoing debate  over  the propriety,
under  Chevron,  of  going  beyond  plain  meaning  analysis  and                        
resorting to  the traditional tools of  statutory construction in
search  of  a clear  congressional  directive.   Compare  INS  v.                                                                       
Cardoza-Fonseca, 480  U.S. 421,  446-48 (1987)  (suggesting that,                         
under  the   first  prong   of  Chevron,  courts   should  employ                                                 
"traditional tools  of statutory  construction") with id.  at 454                                                                   
(Scalia, J., concurring) (rejecting  this statement).  This court
has followed Chevron, 467 U.S. at 843 n.9,  and employed the full                              
tool chest of statutory  construction implements in attempting to
detect clear  congressional meaning.   See, e.g.,  Strickland, 48                                                                       
F.3d at 19.  We continue that practice in this case.

                                18

128  Cong. Rec. 26,518  (1982).  But  that proposal did  not take

wing;  the Senate  Judiciary Committee  instead approved  section

994(h)  in its  current  incarnation.   This version,  unlike the

rejected proposal,  addresses its command to  the Commission, not

the  courts.  The  Committee obviously believed  that this change

would  better "assure  consistent and rational  implementation of

the  Committee's view  that  substantial prison  terms should  be

imposed on  repeat violent offenders and  repeat drug offenders."

S. Rep.  No. 98-225, supra, 1984 U.S.C.C.A.N.  at 3358.  We think                                    

that this  history confirms that (1) in  creating the Commission,

Congress had an overall goal of curtailing judicial discretion in

sentencing matters; and (2)  in enacting section 994(h), Congress

had  a specific  intent  to let  the  Commission (as  opposed  to

individual judges)  determine the  best method for  assuring that

career offenders would receive stiff prison sentences.  Past this

point,  the  legislative archives  offer  no clue  as  to whether

Congress ever  recognized either  the potential ambiguity  of the

term  "maximum"  or the  uncertainty  that  might attach  to  the

question of what constitutes a category of offenders.

          Finding the  relevant  legislative  history  to  be  no

clearer  than  the  statute's  text,  we  look  to  the  enabling

legislation and  the overall  structure of the  Sentencing Reform

Act for  what  insights they  may afford.   Superficially,  these

considerations seem to support the government's position that the

"maximum" is the  ESM.  Reading  "categories" narrowly enough  to

distinguish  between offenders on the basis of whether the United

                                19

States  Attorney has filed sentence-enhancing informations yields

potentially harsher  sentences in those cases,  thereby promising

more stringent  punishment for  selected repeat offenders.   That

narrow  reading also preserves  the distinction between offenders

who are subject to sentence enhancements based  on prior criminal

activity  and those  who are  not    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.  They neither indicate that Congress has spoken

directly to  the precise issue  nor reflect a  sufficiently clear

congressional   intent   to    circumscribe   the    Commission's

interpretive  powers.   Indeed, the  arguments are  circular; the

touted  advantages  of  the  government's reading  appear  to  be

advantageous  only  if  one   assumes  the  conclusion  that  the

government is struggling to prove.

          We will not add hues to  a rainbow.  Because we find no

clear congressional  directive regarding the meaning  of the term

"maximum" as that  term is  used in section  994(h), our  inquiry

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

          2.    Step  Two:    Plausibility  of  the  Commission's                    2.    Step  Two:    Plausibility  of  the  Commission's                                                                           

Interpretation.    Where, as  here, a  statute  is not  clear, an          Interpretation.                        

interpretation by  the agency that administers it will prevail as

long  as the interpretation is reasonable under the statute.  See                                                                           

Strickland,  48 F.3d at 21.  We believe that the Commission's act                    

                                20

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

imprisonment   the USM   furnishes a reasonable interpretation of

section 994(h).  The statute explicitly refers to  "categories of

defendants," namely,  repeat  violent criminals  and repeat  drug

offenders,  and does  not suggest  that each  individual offender

must  receive the  highest sentence  available against him.   The

Career Offender  Guideline, read  through the prism  of Amendment

506,  adopts an  entirely  plausible version  of the  categorical

approach  that the statute suggests.   Unless one  is prepared to

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

of linguistic accident  or awkward locution    and we are not  so

inclined   this approach is eminently supportable.

          Our  dissenting  colleague  decries   the  Commission's

categorical  approach.    He  states that,  indeed,  "the  phrase

`categories  of defendants' is perhaps better understood . . . as

a 'linguistic accident or an awkward locution.'"  Post at 47.  To                                                                

the contrary, this  conclusion is foreclosed by, inter  alia, the                                                                      

following explicit language in 18 U.S.C.   3553:

          (a)  .  . .  The  court,  in determining  the
          particular  sentence  to  be  imposed,  shall                                                                 
          consider  

          . . . .

               (4)   the  kinds  of  sentence  and  the
          sentencing range established for  

                    (A)  the   applicable  category  of                                                                 
          offense committed by the  applicable category                                                                 
          of defendant as set  forth in the  guidelines                                
          issued by the Sentencing  Commission pursuant                                                                 
          to  section 994(a)(1)  of  title 28  . .  . .                                         
          (Emphasis supplied).

                                21

          Further  inescapable evidence that the term "categories

of   defendants"  is   neither   an  accidental   nor  a   recent

congressional  usage, see post at  47-48, appears in  28 U.S.C.                                          

994(b)(1):

          The Commission, in the guidelines promulgated                                  
          pursuant  to  subsection  (a)(1), shall,  for                                                                 
          each  category  of  offense   involving  each                                                                 
          category of defendant, establish a sentencing                                                                 
          range that is  consistent with all  pertinent                                                                 
          provisions of  title 18, United  States Code.                                           
          (Emphasis supplied).

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

the term  "categories of defendants," as used  in section 994(h),

originated in  the  carefully incubated  legislation mandating  a

guideline  sentencing  system  that  was to  be  promulgated  and

monitored  by the Sentencing Commission, see 28 U.S.C.   994, and                                                      

implemented by  the courts, see 18 U.S.C.   3553.  Among the more                                         

important  innovations attending  the  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  by  Congress in  titles  18 and  28, as  well  as their

coordinate  design,  we are  unable  to  endorse the  unsupported

statutory interpretation  advanced in  dissent.  Rather,  we must

follow the canons of statutory interpretation which demand that a

court give meaning  to each  word and phrase  when explicating  a

                                22

statute, and read the component parts of a legislative  enactment

as a unified whole.   See United Technologies Corp.  v. Browning-                                                                           

Ferris  Indus.,  Inc., 33  F.3d 96,  101  (1st Cir.  1994), cert.                                                                           

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

758  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  from one

statute and incorporates  it into a second statute,  the language

of  the two  acts should  be interpreted  the same  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.    See  28  U.S.C.     994(f).    The                                            

Commission  adverted to  this concern  in promulgating  Amendment

506, see  U.S.S.G., App. C, Amend.  506, at 409 (Nov.  1994), and                  

responded to  it by  taking a categorical  approach.   Similarly,

Congress's efforts  to  eliminate sentencing  disparities can  be

reconciled   with  section   994(h)'s  exhortation   for  maximal

sentencing only if one hears  that exhortation as being addressed

to  categories  of  defendants.    In  the  final  analysis,  the

Commission remains fully faithful  to the welter of congressional

commands  by   choosing  to  treat  repeat   offenders  as  broad

categories  of defendants  and thereby  harmonizing the  call for

stringent punishment of recidivists with the call for consistent,

non-disparate sentences.

                                23

          The  government lodges  two further  objections to  the

plausibility of  the Commission's rationale.   First, it contends

that  Congress,  by  means  of  such  statutes  as  21  U.S.C.   

851(a)(1),  intended  to give  prosecutors  commodious discretion

over  the  potential  sentences  of repeat  offenders,  and  that

Amendment 506  frustrates this intent.  Though the government may

well be correct  in asserting  that Congress did  not create  the

Sentencing   Commission   with   an   eye    toward   eradicating

prosecutorial  abuses, it  does not  follow that  Congress strove

affirmatively  to give  prosecutors  the keys  to the  kingdom.11

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

yearning for  unbridled prosecutorial discretion  when two  major

goals of  sentencing reform  were to  "assure that sentences  are

fair  both to the  offender and to society,"  S. Rep. No. 98-225,

supra,  1984 U.S.C.C.A.N.  at 3222,  and to  "avoid[] unwarranted               

sentencing disparities among defendants  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  the word "maximum" is  that this reading

prescribes  an identical  sentencing range  for  repeat offenders
                                                  

     11The  government makes  much of  the fact  that the  Senate
Judiciary Committee,  in creating the Commission,  disclaimed any
fear that the  guidelines would increase  prosecutors' discretion
to  reduce sentences through plea bargains.   See S. Rep. No. 98-                                                           
225,  supra,   1984  U.S.C.C.A.N.   at  3246.     But  Congress's                     
explanation  (which  stressed  that  the  Commission could  guard
against this phenomenon because it was empowered to  issue policy
statements concerning the  review of plea bargains, see  id.), is                                                                      
indicative of the latitude it intended to give to the Commission.                                                                          

                                24

whether or  not the  prosecution  has sought  to obtain  sentence

enhancements.   This  reading, the  government says,  effectively

eliminates  prosecutorial  enhancements  and arrogates  unto  the

Commission the  authority that Congress explicitly  vested in the

United States Attorney.  We find this polemic unpersuasive.

          We  take   21  U.S.C.     841(b)(1)  as  our  point  of

departure.   This  section establishes  unenhanced  maximum terms

applicable to all violators, enhanced maximum terms applicable to

certain repeat  offenders, and, in some  cases, mandatory minimum

terms  of   incarceration  (enhanced  or  unenhanced).     It  is

elementary that  any guideline  which prescribes a  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  not unreasonable.  The root

purpose of the Career Offender  Guideline, U.S.S.G.  4B1.1, is to

enhance repeat offenders' sentences.   The revamped guideline not

only accomplishes  that purpose but also  coheres with Congress's

discernible  aims in  making enhanced  penalties  available under

section 841.   While that statute establishes a possible enhanced                                                                  

penalty for  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  knell  for  enhancements required  by

statute.    The  guideline,   section  4B1.1,  as  explicated  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.   This departure lacks  significance.  For

purposes of  testing the  fidelity of the  sentencing guidelines'

career  offender  provisions  to  the  statutory  scheme,  it  is

irrelevant that some sentences  beyond those mandated by Congress

are also enhanced.

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

treat  the word  "maximum"  as meaning  the unenhanced  statutory

maximum applicable  to a category of  offenders, broadly defined,

is a plausible rendition  of section 994(h).   We must honor  the

Commission's definition.

                    C.  The Second Conundrum.                              C.  The Second Conundrum.                                                      

          As  we  have   previously  explained,  section   994(h)

contains a  specific  directive  that,  in  the  case  of  career

offenders, sentences ought  to be  "at or near  the maximum  term

authorized."  The government contends that, regardless of how the

word "maximum" is construed, Amendment  506 is invalid because it

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

maximum.  As before,  we measure this contention by  wielding the

Chevron yardstick.                 

          1.  Step One:   Congressional Intent.   At the risk  of                    1.  Step One:   Congressional Intent.                                                        

belaboring the obvious,  we start  from the premise  that "at  or

near"  is neither  an exact  nor a  self-defining term.   Section

                                26

994(h) is  silent  as to  how  "near" sentences  must  be to  the

maximum, and  the legislative history is  singularly unhelpful on

this point.  Especially since  we must concentrate on the USM  in

calculating how "near" the  Commission's sentencing ranges are to

the  statutory  goal, see  supra Part  III(B),  we are  unable to                                          

divine a sufficiently  clear expression of  congressional intent.

Thus,  we quickly move to the second    and decisive   portion of

the Chevron query.                     

          2.    Step  Two:    Plausibility  of  the  Commission's                    2.    Step  Two:    Plausibility  of  the  Commission's                                                                           

Interpretation.  The question  of plausibility reduces to whether          Interpretation.                        

the  Career  Offender  Guideline,   as  now  interpreted  by  the

Commission,  sufficiently   ensures  sentences  that   satisfy  a

reasonable construction of  "at or  near the maximum."   In  this

setting, deference to the  Commission is especially  appropriate.

"At  or near" is an inherently variable phrase.  In speaking with

a Texan, one  might say that Providence is "near"  Boston, but it

is doubtful if that  description would (or could) be  employed in

speaking with  a resident of, say, Cambridge or Cranston.  In all

events, the phrase  "at or  near," as employed  in this  statute,

suggests  a  continuum  of  various  sentences,  each  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,  by  itself,   does  not   dictate  individual   defendants'

sentences.  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  see U.S.S.G.   3E1.1, role  in the                                            

offense, see U.S.S.G.   3B1.1,  3B1.2, and the like.   It is only                      

when all  the  component parts  of  the sentencing  equation  are

pulled  together that  the  court  can  ascertain  the  range  of

permissible  sentences  and,  hence,   settle  upon  the   actual

sentence.   Even then, the  court retains authority,  at least in

certain  circumstances,  to  depart   downward  if  a  particular

defendant furnishes substantial  assistance in the  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.  5K2.0.  Many of these prospective

adjustments derive from explicit  statutory commands.  See, e.g.,                                                                          

28  U.S.C.     994(n)  (directing  the  Commission  to  create  a

mechanism through which defendants will be rewarded for rendering

substantial assistance).

          We   believe  that   this   reality   has   significant

implications  for the question at bar.  First and foremost, given

the labyrinthine way in  which repeat offenders' actual sentences

are constructed,  heightened deference to the  Commission's slant

on  the "at  or near"  language  is very  desirable.   After all,

respect for  agency interpretations is  "particularly appropriate

in complex and highly specialized areas  where the regulatory net

has  been intricately  woven,"  Massachusetts Dep't  of Educ.  v.                                                                       

                                28

United States Dep't  of Educ., 837 F.2d 536,  541 (1st Cir. 1988)                                       

(citation  and  quotation  marks  omitted),  and  the  sentencing

guidelines constitute a classic example of such a  web.  In other

words,  due to  the interstitial  nature of  the  career offender

calculation, a  reviewing court  should be generous  in assessing

the reasonableness  of  the  Commission's  approximation  of  how

"near" is "near."

          The fact  that the career offender  adjustment does not

itself  directly  determine  any  particular  defendant's  actual

sentence has other  implications as well.  Unless one is ready to

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

reach    and even  the government does  not espouse so  extreme a

position   it  is surpassingly difficult  (if not impossible)  to

expect the Commission to  write a rule which ensures  that career

offenders  will invariably  receive sentences  "at or  near" each

individual's ESM.  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  (however the word "maximum" may

be  defined).   By  like token,  the  very real  possibility that

upward  adjustments  to  the   TOL  may  make  career  offenders'

sentences  more severe suggests that room should be left for play

in  the  joints as  the Commission  implements  the "at  or near"

language.

          Mindful,  as we  are, of  these complexities,  we think

that  Amendment 506 passes muster.  The sentences available under

                                29

the  newly  explicated  Career Offender  Guideline  constitute  a

substantial  proportion of  the possible  sentences permitted  by

statute.   We can conveniently illustrate  the point by reference

to the  four defendants who  are involved in  these appeals.   By

operation of  Amendment 506, defendants  like LaBonte, Hunnewell,

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

recalculated GSR) before taking  into account any  individualized

adjustments.  A  262-month sentence represents 109.2% of  the USM

for  these defendants'  offense  of conviction.12    On the  same

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

months  (76%  of the  applicable USM).    Examining the  gamut of

possible  sentences   available  against  each   defendant  under

Amendment 506,  the median  sentence in  the range applicable  to

LaBonte, Hunnewell,  and Dyer  (236 months) constitutes  98.3% of

the  USM, while  the median  sentence in  the range  pertinent to

Piper (294.5 months)  constitutes 61.4%  of the USM.   Under  any

suitable definition  of  the word  "near,"  we believe  that  the

Commission  could  reasonably  conclude  that  these  percentages

ensure sentences sufficiently close to the USM   and sufficiently

harsh   to provide  a fair approximation of Congress's  desire to

see that career offenders,  as a group, receive maximal  terms of

imprisonment.

IV.  THE APPLICATION OF AMENDMENT 506          IV.  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  enhancements
carefully enacted in statutes like 21 U.S.C.   841."  See post at                                                                        
42.

                                30

          Having  determined  that  Amendment  506  is  a  lawful

exercise of  the Sentencing  Commission's powers, we  now address

the motions for resentencing.

          The principles governing motions to resentence based on

newly emergent guideline amendments can be compactly  catalogued.

When the Commission amends  the guidelines (or its interpretation

of the guidelines)  in a  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  forth in  section  3553(a)  to  the  extent  that  they  are

applicable,"  may reduce  the sentence  "if such  a  reduction is

consistent with  the applicable  policy statements issued  by the

Sentencing  Commission."   18  U.S.C.    3582(c)(2).14   The  law

permits, but does not  require, the district court  to resentence

                                                  

     13For  this   purpose,   an  "amendment"   differs  from   a
"clarification."  Clarifications explain  earlier editions of the
sentencing  guidelines;  they  do  not  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  change prior guidelines and,
if they are to  be given retroactive effect, the  Commission must
so specify.   See 28  U.S.C.    994(u); U.S.S.G.   1B1.10.   This                           
opinion  deals   exclusively  with  amendments   as  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  of the  offense, the  defendant's
criminal past, the GSRs,  the Commission's policy statements, and
the  necessity  of  avoiding  unwarranted  sentencing disparities
among similarly situated defendants.  See 18 U.S.C.   3553(a).                                                   

                                31

such a defendant.   See United States  v. Connell, 960 F.2d  191,                                                           

197  (1st Cir. 1992).  Because this  decision is committed to the

trial  court's discretion,  the court  of appeals  will interfere

only if the record  reveals a palpable abuse of  that discretion.

See United States  v. Pardue, 36 F.3d 429, 430  (5th Cir.), cert.                                                                           

denied, 115 S. Ct. 1969 (1994); United States v.  Telman, 28 F.3d                                                                  

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

F.2d 1132,  1134 (1st Cir. 1988).   It is plain  that, under this

paradigm,  most resentencing battles will  be won or  lost in the

district court, not in an appellate venue.

          With  this  brief  preface,  we  reach  the  individual

defendants' cases.

                       A.  George LaBonte.                                 A.  George LaBonte.                                                   

          In LaBonte's  case, the district court upheld Amendment

506  and  applied it  to reduce  the  defendant's sentence.   See                                                                           

LaBonte, 885 F.  Supp. at  24.  Although  the government  appeals                 

from  the reconfigured  sentence,  it challenges  only the  lower

court's   validation  of   the   reinterpreted  Career   Offender

Guideline.    Because the  government  has  neither asserted  nor

argued a claim that the  court abused its considerable discretion

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

United  States v.  Zannino,  895 F.2d  1,  17 (1st  Cir.),  cert.                                                                           

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

                       B.  David E. Piper.                                 B.  David E. Piper.                                                   

          In Piper's  case, the district  court upheld  Amendment

                                32

506  but  refused  to  mitigate  the  original  sentence.   Piper

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

of them warrant discussion.

          First, Piper suggests that under 18 U.S.C.   3582(c)(2)

a district court may only decide whether  the policies underlying

an  amendment  would be  served by  a  lessened sentence.   Piper

misreads  the  statute:   it  authorizes  the  district judge  to

resentence  when resentencing  is  consistent  with the  policies

underlying  the amendment, but it neither compels the judge to do

so nor limits his inquiry to the consistency question.  Since the

language is  precatory rather than mandatory,  the district court

need  not  even  consider  the policy  statements  supporting  an

amendment  if,  "after considering  the  factors set  forth  in  

3553(a)  to  the  extent  they  are  applicable,"   18  U.S.C.   

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

          Piper's  next remonstrance  suggests that  the district

court  failed  to  reweigh  the  factors  delineated  in  section

3553(a),  see supra  note 14,  and that,  therefore, the  court's                             

decision  cannot   constitute  a  proper   exercise  of  judicial

discretion.   The  problem  with this  remonstrance  lies in  its

premise.   The district judge presided over Piper's case from the

outset.  He possessed great familiarity with the odious nature of

the offense of conviction (leading  a "commando-style" raid on  a

family's home while heavily  armed, and searching for a  stash of

illegal drugs supposedly secreted there).  Having sentenced Piper

originally,  he knew  the  intimate details  of Piper's  criminal

                                33

history.  At  the hearing on the motion  to resentence, the judge

listened to arguments  that zeroed  in on the  very factors  that

Piper now claims were overlooked.

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

over substance.   We decline the invitation.  Where,  as here, it

is  clear that  the sentencing  judge has considered  the section

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

he make  explicit findings as to  each and all of  those factors.

See United States  v. Savoie, 985  F.2d 612, 618 (1st  Cir. 1993)                                      

(holding that a  district court need  not make explicit  findings

regarding  the statutory factors  relevant to  restitution orders

"so long  as the  record on appeal  reveals that  the judge  made

implicit   findings   or   otherwise   adequately   evinced   his

consideration of  those factors");  United States v.  Wilfred Am.                                                                           

Educ.  Corp.,  953 F.2d  717, 720  (1st  Cir. 1992)  (similar, in                      

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

301,  307 (1st  Cir.  1993) ("As  a general  rule, a  trial court

lawfully  may make  implicit findings  with regard  to sentencing

matters  . .  . .").   On  this record,  it strains  credulity to

suggest  that the  district court  neglected to  take account  of

statutorily required items in its decisionmaking process.

                  C.  Alfred Lawrence Hunnewell.                            C.  Alfred Lawrence Hunnewell.                                                         

          In  Hunnewell's  case,  the district  court  held  that

Amendment  506  was invalid,  and refused  to  apply it  for that                                                                           

reason.  Having concluded  that the lower court erred,  see supra                                                                           

Part  III, we  ordinarily would  remand for  further proceedings.

                                34

But  the government has other ideas; it asserts that the district

court's order should  be construed as an  exercise of discretion,

and it asks us  to affirm the denial of  Hunnewell's resentencing

request on this basis.

          After  a  painstaking  examination  of  the  record, we

reject the government's asseveration.  Calling a horse a cow does

not  yield  milk.   Indeed, the  government tacitly  concedes the

weakness of  its position by forgoing  developed argumentation on

this  point  and instead  regaling us  with  the reasons  why the

district  could  (or should)  have  declined to  extend  an olive

branch  to  Hunnewell.    The fact  remains,  however,  that  the

discretion  conferred  by  18  U.S.C.     3582(c)(2)  is for  the

district  court    not  this court     to exercise  in  the first

instance.   Consequently,  the denial  of Hunnewell's  motion for

resentencing must be set aside and the cause remanded for further

consideration of that motion.

          Before  leaving  Hunnewell's  situation,  we  pause  to

comment on the government's suggestion that,  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  initially computed  a GSR  of 188-235
months, and sentenced  Hunnewell to serve  188 months in  prison.
Applying  Amendment 506 to Hunnewell's case  yields a revised GSR
of 151-188 months.  See supra note 4.                                       

                                35

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  extreme (whether top
          or bottom)  of the  guideline range  that the
          judge  thought  applicable,   the  court   of
          appeals should vacate the sentence and remand
          for resentencing if it is determined that the
          court erred in its computation  of the range,
          notwithstanding  that there may be an overlap
          between  the  "right" and  "wrong" sentencing
          ranges sufficient to  encompass the  sentence
          actually imposed.

Id. at 717-18.  So it is here.  In Hunnewell's initial sentencing             

hearing, both the government  and the defense asked the  court to

impose  a sentence at the bottom of  the GSR.  The court obliged.

Giving  vitality to  the  foundational principle  on which  Ortiz                                                                           

rests,  we cannot be confident that, faced with a different range

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

                        D.  Stephen Dyer.                                  D.  Stephen Dyer.                                                  

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

fours vis-a-vis the  posture of the  resentencing issue, we  need                         

not  linger.  For the  reasons already expressed,  see supra Part                                                                      

IV(C),  Dyer is entitled to  have the district  court address the

merits of his request for resentencing.

V.  THE SECTION 2255 PETITION          V.  THE SECTION 2255 PETITION

          Dyer  also appeals  from  the district  court's summary

dismissal of his  section 2255  petition.  A  district court  may

dismiss a  section 2255  petition without holding  an evidentiary

hearing if  it plainly appears on the  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  more

than conclusory  prognostications and  perfervid rhetoric,  or if

the  key factual  averments  on which  the  petition depends  are

either inherently improbable or contradicted by established facts

of record.   See United States  v. McGill, 11 F.3d  223, 225 (1st                                                   

Cir. 1993); see also 28 U.S.C.   2255 (explaining  that a hearing                              

is  unnecessary  when the  record  "conclusively  shows that  the

prisoner is entitled to no relief").

          We believe  that Dyer's petition is  both generally and

specifically defective.  Taking  first things first, the district

court noted that  Dyer had not presented  his factual allegations

under  oath,  and that,  therefore, he  was  not entitled  to the

relief that he sought.  We agree.

          Dyer's sworn petition contained  nothing more than  the

bare  statement  that  he   received  ineffective  assistance  of

counsel.  While  some additional  allegations were  set forth  in

Dyer's  memorandum of  law, those  allegations  did not  fill the

void.   A habeas application must rest on a foundation of factual

allegations presented  under oath, either in  a verified petition

or supporting  affidavits.   See, e.g.,  Rule 2,  Rules Governing                                                

Section 2255 Proceedings,  28 U.S.C.   2255.  Facts alluded to in

an  unsworn memorandum will not  suffice.  See  Barrett v. United                                                                           

States,  965 F.2d  1184, 1195  (1st Cir.  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  constitutionally deficient  performance  on counsel's

part under  the familiar  test of  Strickland v.  Washington, 466                                                                      

U.S.  668 (1984).  According to this regime, a criminal defendant

who alleges  ineffective  assistance must  demonstrate  that  his

attorney's performance  was unreasonably deficient,  and that  he

was prejudiced  as a result of it.  See Scarpa v. DuBois, 38 F.3d                                                                  

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

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

prejudice prong of  the test requires  him to show that,  but for

his  counsel's  unprofessional  errors,  he probably  would  have

insisted on his right to  trial.  See Hill v. Lockhart,  474 U.S.                                                                

52, 59 (1985).

          In  light  of  these  authorities, we  think  that  the

district  court appropriately  dismissed Dyer's  habeas petition.

In  his brief, Dyer contends, inter alia, that his trial attorney                                                  

assured  him that  his sentence  would be  no more  than eighteen

months,  and that  there  was simply  "no way"  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  claim  of innocence  or  the

                                38

articulation of  any plausible defense that he  could have raised

had  he opted  for a  trial, is  insufficient to  demonstrate the

required  prejudice.  See United  States v. Horne,  987 F.2d 833,                                                           

835  (D.C. Cir.),  cert. denied,  114 S.  Ct. 153  (1993); United                                                                           

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

          To  add the  finishing touch,  the plea  agreement that

Dyer  signed stated  in so  many words  that  he faced  a maximum

possible sentence  of thirty  years' imprisonment.   The district

court  reinforced  this warning  during  the  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  if he received  a

harsher-than-expected  sentence,  he  would remain  bound  by his

plea.  And Dyer  also assured the court that no one  had made any

promises to him  anent the  prospective length  of his  sentence.

Thus,  regardless of  his  counsel's performance,  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  defeats  an                                                         

ineffective-assistance-of-counsel claim.  See  Scarpa, 38 F.3d at                                                               

8-9.   Since  we  find  no  cognizable  prejudice,  we  need  not

determine what Dyer's trial  attorney did or did not tell him, or

whether  the  attorney  lacked  familiarity  with the  sentencing

guidelines to  such  an  extent  as  to  render  his  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  petition without  first  pausing  to convene  an

evidentiary  hearing is meritless.  See, e.g., McGill, 11 F.3d at                                                               

226; United States v. Butt, 731  F.2d 75, 80 n.5 (1st Cir. 1984).                                    

His remaining claims  are unworthy of  detailed discussion.   The

lower  court  did  not  blunder in  summarily  dismissing  Dyer's

application for federal habeas relief.

VI.  CONCLUSION          VI.  CONCLUSION

          We  need go  no  further.   For  the reasons  discussed

herein,  we affirm the judgments  in the LaBonte  and Piper cases

(Nos. 95-1538  and 95-1226,  respectively);  remand for  possible

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

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

part and remand for  possible resentencing.  We intimate  no view

as to  how  the  district  court  should  resolve  the  remaining

resentencing questions.

So Ordered.          So Ordered.                    

                     Separate Opinion Follows  

                                40

            STAHL,  Circuit  Judge,  (concurring  in  part  and                      STAHL,  Circuit  Judge,  (concurring  in  part  and                                            

  dissenting in part).   With all due respect, I  disagree with            dissenting in part).

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

  U.S.C.      994(h)   supports   more   than   one   plausible

  interpretation.  In endeavoring  to set forth an analytically

  sound basis for their  decision, my colleagues find ambiguity

  where none  exists.   After careful  review, I believe  that,

  when  applied  to  defendants  subject  to  special  enhanced

  penalty provisions, the only plausible interpretation  of the

  phrase  "maximum term  authorized"  is the  enhanced  maximum

  punishment.   Furthermore,  once  the  phrase  "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  reaching their conclusion, my colleagues engage

  a full-blown  Chevron inquiry twice, carefully  analyzing the                                 

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

  and   "at  or  near."16    On  the  first  pass,  they  find,

                                                      

  16.  28 U.S.C.   994(h) provides:

            The  Commission  shall  assure  that  the
            guidelines  specify a sentence  to a term
            of  imprisonment at  or near  the maximum                                                               

                               -41-                                          41

  depending on  the meaning ascribed to  the term "categories,"

  that the  phrase "maximum term authorized"  is susceptible to

  two  different  plausible  interpretations.    If  the   term

  "categories"   is   defined  so   that   it  recognizes   the

  distinctions  between defendants subject  to special enhanced

  penalties and  those who are  not, then  the phrase  "maximum

  term  authorized" must  mean the  enhanced statutory  maximum

  when  referring to  the former  and the  unenhanced statutory

                                                      

            term   authorized   for   categories   of                                       
            defendants  in  which  the  defendant  is
            eighteen years old or older and 

            (1) has been  convicted of a  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.   [ ]  841),   sections
                 1002(a),  1005,  and  1009   of  the
                 Controlled  Substances   Import  and
                 Export Act (21  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.   [ ]  841),   sections
                 1002(a),  1005,  and  1009   of  the
                 Controlled  Substances  Import   and
                 Export Act (21  U.S.C. [  ]  952(a),
                 955, and 959), and the Maritime Drug
                 Law Enforcement Act (46  U.S.C. App.
                 [ ] 1901 et seq.)

  (Emphasis added.)

                               -42-                                          42

  maximum  when referring to the  latter.  They  define this as

  the  enhanced statutory maximum  ("ESM") interpretation.   On

  the  other hand,  my  colleagues contend,  that  if the  term

  "categories"  is  read more  broadly  such that  it  fails to

  recognize these distinctions, then  the phrase "maximum  term

  authorized" must  mean in all cases  the unenhanced statutory

  maximum  because  that  is   the  highest  possible  sentence

  applicable  to all defendants  in the category.   They define

  this   as   the    unenhanced   statutory   maximum   ("USM")

  interpretation.   My colleagues then  conclude that,  because

  both interpretations are  plausible, Congress has  not spoken

  clearly or without ambiguity on  the issue and, therefore, we

  should defer to the  Commission's choice between the two.   I

  disagree with this analysis because I do not believe that the

  USM  interpretation  is a  plausible  reading  of the  phrase

  "maximum term authorized."

            Principally,   I   find   the  USM   interpretation

  inherently implausible  because it effectively  nullifies the

  criminal history enhancements  carefully enacted in  statutes

  like  21 U.S.C.    841.   These  statutes, to  which Congress

  expressly  referred  in the  text  of    994(h),  provide  an

  intricate web of enhanced penalties  applicable to defendants

  who are repeat offenders or  whose offenses resulted in death

  or serious  bodily injury.  The  USM interpretation, however,

  completely disregards these enhanced penalties because, under

                               -43-                                          43

  that interpretation,  all defendants must be  sentenced at or

  near  the  unenhanced maximum  whether  or  not the  enhanced

  penalties  apply.    Recognizing that  Congress  specifically

  referred to these statutes in the text of   994(h),  it seems

  absurd to  suppose that Congress  did not intend  to preclude

  this  result.   A plausible  reading of  a statute  would not

  render  meaningless complete  sections of  other statutes  to

  which it refers.17  

            The  reasoning of the  District of Columbia Circuit

  in United States  v. Garrett,  959 F.2d  1005, 1010-11  (D.C.                                        

  Cir. 1992), firmly  supports this analysis.  In  Garrett, the                                                                    

  court  rejected   the  argument  that  the  guideline  phrase

  "Offense Statutory Maximum"  should be read  to refer to  the

  unenhanced statutory maximum.  Id.   The court explained that                                              

  such  an  interpretation (which  I note  necessarily requires

  interpreting the phrase "maximum term authorized" in   994(h)

  to mean  the unenhanced maximum)  would "thwart congressional

  intent."  Id.  at 1011.  The court  reasoned that to conclude                         

  that  "Congress  .  .  .  intended  to  erase  the  statutory

  distinctions  among  offenders  based either  on  their  past

                                                      

  17.  The majority  contends that  this argument is  of little
  moment  because a  Career  Offender guideline  using the  USM
  interpretation  as  espoused   by  Amendment  506  does   not
  technically  conflict  with 21  U.S.C.     841 or  the  other
  enhanced penalty statutes.   While I agree that there  may be
  no technical "conflict," I hardly take that as  evidence that
  Congress intended to permit  the Commission in interpreting  
  994(h) to nullify many of the special enhanced penalties.                             

                               -44-                                          44

  actions or on the  circumstances of the offense, distinctions

  carefully  set  forth  in  subsection  841(b)(1)(B) would  be                                                                         

  senseless."  Id.  (emphasis added).   While it  is true  that                            

  Garrett   involved  only   the  interpretation   of  "Offense                   

  Statutory  Maximum"  and  did   not  directly  consider   the

  statutory language,  I think its analysis  is informative and

  applies  with equal force to  the question at  hand.  Indeed,

  prior to  the promulgation  of Amendment 506,  the Commission

  defined  the guideline phrase  "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,  I  believe  the  legislative  history

  strongly   suggests  that  Congress  intended  "maximum  term

  authorized" to  refer, in  appropriate circumstances,  to the

  enhanced  maximum  penalty.   The Senate  Judiciary Committee

  noted that    994(h)  was enacted  to replace the  sentencing

  provisions  for "dangerous special  offenders" and "dangerous

  special drug offenders" provided  respectively by 18 U.S.C.  

  3575 (repealed 1984)  and 21  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  have  interpreted   "Offense  Statutory
  Maximum" similarly.  United  States v. Smith, 984 F.2d  1084,                                                        
  1086-87   (10th   Cir.)   (similarly  interpreting   "Offense
  Statutory  Maximum"), cert.  denied, 114  S. Ct.  204 (1993);                                               
  United  States  v. Amis,  926 F.2d  328,  330 (3d  Cir. 1991)                                   
  (same); United States v. Sanchez-Lopez, 879 F.2d 541, 558-560                                                  
  (9th Cir. 1989) (same).

                               -45-                                          45

  courts  to  sentence  "dangerous"  defendants  to  terms  "of

  imprisonment  longer  than  that  which  would ordinarily  be

  provided."     S.  Rep.  225   at  117,  reprinted   in  1984                                                                   

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

  970,  972  (1st  Cir.  1984)  (affirming  "dangerous  special

  offender"  sentence  that  exceeded  the  maximum  prescribed

  sentence  for  the  underlying  offense).   A  defendant  was

  subject  to  sentencing under  these  provisions  upon, inter                                                                         

  alia, a finding of  dangerousness.  Specifically, a defendant                

  was considered  dangerous if  a term of  imprisonment "longer                                                                         

  than  the  maximum  provided  in  the  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.    3575(f) and 21 U.S.C.   849(f))

  (emphasis  added).    As  this definition  makes  clear,  the

  purpose of these special offender statutes was to provide, in

  appropriate  circumstances,  enhanced punishment  beyond that

  otherwise  provided in  the underlying  statute.   See, e.g.,                                                                        

  United  States  v. Sutton,  415 F.  Supp. 1323,  1324 (D.D.C.                                     

  1976).   This is  exactly the same  rationale underlying  the

  enhanced penalty provisions found  in statutes like 21 U.S.C.

    841.  Because  Congress intended   994(h) to  address these

  "same  considerations,"  see S. Rep. 225 at 120, reprinted in                                                                         

  1984 U.S.C.C.A.N.  at 3303,  it seems reasonable  to conclude

                               -46-                                          46

  that Congress intended "maximum  term authorized" to mean the

  enhanced statutory maximum.19

            In sum, because the USM interpretation would render

  ineffective  the enhanced penalties provided in statutes like

  21 U.S.C.   841 and  because the legislative history strongly

  suggests  that Congress  intended  the  phrase "maximum  term

  authorized" to mean the enhanced statutory maximum, I believe

  deferring to the  Commission's interpretation  of the  phrase

  "maximum term authorized" in   994(h) is inappropriate.

            In passing, I further note that,  in large part, my

  colleagues'  argument turns  on  their analysis  of the  term

  "categories" found in   994(h).  Indeed, they can only import

  ambiguity into  the narrow phrase "maximum  term authorized,"

  by first  deeming the  expression "categories  of defendants"

  fatally   imprecise.     Moreover,   they  justify   the  USM

  interpretation  by  reasoning that  any  other interpretation

                                                      

  19.  In  concluding  that the  legislative  history fails  to
  disprove the plausibility  of the unenhanced  interpretation,
  the majority quotes the Judiciary Committee's opinion that   
  994(h) and  994(i) would "assure the  consistent and rational
  implementation  of  the  Committee's  view  that  substantial
  prison terms should  be imposed on repeat  violent and repeat
  drug offenders."   S. Rep. No. 225 at  175, reprinted in 1984                                                                    
  U.S.C.C.A.N. at 3358.   While this statement clearly suggests
  that  the  Committee   trusted  the   Commission  more   than
  individual  judges  to  see that  recidivist  defendants were
  sentenced  at or near the  maximum term authorized,  it in no
  way suggests  that Congress intended to  grant the Commission
  the  authority  to  disregard  the   sentencing  enhancements
  provided in 21 U.S.C.   841 and other similar statutes.

                               -47-                                          47

  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,  I  note that

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

  I  believe "maximum"  is naturally  a specific,  precise one.

  Hence,  I find it eminently  more plausible, in this context,

  to read the phrase "categories of defendants"  narrowly -- as

  referring  to  classes  of  defendants  subject  to  specific

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

  term  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  at or  near  the

  unenhanced maximum, which, with respect  to those defendants,

  is not the authorized statutory maximum).

            Second,  I  do  indeed  believe  that  the   phrase

  "categories of defendants"  is perhaps better  understood, to

  use my colleagues' phraseology,  as a "linguistic accident or

  an  awkward locution."  As  I note infra,  at 11-13, Congress                                                    

  added     994(h) to  the  enabling  legislation late  in  the

  drafting process.   The subsection derives  from a sentencing

  provision attached to other legislation that  directed judges

  to sentence career criminals to the maximum possible penalty.

  In attaching it to the enabling legislation, Congress rewrote

                               -48-                                          48

  the provision borrowing the phrase "categories of defendants"

  and other language from the already-existing   994(i).20  

            In contrast with   994(h),    994(i)'s usage of the

  phrase  "categories of  defendants" is  sensible in  light of

  that  subsection's   structure.    First,     994(i)  broadly

  instructs the  Commission to assure that  various "categories

  of  defendants"  shall receive  "substantial"  sentences, and

                                                      

  20.  28 U.S.C. 994(i) provides:

                 The Commission shall assure that the
            guidelines  specify  a   sentence  to   a
            substantial  term   of  imprisonment  for                                       
            categories  of  defendants  in which  the
            defendant --

            (1) has  a history  of two or  more prior
            Federal,    State,   or    local   felony
            convictions  for  offenses  committed  on
            different occasions;
            (2) committed  the offense  as part  of a
            pattern  of  criminal conduct  from which
            the   defendant  derived   a  substantial
            portion of the defendant's income;
            (3) committed the offense  in furtherance
            of  a  conspiracy  with  three   or  more
            persons   engaging   in   a  pattern   of
            racketeering   activity   in  which   the
            defendant participated in a managerial or
            supervisory capacity;
            (4)  committed a  crime of  violence that
            constitutes  a  felony  while on  release
            pending  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   401   or   1010   of   the
            Comprehensive  Drug Abuse  Prevention and
            Control  Act of 1970  (21 U.S.C. [  ] 841
            and 960), and  that involved  trafficking
            in a substantial quantity of a controlled
            substance.

                               -49-                                          49

  then  it  proceeds to  list  five  different "categories"  of

  defendants  to which the instruction applies.  In contrast,  

  994(h)'s usage  of the term  "categories" is peculiar.   See,                                                                        

  supra, note 16.  First,   994(h)'s sentencing command  (i.e.,                                                                        

  "at or  near the  maximum term  authorized") is  more precise

  than    994(i)'s  broad command  (i.e., "substantial"),  and,                                                  

  second, its structure is different:  it does not sequentially

  enumerate  separate  categories of  defendants  to  which the

  command applies.  Hence,  I believe the parallel language  in

  the  two  subsections  is  best  understood  as   principally

  revealing Congress's intent  that the two  subsections should

  be  read together.   In  other words,  by using  the parallel

  language,  Congress awkwardly  expressed  its  intent that   

  994(h)  should  be read  as carving  out  a narrow  subset of

  criminals, otherwise  subject to  the broader    994(i), that

  should  be sentenced, not just  substantially, but at or near

  the maximum penalty possible.

            In  any event,  because I  believe that  the phrase

  "maximum term  authorized" cannot plausibly be interpreted to

  mean  the   unenhanced  maximum,  I  likewise   believe  that

  "categories of defendants" must be read narrowly.

                               II.                                         II.

            Deciding that the phrase "maximum  term authorized"

  means,  in   the  appropriate  circumstances,   the  enhanced

  statutory maximum does  not end  the analysis.   It is  still

                               -50-                                          50

  necessary   to   consider  whether   the   sentencing  scheme

  propounded by Amendment 506 nonetheless  satisfies Congress's

  directive  to  sentence career  offenders  "at  or near"  the

  maximum.21

            The defendants  contend that, when read in context,

     994(h)'s "at or near" directive  is unclear and ambiguous,

  see  United States v. Fountain,  885 F. Supp.  185, 188 (N.D.                                          

  Iowa 1995), and, accordingly, this court should  defer to the

  Commission's  reasonable  interpretation.     Moreover,   the

  defendants  argue  that      994(h)  is  only  one   of  many

  congressional   directives  which  the   Commission  had  the

  responsibility  and  duty  to harmonize  in  promulgating the

  sentencing  guidelines.   Specifically,  the  defendants note

  that one of the main purposes of the Sentencing Commission is

  to reduce "unwarranted disparities" in  sentencing and, thus,

  assure  that  individuals  who  have  committed similar  acts

  receive similar sentences.  See 28 U.S.C. 991(b)(1)(B).  They                                           

  maintain  that Amendment  506 achieves  this goal  because it

  eliminates "unwarranted" disparity resulting from exercise of

  unchecked prosecutorial discretion in deciding whether or not

  to seek  the enhanced penalties  provided in statutes  like  

  841.  

                                                      

  21.  I  do not restate the  facts or describe  how the Career
  Offender guideline  operates.   For a thorough  discussion of
  these matters see Majority Opinion at 4-11.                                              

                               -51-                                          51

            In response, the government contends that Amendment

  506  is invalid  because it  is  inconsistent with  the plain

  language of 28 U.S.C.    994(h).  The government  argues that

  the sentencing  ranges  resulting  from  application  of  the

  amendment do not satisfy   994(h)'s clear command that career

  offenders  should be sentenced "at or  near" the maximum term

  authorized.  I agree with the government.

            First, in analyzing 28  U.S.C.   994(h), I disagree

  with the  defendants that  its command that  career offenders

  should receive  sentences "at or near"  the statutory maximum

  is unclear and ambiguous.   Though Congress undoubtedly could

  have  been   more  precise   in  limiting  the   Commission's

  discretion in this  context, the  phrase "at or  near" has  a

  fairly  unambiguous  and  narrow ordinary  meaning.    Common

  definitions of  the term "near"  specify that  an object  (or

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

  or "close to" the  other object (or limit).   Webster's Third                                                                         

  New  International  Dictionary  (1986); accord  The  American                                                                         

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

  "To, at, or within a  short distance or interval in space  or

  time.").   The Commission's attempt  to implement the  "at or

  near" directive (as  ultimately expressed in Amendment  506),

  however, does not satisfy this  standard.  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.

                               -52-                                          52

    841(b)(1)(C) to a maximum possible  penalty of thirty years

  is  assigned a  base  sentencing range  of  only 210  to  262

  months.   Such a range  is but 58.3  to 72.78 percent  of the

  maximum   possible  term   of  thirty  years   (360  months).

  Notwithstanding  a certain  amount of  ambiguity in  the term

  "near"  at the  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    994(h) with    994(i)

  makes clear beyond doubt  that Congress intended the language

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

  prescribe sentencing ranges for career offenders.  Subsection

  994(i), which  was added to  the enabling legislation  in the

  Senate  prior to the addition  of   994(h),22   provides that

                                                      

  22.  The guidelines enabling legislation,  ultimately enacted
  in 1984, has  a long  and complex legislative  history.   See                                                                         
  generally Kate Stith &amp;  Steve Y. Koh, A Decade  of Sentencing                                                                         
  Guidelines: Revisiting  the Role of the  Legislature, 28 Wake                                                                
  Forest L. Rev. 223  (1993).  Indeed, the  legislation enacted
  in  1984 traces  its  roots to  a  sentencing reform  measure
  originally introduced  by Senator  Kennedy in 1975.   Id.  at                                                                     
  225.  Subsection 994(i) first appeared in a Senate version of
  the legislation in 1978.  See S. 1437, 95th Cong., 2d Sess.                                           
  124  (1978) (proposed tit. 28,   994(h)); 124 Cong. Rec. 1463
  (1978).   The Senate subsequently  added   994(h)  to a later
  version of the legislation  in 1983.  See S. 668, 98th Cong.,                                                     
  1st Sess.    7 (1983  (proposed tit. 28,  994(h)); 129  cong.
  Rec.  22,883  (1983).    Both  provisions were  part  of  the
  guidelines enabling  legislation ultimately enacted  in 1984.
  Pub.  L. No.  98-473,    217, 98  Stat. 2021-22  (codified as
  amended 28 U.S.C.    994(h),(i)).

                               -53-                                          53

  the "Commission  shall assure  that the guidelines  specify a

  sentence to a substantial  term of imprisonment" for habitual                                           

  offenders,  racketeers, defendants  who  commit crimes  while

  released on bail,  and felony  drug offenders.   28 U.S.C.   

  994(i) (emphasis  added).23   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  have "a history of  two or more  prior

  Federal, State,  or  local felony  convictions  for  offenses

  committed on  different occasions").   Subsection 994(h),  on

  the  other hand, applies  to a narrower  subset of defendants

  that Congress  felt must  be punished even  more stringently.

  In offering the original version of   994(h), Senator Kennedy

  argued  that   the  amendment  was  needed   because  "Career

  criminals  must be put on notice  that their chronic violence

  will  be  punished  by  maximum prison  sentences  for  their                                                             

  offenses, without  parole."24   128 Cong. Rec.  26,518 (1982)                                     

  (emphasis  added).   By adding    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  from  an  amendment  originally
  offered in 1982  by Senator Kennedy to S. 2572.   See S. Rep.                                                                 
  225 at 175, reprinted  in 1984 U.S.C.C.A.N. 3182, 3358.   The                                     
  1982  amendment  provided in  relevant  part  that "A  career
  criminal  shall  receive  the maximum  or  approximately  the
  maximum penalty  for the  current offense."   128 Cong.  Rec.
  26,511-12 (1982).

                               -54-                                          54

  imprisonment" as prescribed by 994(i), but  instead a term of

  imprisonment  that  was at  or  near  the statutory  maximum.

  Indeed,  if    994(h)  is only,  as  the defendants  argue, a

  general  admonishment  --  which  the  Commission  has  broad

  discretion to  implement --  to punish career  offenders more

  harshly than  it otherwise would, the  subsection adds little

  direction not already provided by   994(i).25   

            Second,   the  basic  structure   of  the  enabling

  legislation  undercuts  the  defendants' argument  that  this

  court should defer to the Commission's attempt to harmonize  

  994(h)  with  other  purportedly   conflicting  congressional

  directives.    The  goal of  avoiding  unwarranted sentencing

  disparities is, indeed, one  of the broad underlying purposes

  that   motivated  Congress's   creation  of   the  Sentencing

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

  restated  the  goal as  one of  the  directives to  which the

  Commission should "pay particular attention"  in promulgating

  the guidelines, see 28  U.S.C.   994(f), it is  nonetheless a                               

  general objective not specific  to any particular  guideline.

                                                      

  25.  The  point made here, that a comparison of   994(h) with
     994(i) clearly  evinces  Congress's intent  in enacting   
  994(h) to  narrow the  Commission's discretion  in sentencing
  career criminals, provides further support for my analysis in
  part I.  In other words, it strikes me as quite odd to  note,
  on  the   one  hand,  that  Congress   clearly  directed  the
  Commission  to  sentence  career  criminals at  or  near  the
  maximum,  while  noting,  on  the  other,  that  it gave  the
  Commission complete  discretion to define  what that  maximum
  is.

                               -55-                                          55

  The directive expressed by   994(h), on the other  hand, is a

  specific  command aimed at  a narrow class  of defendants who

  are established as career criminals.  In essence,   994(h) is

  a specific exception, dealing with a narrow class of criminal

  offenders, that  limits the  discretion otherwise granted  to

  the Commission  to create sentencing guidelines.   Therefore,

  while  the   Commission  should   strive  to   harmonize  the

  implementation  of      994(h)  with  other,  more   general,

  congressional directives, to the  extent that   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  the principal justifications cited  by the Commission

  in  promulgating  Amendment 506  was  the  perceived need  to

  eliminate  the  disparity  resulting  from  the  exercise  of

  prosecutorial discretion  in deciding whether or  not to seek

  maximum penalty enhancements.  See U.S.S.G. App. C, Amendment                                              

  506, at 409  (November 1994).   A review  of the  legislative

  history,  however,  strongly  suggests  that  the  sentencing

  disparity that Congress hoped to eliminate did not stem  from

  prosecutorial  discretion,  but,  instead,  from   two  other

  sources:   (1) unchecked judicial  discretion in  formulating

  sentences, and  (2) the  imposition  of indefinite  sentences

                               -56-                                          56

  subject  to parole  board  review.   See S.  Rep. 225  at 38,                                                    

  reprinted   in   1984   U.S.C.C.A.N.   3182,   3221.     More                          

  specifically, it  is apparent that  Congress was particularly

  concerned  by  the  fact  that  different  judges  --  due to

  differing views  on the purposes  and goals of  punishment --

  tended  to  mete  out substantially  different  sentences  to

  similarly situated individuals convicted  of the same crimes.

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

  29.26   It  is  not  apparent,  however,  that  Congress  was

  overly   (or  even  marginally)  concerned  with  disparities

  resulting   from   prosecutorial  discretion   over  charging

  decisions.  Indeed, one of the principal criticisms expressed

  against adopting the enabling legislation was that sentencing

  guidelines  would simply  shift the  unchecked discretion  in

  sentencing  from judges to prosecutors.   See S.  Rep. 225 at                                                         

  63,  reprinted in 1984 U.S.C.C.A.N.  at 3246.  Congress could                             

  hardly  have been  seeking  to reduce  sentencing disparities

  arising  from exercise  of prosecutorial discretion  when the

  legislation under consideration  would, if anything,  enhance

  that  discretion.   Hence, the  unwarranted disparities  that

  Congress  intended  the  Commission  to  correct  were  those

                                                      

  26.  Senator Kennedy  argued that sentencing  guidelines were
  necessary   because  "[f]ederal  criminal   sentencing  is  a
  national  disgrace.   Under  current  sentencing  procedures,
  judges  mete out an unjustifiably wide  range of sentences to
  offenders  convicted of similar crimes."  129 Cong. Rec. 1644
  (1984).

                               -57-                                          57

  primarily   arising   from   judicial,   not   prosecutorial,

  discretion.

            Finally,  as I  have  noted,    994(h) specifically

  refers  to the  enhanced penalty statutes  (e.g. 21  U.S.C.  

  841) to which it applies.  These statutes, in turn, expressly

  vest discretion in the prosecutor to seek application  of the

  criminal history enhancements.   See 21 U.S.C.   851.   Thus,                                                

  it is  reasonable to  conclude that Congress  understood that

  its  command   to  sentence  at  or  near  the  maximum  term

  authorized could result in disparate sentences for  similarly

  situated  individuals  depending   on  whether  or   not  the

  prosecutor had chosen to seek the enhanced penalties provided

  by the underlying  statutes.  Thus,  I think the  disparities

  that  result  from  an  implementation of     994(h)'s  clear

  directive  to sentence "at or  near" the maximum  are not the

  "unwarranted   disparities"   that   Congress   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  clear command.  In sum,  I believe

  the  amendment   is  inconsistent  with   Congress's  clearly

  expressed   intent   to  limit   narrowly   the  Commission's

  discretion   to  establish   sentencing  ranges   for  career

  offenders.   Accordingly, I dissent with  respect to parts I-

  IV.

                               -58-                                          58
