United States v. Lorenzo N. Green

Citations: 952 F.2d 414; 293 U.S. App. D.C. 58; 1991 U.S. App. LEXIS 28951Docket: 06-3108

Court: Court of Appeals for the D.C. Circuit; December 13, 1991; Federal Appellate Court

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Lorenzo N. Green was convicted by a jury for possession of 8.62 grams of crack cocaine, violating 21 U.S.C. § 844(a). Initially, the Sentencing Guidelines in effect during his offense (October 1989) suggested a maximum sentence of 6 months for such possession. However, the trial court sentenced him to 63 months based on an amended version of the Guidelines effective at his sentencing date, which specifically addressed possession of more than five grams of cocaine base. Green appealed, arguing that applying the newer Guidelines constituted an unconstitutional ex post facto application of law. While the court disagreed with this argument, it determined that the 63-month sentence was erroneous. The appellate court vacated the sentence and remanded the case for resentencing, noting that the trial court had considered multiple legal sources during sentencing, including the amended Guidelines and statutory minimums. The trial court's reliance on the Guidelines in effect at sentencing, despite acknowledging potential ex post facto issues, played a crucial role in the appeal outcome.

A court is required to use the Sentencing Guidelines when determining a sentence, as mandated by 18 U.S.C. § 3553(b) and U.S.S.G. § 5G1.1. The Guidelines provide a sentencing range, within which the court has discretion, but cannot exceed unless there are aggravating or mitigating circumstances not considered by the Sentencing Commission. Furthermore, the court must apply the Guidelines in effect at the time of sentencing, and recent rulings have established that substantive changes to the Guidelines cannot be applied retroactively if they adversely impact the defendant's sentence, in accordance with the ex post facto clause.

In the case discussed, the amended Guideline 2D1.1's application is scrutinized to determine if it constituted a substantive change that negatively affected the defendant's sentencing. The 1989 amendment to Guideline 2D1.1 responded to a 1988 law change that established mandatory minimum sentences for cocaine base possession, specifically calling for a minimum of 5 years to a maximum of 20 years. This law aimed to impose harsher penalties for crack cocaine due to its perceived danger.

At the time of Green's sentencing, the amended Guideline indicated a base range of 63-78 months, but it did not apply retroactively to his offense. According to the Guidelines, if a statutory minimum sentence exceeds the maximum guideline range, the statutory minimum becomes the guideline sentence. Therefore, since the statutory minimum of 5 years is greater than the applicable guideline range, it should be the sentence imposed, barring any valid reasons for departure.

The trial court sentenced Green to 63 months, exceeding the five-year (60 month) term established by Guideline 5G1.1(b). For such an increase, the court would need to either upwardly depart from the sentence under 18 U.S.C. 3553(b) or apply an amended version of Guideline 2D2.1. However, the application of the amended guideline would violate the principle established in Lam Kwong-Wah, as it constitutes a substantive change adverse to Green, amounting to an ex post facto application. The upward departure option was not pursued by the trial judge, who did not find it warranted.

Green contends that sentencing under the amended 2D2.1 is unconstitutional and that his sentence should adhere to the original version of 2D2.1, under which he has served more than the six-month maximum and thus should be released. The Government counters that no ex post facto issue arises since there was no applicable guideline at the time of Green's offense, arguing that the original 2D2.1 was obsolete due to inconsistencies with statutory mandatory minimums. The Government asserts that the judge had discretion to impose an appropriate sentence or apply the most analogous guideline under U.S.S.G. 2X5.1.

The argument that applying the post-offense version of Guideline 2D2.1 violates the Constitution does not imply that the pre-offense version should be applied, as 5G1.1(b) was in effect and applicable, establishing a mandatory minimum. The Government acknowledges that 5G1.1(b) applies but fails to argue that the trial judge attempted an upward departure.

Additionally, the sentencing judge imposed only imprisonment, neglecting the option to impose a fine available under the 1988 version of 18 U.S.C. 844(a). Since 1990, a violation of 844(a) requires both a minimum five-year prison sentence and a $1,000 fine. There is an interpretation of Guideline 5G1.1(b) that could view "statutorily required minimum sentence" as a minimum fine rather than imprisonment, suggesting that a fine, not imprisonment, might be the mandated minimum under the statute applicable at the time of the offense.

The interpretation of Sentencing Guideline 5G1.1 is deemed overly restrictive, emphasizing that it pertains to imprisonment terms, not fines. The guideline's relevance arises when the sole sentence under consideration is imprisonment, and the appeal focuses on determining the correct term under applicable law. Specifically, 5G1.1(b) asserts that statutory mandates take precedence over any conflicting guidelines. Consequently, if a sentencing judge imposes a prison term, they must adhere to any statutory minimums. As such, resentencing is mandated, with 5G1.1(b) stipulating a five-year (60-month) minimum term. The court refrains from addressing whether an upward departure from this sentence is warranted under 18 U.S.C. 3553(b). The trial court's sentence is vacated, and the case is remanded for resentencing in accordance with the relevant Sentencing Guidelines at the time of the offense. Further, it notes that defendants convicted of certain drug offenses are sentenced under specific guidelines that dictate offense levels and corresponding sentence ranges. The document also references relevant case law regarding the application of sentencing guidelines and statutory mandates, asserting that statutes prevail when discrepancies arise.