                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-1995

United States v Corrado
Precedential or Non-Precedential:

Docket 93-1086




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"United States v Corrado" (1995). 1995 Decisions. Paper 121.
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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                            ___________

                            No. 93-2086
                            ___________


          UNITED STATES OF AMERICA


                           vs.

          ROBERT CORRADO

               Robert A. Corrado,

                                 Appellant.


                            ___________


          APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                (D.C. Criminal No. 91-cr-00055-4)

                            ___________


                     ARGUED NOVEMBER 2, 1994

     BEFORE:   GREENBERG, SCIRICA, and LEWIS Circuit Judges.

                      (Filed     May 8, 1995)

                            ___________

Scott DiClaudio (ARGUED)
Louis T. Savino, Jr.
Louis T. Savino & Associates
15th and JFK Boulevard
Two Penn Center, Suite 1516
Philadelphia, PA 19102

          Attorneys for Appellant
Walter S. Batty, Jr. (ARGUED)
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

            Attorney for Appellee

                            ____________

                        OPINION OF THE COURT
                            ____________



LEWIS, Circuit Judge.

            This appeal deals principally with only one issue:

whether the district court properly relied upon section

1B1.11(b)(2) of the United States Sentencing Guidelines

("U.S.S.G." or "guidelines") in calculating the sentence it

imposed in this case.    Section 1B1.11(b)(2) is, in essence, the

United States Sentencing Commission's codification of the

so-called "one book rule," the practice of applying only one

version of the guidelines when calculating a defendant's

sentence.    Prior to its codification, we had expressly

disapproved the "one book rule"; thus, we are called upon to

reconcile our prior rejection with its subsequent codification.

Because we conclude that the Sentencing Commission's adoption of

the "one book rule" is binding, we will affirm the district

court's judgment of sentence in this regard.1

1
 .    Corrado's appeal raised three additional challenges to the
sentence the district court imposed, but because of certain
concessions made by both sides prior to, during and after oral
argument (some of which will require a remand), the only "live"
issue on appeal is the one discussed above.

      Specifically, Corrado claimed that the district court erred
in computing his criminal history score by using a prior
                               I.

          During a period from June 1985 through May 1988,

Corrado was involved in the operation of a stolen car ring and

"chop shop," as well as a conspiracy to defraud Stereo

Discounters Electronic World, Inc., an electronics retailer.

Corrado entered a guilty plea to two counts of a 38-count

indictment and, in November 1993, was sentenced to two concurrent

57-month terms of imprisonment.2    Pursuant to section
(..continued)
misdemeanor shoplifting conviction which was (a) uncounseled, and
(b) constituted a "local ordinance violation." Corrado later
withdrew both contentions, acknowledging that the Supreme Court
has explicitly held that a court may consider a defendant's prior
uncounseled misdemeanor conviction without offending the Sixth
Amendment right to counsel (Nichols v. United States, 114 S. Ct.
1921, 1928 (1994)), and that the offense had been prosecuted as a
state misdemeanor rather than a local ordinance violation.

      Corrado had also claimed that the district court improperly
considered a prior conviction for interstate transportation of
stolen goods which had been set aside under the Youth Corrections
Act ("YCA"), 18 U.S.C. § 5021(a), and erred in imposing two
five-year terms of supervised release, which were in excess of
the statutory maximum set forth in U.S.S.G. §5D2.1(b), which
provides for a term of "at least two but not more than three
years . . . ." The government conceded that the terms of
supervised release exceeded the statutory maximum and should be
reduced on remand, and we agree. The government also conceded
that if Corrado's prior conviction for interstate transportation
of stolen goods was, in fact, set aside under the YCA, it should
not have been included in computing Corrado's criminal history
score. We agree with the government that "this question should
be remanded to the district court for a determination of whether
or not the particular sentence at issue here . . . was a YCA
sentence." Appellee's Br. at 22. Accordingly, we will remand to
the district court for resentencing under U.S.S.G. §5D1.2(b) with
respect to the terms of supervised release, and for
reconsideration of Corrado's criminal history score following a
determination of whether the conviction was set aside under the
YCA.
2
 .    The sentence was based on a criminal history category of V
and a total offense level of 19. The number 19, which represents
1B1.11(b)(1) of the November 1993 version of the guidelines (the

edition in effect at the time of Corrado's sentencing), the

district court looked to the 1987 version of the guidelines (the

edition in effect at the time Corrado committed his crimes) to

calculate the sentence.   The court pursued this regimen because

application of the 1993 version of the guidelines would have

resulted in Corrado receiving a more severe sentence than he

could have anticipated when he committed his crimes.   See

U.S.S.G. §1B1.11(b)(1) (1993) (directing courts to use the

guidelines in effect at the time the offense was committed if the

guidelines in effect at the time of sentencing would violate the

Constitution's ex post facto clause).   As part of the calculation

of Corrado's sentence, the district court granted the two-level

reduction for acceptance of responsibility available under the

1987 guidelines.   See U.S.S.G. §3E1.1(a) (1987).

          Corrado now argues that the district court erred

because it did not grant him a three-level downward adjustment --

the maximum reduction available under the 1993 version of the

guidelines for acceptance of responsibility.   See U.S.S.G. §3E1.1

(1993).
(..continued)
the higher of the two offense levels produced after levels for
each count were calculated, see U.S.S.G. §3D1.2(d) (Nov. 1987)
(requiring that counts be grouped when they involve substantially
the same harm) and §3D1.3(b) (Nov. 1987) (requiring use of
highest offense level produced when offenses are grouped), was
based upon a base offense level of six; which was increased by
eight due to the amount of monetary loss involved; which was then
increased by two for more than minimal planning; then by three
because Corrado was a manager; then by two for obstruction of
justice; and which was then decreased by two for acceptance of
responsibility.
          We have jurisdiction under 18 U.S.C. § 3742(a).

                               II.

          As a general rule, a defendant's sentence should be

based on the guidelines "that are in effect on the date that the

defendant is sentenced."   United States v. Menon, 24 F.3d 550,

566 (3d Cir. 1994); United States v. Cherry, 10 F.3d 1003, 1014

(3d Cir. 1994); United States v. Kopp, 951 F.2d 521, 526 (1991);

18 U.S.C. § 3553(a)(4); U.S.S.G. §1B1.11(a) (1993).    When,

however, the retroactive application of the version of the

guidelines in effect at sentencing results in more severe

penalties than those in effect at the time of the offense, the

earlier version controls, United States v. Seligsohn, 981 F.2d

1418, 1424 (3d Cir. 1992), citing Kopp, 951 F.2d at 526; see also

United States v. Pollen, 978 F.2d 78, 90 (3d Cir. 1992); United

States v. Chasmer, 952 F.2d 50, 52 (3d Cir. 1991); U.S.S.G

§1B1.11(b)(1) (1993), since, as already noted, to apply a change

in the guidelines that enhances the penalty would offend the ex

post facto clause of the United States Constitution.    See Miller

v. Florida, 482 U.S. 423, 431-35 (1987); Menon, 24 F.3d at 566;

U.S. Const. Art. I, § 9.   Moreover, if the application of the

guideline manual in effect at the time of sentencing would

violate the ex post facto clause, the manual in effect on the
date of the offense should be used in its entirety.    U.S.S.G.

§1B1.11(b)(2) (1993) (emphasis added).   The practice of applying
only one version of the guidelines when calculating a defendant's

sentence has been referred to as the "one book rule".3

           It is undisputed that the district court correctly

looked to the 1987 version of the guidelines in determining

Corrado's sentence.   Indeed, there is no question but that

Corrado would have received a more severe sentence had the 1993

guidelines been applied.   Under the 1987 guidelines, Corrado's

offense level was increased by eight levels to account for the

monetary loss he caused, while under the 1993 guidelines the same

loss would have resulted in an eleven-level increase.4     Compare

U.S.S.G. §2F1.1(b)(1)(I) (1987) with U.S.S.G. §2F1.1(b)(1)(L)

(1993).   This difference meant that, even with the three-level

acceptance of responsibility adjustment, Corrado's applicable

range under the 1993 guidelines would have been 70 to 87 months,

3
.     Section 1B1.11(b)(2) provides in pertinent part:

           The Guidelines Manual in effect on a
           particular date shall be applied in its
           entirety. The court shall not apply, for
           example, one guideline section from one
           edition of the Guidelines Manual and another
           guideline section from a different edition of
           the Guidelines Manual.

U.S.S.G. §1B1.11(b)(2), p.s. (1992).
4
 .    The parties stipulated that the loss caused by each of the
two counts of conviction was $600,000, or a total of $1.2
million. Thus, since the grouping requirements provide that the
dollar amounts be aggregated, the Presentence Report indicated
that the total amount of loss, for the purposes of calculating
Corrado's sentence, was $1.2 million. Presentence Report at 9,
¶ 41; see U.S.S.G. §3D1.2(d) (1987). The district court,
however, found that the total monetary loss was "less than
$1,000,000." App. at 10. This finding does not affect our
analysis.
while under the 1987 guidelines, with the two-level reduction,

his sentencing range was only 57 to 71 months.

                                III.

            Corrado suggests that the district court should have

used the 1987 version of the guidelines when calculating his

adjusted offense level and the 1993 version when determining the

maximum permissible downward adjustment for acceptance of

responsibility.   He argues that because 18 U.S.C. § 3553(a)(4)

requires that sentences be calculated according to the guidelines

in effect at the time of sentencing, he is entitled to the

benefit of the 1993 provision governing acceptance of

responsibility.   In essence, Corrado challenges the district

court's decision to apply the 1987 guidelines as a whole rather

than considering each provision in isolation and applying only

those provisions from the 1987 version of the guidelines which

are more favorable.   In support of his position, Corrado advances

two distinct arguments.   First, he claims that the district court

was free to disregard section 1B1.11(b)(2) because it is "not a

guideline as such, rather it is a policy statement[,] . . .

[which is] not binding on the sentencing court."    Appellant's Br.

at 17-18.   Corrado also contends that the application of section

1B1.11, itself, violates the ex post facto clause; according to

Corrado, but for that provision, which was added to the

guidelines after he committed his crimes, the district court

would have been free to apply the 1987 guidelines in determining

his adjusted offense level and the 1993 provision for acceptance
of responsibility -- a process which would have resulted in a

more favorable sentence.

           We have plenary review of issues of law raised by the

application of the guidelines.    United States v. Mobley, 956 F.2d

450, 451 (3d Cir. 1992).   We will address Corrado's contentions

in turn.

                                  A.

           Corrado's claim that the district court was not bound

to follow section 1B1.11(b)(2) because it is a policy statement

rather than a guideline is, quite simply, mistaken.    The

Guideline Manual contains three varieties of text:    guidelines

provisions, policy statements and commentary.     Title 28 of the

United States Code at section 994, draws an unequivocal

distinction between "guidelines," 28 U.S.C. § 994(a)(1), and

"general policy statements regarding the application of the

guidelines," 28 U.S.C. § 994(a)(2), as do other sections of the

statute.   See, e.g., 28 U.S.C. § 994(a)(3) (referring

specifically to "guidelines or general policy statements");

§ 994(c) (referring specifically to "guidelines and policy

statements").   Policy statements, unlike the guidelines, are not

subject to formal legislative review and do not have the same

degree of authority as guidelines.     See United States v. Gaskill,
991 F.2d 82, 85 (3d Cir. 1993).    The Supreme Court, however, has

stated that "[t]he principle that the Guidelines Manual is

binding on federal courts applies as well to policy statements."

Stinson v. United States, 113 S. Ct. 1913, 1917 (1993).
Furthermore, where "a policy statement prohibits a district court
from taking a specified action, the statement is an authoritative

guide to the meaning of the applicable guideline."   Williams v.

United States, 503 U.S. 193, 201 (1992);5 United States v.

Reilly, 33 F.3d 1396, 1424 n.21 (3d Cir. 1994).   In this case,

the policy statement at issue expressly prohibits district courts
5
 .    Corrado urges us to consider United States v. Dawson, 990
F.2d 1314 (D.C. Cir. 1993), wherein the Court of Appeals for the
District of Columbia limited Williams v. United States, 112 S.
Ct. 1112, 1119 (1992), to situations in which a policy statement
explains an applicable guideline. In this regard, the Dawson
court stated:

          The Government can take no comfort in
          [Williams] which it cited for the general
          proposition that there is no meaningful
          distinction between the guidelines and policy
          statements . . . . The Court in Williams did
          not address whether a policy statement
          promulgated in the absence of a corresponding
          guideline is a valid exercise of the
          Commission's authority. Rather, the Court
          apparently assumed that the policy statement
          at issue in Williams explained an applicable
          guideline. By contrast, in this case there
          is no guideline applicable to the
          determination . . . .

Dawson, 990 F.2d at 1319.

      Corrado suggests that this case is analogous to Dawson
because section 1B1.11(b)(2) "was not promulgated to explain an
underlying guideline, rather, it is a policy statement which
stands alone, seeking to reconcile 18 U.S.C § 3553(a)(4),(5)[;]
the ex post facto clause[;] congressional intent and the
Commission's own policy concerns." Appellant's Br. at 19.
Although we do not read Williams as narrowly as the Dawson court
did, we do not believe the more limited view would change the
result in this case. Corrado correctly notes that section
1B1.11(b)(2) does not correspond to a particular guideline. The
policy statement does, however, explain how the applicable
guidelines shall be applied. The fact that section 1B1.11(b)(2)
pertains to many guidelines rather than a single guideline is, in
our view, of little significance to the determination of whether
the section is binding on sentencing courts.
from doing precisely what Corrado suggests the district court

here should have done -- namely, to mix and match provisions from

different versions of the guidelines in order to tailor a more

favorable sentence.   Because of its prohibitive nature, as well

as the fact that we believe applying various provisions taken

from different versions of the guidelines would upset the

coherency and balance the Sentencing Commission obviously

intended in promulgating the guidelines, see United States v.

Kikamura, 918 F.2d 1084, 1109 (3d Cir. 1990), we conclude that

section 1B1.11(b)(2) is binding and, as such, was properly

followed by the district court in this case.

           We need not reach Corrado's claim that the district

court "was obligated to . . . follow the approach established by

the Third Circuit" in Kopp and Seligsohn.   See Appellant's Br. at

19.   Although we previously held that the "so-called [one book]

rule is inconsistent with United States v. Kopp and other cases

in this Court[,]" and "expressly disapprove[d] of the `one book'

practice as in conflict with the Kopp opinion[,]" Seligsohn, 981

F.2d at 1424, the Sentencing Commission, through its adoption of

section 1B1.11(b)(2), has effectively overruled those opinions

insofar as they conflict with the codification of the "one book

rule."   Of course, we hasten to note that to the extent these

decisions do not conflict with section 1B1.11(b)(2), their

vitality remains.
                                  B.

             Corrado's second claim -- that because the "one book

rule" was not in effect at the time of his offenses, its

application violates the ex post facto clause -- is likewise

unavailing.     The ex post facto clause "forbids the imposition of

punishment more severe than the punishment assigned by law when

the act to be punished occurred."      Weaver v. Graham, 450 U.S. 24,

28 (1981).     Significantly, Corrado's sentence was, in fact,

imposed pursuant to the law in effect at the time he committed

his crimes.     Corrado had "fair warning" of the specific

punishment prescribed for his crimes, see Miller v. Florida, 482

U.S. at 430-431, and of the maximum available reduction for

acceptance of responsibility which was two levels.      It is true

that Corrado could not have predicted that the "one book rule"

would have required him to be sentenced under the 1987 version of

the guidelines, thus prohibiting him from receiving an additional

one-level decrease for acceptance of responsibility.      Of course,

it is equally true that Corrado could not have forecast that a

more favorable provision for acceptance of responsibility might

exist in 1993.     But the impossibility of prognostication under

these circumstances is not at all analogous to "the lack of fair

notice" which, from the outset, has been recognized as central to

the ex post facto prohibition.    See Miller, 482 U.S. at 430,

citing Weaver, 450 U.S. at 30.     The ex post facto clause protects

defendants from future legislation which "increases punishment

beyond what was prescribed when the crime was consummated."      Id.
          The sentencing guidelines are subject to continuous

review and revision.   Some changes might benefit a defendant

while others might operate to his or her detriment.   In this

case, the application of the 1987 guidelines, pursuant to section

1B1.11(b)(2), resulted in a sentence of at least thirteen months

less than what Corrado would have received under the 1993

guidelines.   In our view, where, as here, the applicable

guidelines overall work to the defendant's advantage in terms of

the sentence imposed, there is no ex post facto violation.    See

United States v. Bertoli, 40 F.3d 1384, 1404 n.17 (3d Cir. 1994).

                               IV.

          In determining that section 1B1.11(b)(2) is binding and

that its application does not offend the ex post facto clause, we

join the majority of other courts of appeal which have already

upheld the application of the "one book rule."   See e.g. United

States v. Nelson, 36 F.3d 1001, 1004 (10th Cir. 1994) (stating

that a defendant may not select piecemeal from different versions

of the guidelines to come up with the most advantageous

combination of provisions from the two books); United States v.
Springer, 28 F.3d 236, 237-38 (1st Cir. 1994) (upholding section

1B1.11(b)(2) and finding application of the one book rule did not

violate the ex post facto clause); United States v. Lance, 23

F.3d 343, 344 (11th Cir. 1994) (refusing to "mix and match"

amended provisions to reach a more favorable sentence); United

States v. Boula, 997 F.2d 263, 265-66 (7th Cir. 1993) (refusing

to apply guidelines in "piecemeal fashion"); United States v.
Warren, 980 F.2d 1300, 1305-06 (9th Cir. 1992) (rejecting
"piecemeal application of the guidelines"); United States v.

Lenfesty, 923 F.2d 1293, 1299 (8th Cir. 1991) (refusing

defendant's request to receive application of favorable change in

guidelines while continuing to receive the benefit of a provision

under previous version of the guidelines); United States v.

Stephenson, 921 F.2d 438, 441 (2d Cir. 1990) (concluding that

"applying various provisions from different versions of the

guidelines would upset the coherency and balance the Commission

achieved in promulgating the Guidelines").   In addition, and

perhaps more important, our conclusion is consistent with the

Commission's obvious intention that the guidelines operate as a

cohesive and integrated whole.

                                 V.

          For the reasons set forth above, we will affirm the

district court's application of the "one book rule."   We will,

however, remand to the district court for resentencing and

reconsideration in accordance with this opinion.
_________________________
