UNITED STATES of America, Plaintiff-Appellee, v. Paul SANDERS, Defendant-Appellant

Citations: 67 F.3d 855; 95 Daily Journal DAR 13443; 95 Cal. Daily Op. Serv. 7820; 1995 U.S. App. LEXIS 27852; 1995 WL 582199Docket: 94-50265

Court: Court of Appeals for the Ninth Circuit; October 5, 1995; Federal Appellate Court

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Paul Sanders pled guilty to bank robbery and using a firearm during a crime of violence, leading to a sentence of 50 months for the robbery and 60 months for the firearm charge, with both terms of supervised release set to run consecutively. While acknowledging that the district court's decision was proper under prior Ninth Circuit law, Sanders argued for retroactive application of a 1994 amendment to the Sentencing Guidelines that prohibits consecutive terms of supervised release. The Ninth Circuit, referencing its decision in United States v. Shorthouse, confirmed that the imposition of consecutive supervised release terms was consistent with the law at the time of sentencing. The amendment clarified that supervised release terms should not run consecutively, even when underlying offenses require consecutive prison sentences. The court ultimately reversed the district court's decision, aligning with the new guidelines.

The 1994 amendment clarifies that any terms of supervised release imposed under consecutive sentences must run concurrently with other supervised release terms, contradicting previous interpretations exemplified in Shorthouse. This amendment is relevant to defendants, such as Sanders, who are being sentenced for similar crimes. The Ninth Circuit has established that clarifying amendments should be applied retroactively, as seen in cases like United States v. Quinn and United States v. Carrillo. The Sentencing Guidelines mandate that while the most current guidelines apply, clarifying amendments must also be considered. The 1994 amendment is deemed clarifying, resolving a circuit split regarding the interplay between U.S.S.G. Sec. 5G1.2 and 18 U.S.C. Sec. 3624(e). While it aims to clarify existing provisions, it also alters the substantive law established in Shorthouse, raising concerns about retroactive application and potential violations of the ex post facto clause, as discussed in United States v. Smallwood and other related cases.

The ex post facto clause is not relevant in this case as the amendment is classified as a clarifying amendment by the Sentencing Commission, which intends to reduce Sanders' sentence. Consequently, the court decides to apply the amendment retroactively and reverses the consecutive terms of supervised release, remanding the case for resentencing in accordance with this opinion. 

In dissent, Circuit Judge Fernandez argues against the retroactive application of the amendment, asserting that substantive changes to the Guidelines should not be applied retroactively unless specified in U.S.S.G. Sec. 1B1.10. Although clarifying changes can be applied retroactively, Fernandez believes that the amendment in question constitutes a substantive change that alters existing circuit law. He points out that the Commission's designation of the amendment as clarifying does not inherently validate its classification, especially when it contradicts established legal precedent. 

Fernandez emphasizes that applying this amendment retroactively could lead to an influx of appeals based on future changes from the Commission, which may disrupt the judicial process. He concludes that the appropriate approach is to first categorize the nature of the change, determining it to be substantive, and therefore, non-retroactive, advocating for the affirmation of Sanders' original sentence. He also notes the differing interpretations of consecutive supervised release terms between circuits, referencing the Eighth Circuit's stance.