No Crack Reduction for Career Offenders Even if Sentence is Based On the Crack Range

In United States v. Ware, 2012 WL 4216831 (3d Cir. Sept. 21, 2012) Defendants, each designated career offenders, were ultimately sentenced based on the federal crack cocaine guidelines through a variance and a departure. Each moved for sentence reductions under 18 U.S.C. § 3582(c)(2), based on the amended crack cocaine guidelines implementing the Fair Sentencing Act of 2010.

In the first case, Ware, the district court granted the motion for sentence reduction, reasoning that the sentence was “based on” the crack guideline (as required in 18 U.S.C. § 3582) as that term was defined by the plurality and Justice Sotomayor in Freeman v. United States, 131 S.Ct. 2685, 2695 (2011) (holding that “if a [plea agreement pursuant to Rule 11(c)(1)(C) ] expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission, the term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sentence reduction under § 3582(c)(2).”). The district court held that a newly amended application note in U.S.S.G. § 1B1.10 defining “applicable guideline range” to mean pre-departure or pre-variance range, thus precluding eligibility for career offenders, was invalid because it conflicted with the meaning of “based on” in the federal statute as defined by Freeman. The government appealed.

In the second case, Stratton, the district court declined to reduce the sentence after the 2010 amendments, finding Stratton ineligible because of the Commission’s new commentary and rejecting his argument that the new commentary was invalid. Defendant also appealed, and the cases were consolidated.

The Third Circuit reversed the decision in Ware and upheld that in Stratton. The Court opened its analysis by noting that the Sentencing Commission is authorized by statute to determine “in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” 28 U.S.C. § 994(u). Consequently, the Commission’s amended commentary is binding unless it conflicts with a statute’s plain language. citing United States v. LaBonte, 520 U.S. 751, 757 (1997). The amended commentary in question reads:

… Eligibility for consideration under 18 U.S.C. 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range (i.e., the guideline range that corresponds to the offense level and criminal history category determined pursuant to 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance)….U.S.S.G. § 1B1.10 cmt. 1(A).

Thus, the commentary precludes a reduction in any case where a sentence is calculated using the career offender provision, even if a variance or departure were granted, and the ultimate sentence was based explicitly on the drug guideline. Ware and Stratton argued that the commentary improperly redefined eligibility and the meaning of “based on” in § 3582, in conflict with the Supreme Court’s interpretation in Freeman.

The Court disagreed, finding that the plain language of § 3582(c)(2) authorizing the court to reduce the sentence of a defendant who was sentenced “based on” a sentencing range that has been lowered, also requires any reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” Therefore, the plain language of the statute incorporated the Commission’s statements which, although narrowing eligibility, did not run contrary to § 3582(c)(2). The Court further found that the commentary did not present an interpretation of the statutory term “based on,” but instead an additional limit on eligibility, therefore the meaning of the term “based on”—and the holding of Freeman—were not relevant.

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