
USCA1 Opinion

	




                            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 &               ________________              ______________________________          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  &  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 & 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), &  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) &          (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) & (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 &  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
