17‐896‐cr U.S. v. Carosella

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2017

(Argued: February 7, 2018 Decided: February 22, 2018)

Docket No. 17‐896‐cr

UNITED STATES OF AMERICA,

Appellee,

v.

TODD JARVIS, AKA MIKE HUNT, WAKETA COLEMAN, AKA MA, ANDRE MALDONADO, AKA GONZO, KENNETH MITCHELL, AKA BEAVER, DANA BROWN, KEVIN LADD, SCOTT LADUKE, AKA SCOTT CLARK,

Defendants,

ANTHONY CAROSELLA,

Defendant‐Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

Before: WALKER, LYNCH, and CHIN, Circuit Judges. Appeal from a final order of the United States District Court for the

District of Vermont (Murtha, J.) denying defendant‐appellantʹs motion to reduce

his sentence pursuant to

(c) and Amendment 782 to the United

States Sentencing Guidelines. Defendant‐appellant contends that the district

court erred in concluding that his amended Guidelines range remained the same,

rendering him ineligible for a sentence reduction.

AFFIRMED.

PAUL J. VAN DE GRAAF, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Christina E. Nolan, United States Attorney for the District of Vermont, Burlington, Vermont, for Appellee.

BARCLAY T. JOHNSON, Assistant Federal Public Defender, for Michael L. Desautels, Federal Public Defender for the District of Vermont, Burlington, Vermont, for Defendant‐Appellant.

PER CURIAM:

In this case, defendant‐appellant Anthony Carosella pleaded guilty

to conspiracy to distribute cocaine base and heroin, conspiracy to commit armed

robbery, and conspiracy to burglarize pharmacies and was sentenced in 2011 to

concurrent 120‐month terms of imprisonment. In 2016, Carosella moved to

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reduce his sentence pursuant to

(c)(2) and Amendment 782 to the

Guidelines (ʺU.S.S.G.ʺ), which lowered the base offense level for his drug

conviction by two levels. The district court determined that Carosella was

ineligible for a sentence reduction because, even with the two‐level decrease in

the offense level for the drug conviction, his amended Guidelines range

remained the same as it was when he was initially sentenced. Carosella now

appeals, arguing that the district court erred in recalculating his Guidelines

range. For the reasons set forth below, we disagree and affirm the district courtʹs

ruling.

BACKGROUND

On May 5, 2011, pursuant to his guilty pleas to three counts of a

superseding information, the district court sentenced Carosella to concurrent

120‐month terms of imprisonment for: conspiracy to distribute cocaine base and

heroin in violation of

(a)(1), 841(b)(1)(B) and 846; conspiracy to

commit armed robbery in violation of

(a); and conspiracy to

burglarize pharmacies in violation of

(b) and (d), which

encompassed three separate pharmacy burglaries. At sentencing, the court

divided Carosellaʹs offenses into five groups: Group 1 (drugs); Group 2 (armed

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robbery); Group 3 (the first pharmacy burglary); Group 4 (the second pharmacy

burglary); and Group 5 (the third pharmacy burglary). The court applied the

grouping rules under U.S.S.G. § 3D1.4, calculated a total offense level of 30, and

then granted credit for acceptance of responsibility, resulting in an adjusted total

offense level of 27. Based on Carosellaʹs Category IV criminal history, the court

determined that the Guidelines range was 100 to 125 months. The court denied

Carosellaʹs request for a non‐Guidelines sentence.

In 2014, Amendment 782 to the Guidelines, made retroactively

applicable by Amendment 788, lowered the base offense level for Carosellaʹs

drug conviction by two levels. On December 2, 2016, Carosella filed a motion to

reduce his sentence pursuant to

(c)(2).

On March 16, 2017, the district court issued an order denying

Carosellaʹs motion. United States v. Carosella, No. 1:10‐CR‐110 (JGM),

, at *1 (D. Vt. Mar. 16, 2017). After lowering the offense level for

Carosellaʹs drug conviction (Group 1) from 28 to 26, the court determined the

amended Guidelines range by following the same grouping analysis it used in

2011. As it had done before, the district court applied the grouping rules under

U.S.S.G. § 3D1.4, and the resulting calculation was again a total offense level of

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30. The court again granted credit for acceptance of responsibility, resulting once

more in an adjusted total offense level of 27.

Because of the operation of the grouping rules, Carosellaʹs total

offense level did not change. Pursuant to U.S.S.G. § 3D1.4, the district court

added two levels ‐‐ which it had not added in 2011 ‐‐ because the lowered base

offense level also lowered the differential between the highest offense level

(Group 1) and the offense level for the three pharmacy burglaries (Groups 3, 4

and 5).1 That two‐level increase offset the two‐level decrease from Amendment

1 In 2011, the offense level for the drug conviction (Group 1) was 28 and the offense level for each of pharmacy burglaries (Groups 3, 4, and 5) was 19. Because the difference between the offense level for Group 1 and each of Groups 3, 4, and 5 was nine levels, no additional units were assigned to the pharmacy burglaries. See U.S.S.G. § 3D1.4(c) (In determining the combined offense level, ʺ[d]isregard any Group that is 9 or more levels less serious than the Group with the highest offense level.ʺ). Applying U.S.S.G. § 3D1.4, the court assigned one unit to Group 1, one unit to Group 2, and zero units to Groups 3, 4, and 5. The total of two units corresponded to a two‐level increase to the group with the highest offense level, 28, resulting in a total offense level of 30. In 2016, the offense level for Group 1 was reduced from 28 to 26, pursuant to Amendment 782, and the offense levels for all other groups were unchanged. Because the difference between the offense level for Group 1 and each of Groups 3, 4, and 5 was now seven levels rather than nine levels, the district court assigned one‐half unit to each of the pharmacy burglaries. See U.S.S.G. § 3D1.4(b) (In determining the combined offense level, ʺ[c]ount as one‐half Unit any Group that is 5 to 8 levels less serious than the Group with the highest offense level.ʺ). Applying U.S.S.G. § 3D1.4, the court again assigned one unit to Group 1 and one unit to Group 2, and this time it assigned one‐half unit to each of Groups 3, 4, and 5. The total of three‐and‐one‐half units corresponded to a four‐level increase to the group with the highest offense level, 26, resulting in a total offense level of 30 ‐‐ the same level calculated at Carosellaʹs initial sentencing in 2011. ‐ 5 ‐

782. Accordingly, the district court concluded that Carosellaʹs amended

Guidelines range remained the same and he was therefore ineligible for a

sentence reduction.

On appeal, Carosella argues that the district court erred by adding

the two levels after lowering the base offense level for his drug conviction,

because U.S.S.G. § 1B1.10(b)(1) mandates that a district court ʺshall leave all other

guideline application decisions unaffectedʺ when applying a retroactive

amendment. Instead, Carosella argues that the only change the district court

should have made was to apply the two‐level decrease from Amendment 782,

which would have yielded a total offense level of 28, an adjusted total offense

level of 25, and an amended Guidelines range of 84 to 105 monthsʹ

imprisonment. Carosella also contends that, to the extent the language in

U.S.S.G. § 1B1.10(b)(1) is ambiguous, the rule of lenity applies.

DISCUSSION

We review de novo the statutory question of whether a defendant is

eligible for a sentence reduction pursuant to

(c)(2) because his

sentence was ʺbased on a sentencing range that was subsequently lowered by the

Sentencing Commission.ʺ United States v. Christie,

(2d Cir. 2013).

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A. Applicable Law

A defendant is eligible for a sentence reduction if he was ʺsentenced

to a term of imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commissionʺ and ʺsuch a reduction is consistent

with applicable policy statements issued by the Sentencing Commission.ʺ

(c)(2); see Dillon v. United States,

(2010).

The scope of resentencing authorized under

(c)(2) is

ʺnarrow.ʺ Dillon,

. Under U.S.S.G. § 1B1.10, a district court must

ʺʹdetermin[e] the amended guideline range that would have been applicable to

the defendantʹ had the relevant amendment been in effect at the time of the

initial sentencing,ʺ and ʺʹshall leave all other guideline application decisions

unaffected.ʹʺ Id. at 827 (quoting U.S.S.G. § 1B1.10(b)(1)). We are ʺbound byʺ

language in the Sentencing Commissionʹs policy statement providing that a

sentence reduction is not authorized if ʺʹan amendment [to the Guidelines range]

. . . is applicable to the defendant but the amendment does not have the effect of

lowering the defendantʹs applicable guideline range because of the operation of

another guideline or statutory provision.ʹʺ United States v. Williams,

(2d Cir. 2009) (alteration in original) (quoting U.S.S.G. § 1B1.10 cmt. 1(A)).

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Moreover, ʺ[t]he ʹsentencing rangeʹ that must have been changed to permit relief

under § 3582(c)(2) is not the base offense level or any other intermediate step in

the guideline calculation, but the bottom‐line, final range that was the basis for

the sentence.ʺ United States v. Taylor,

(7th Cir. 2015).

B. Application

We conclude that the district court correctly determined that

Carosella was ineligible for a sentence reduction pursuant to

(c).

Under U.S.S.G. § 1B1.10(b)(1), the district court had to calculate the amended

Guidelines range that ʺʹwould have been applicable to [Carosella]ʹʺ had

Amendment 782 ʺbeen in effect at the time of the initial sentencingʺ in 2011.

Dillon,

(quoting U.S.S.G. § 1B1.10(b)(1)). That calculation required

the district court to lower the base offense level of Carosellaʹs drug conviction

and follow the process it would have used in 2011 to determine Carosellaʹs

sentencing range. In doing so, the district court correctly concluded that there

was no change to the ʺbottom‐line, final range that was the basis for [Carosellaʹs]

sentence,ʺ Taylor,

, ʺbecause of the operation of another guideline,ʺ

Williams,

(quoting U.S.S.G. § 1B1.10 cmt. 1(A)) ‐‐ the grouping

rules provided in U.S.S.G. § 3D1.4.

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Carosella argues that this interpretation is inconsistent with

language in U.S.S.G. § 1B1.10(b)(1) mandating that district courts ʺshall leave all

other guideline application decisions unaffected.ʺ U.S.S.G. § 1B1.10(b)(1). But

the courtʹs 2011 grouping calculation was not a ʺguideline application decision[]ʺ

that we must leave ʺunaffected,ʺ id. (emphasis added) ‐‐ rather, it was a

mechanical application of the grouping rules provided in U.S.S.G. § 3D1.4. See

United States v. Waters,

, 1117–18 (9th Cir. 2011) (rejecting a similar

challenge to the courtʹs reliance on the offense level specified by the career

offender guideline to recalculate an amended Guidelines range, because at the

initial sentencing, ʺ[t]he district courtʹs decision to apply the offense level from

§§ 2D1.1 and 3B1.4 rather than § 4B1.1(b) [the career offender guideline] was not

an ʹapplication decisionʹ within the meaning of § 1B1.10(b). It was

an application of § 4B1.1(b).ʺ (emphasis in original)).

The language Carosella relies on does not require courts to ignore

the effect of a lowered base offense level on the other Guidelines provisions that,

combined with original base offense level, produced the defendantʹs initial

sentencing range. See United States v. Ford, 699 F. Appʹx 812, 817–18 (10th Cir.

2017) (unpublished) (applying career offender guideline under U.S.S.G.

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§ 4B1.1(b), after lowering base offense level pursuant to Amendment 782); United

States v. Koglin,

(7th Cir. 2016) (denying defendant eligibility for

two‐level reduction under U.S.S.G. § 2D1.1(a)(5), after lowering base offense

level pursuant to Amendment 782); United States v. Tolliver, 659 F. Appʹx 560,

563–64 (11th Cir. 2016) (denying defendant eligibility for one‐point reduction

under U.S.S.G. § 3E1.1(b), after lowering base offense level pursuant to

Amendment 782); United States v. Quinn,

, 295–96 (6th Cir. 2009)

(approving district courtʹs application of grouping rules under U.S.S.G. § 3D1.4,

after lowering base offense level pursuant to Amendment 706, to calculate

amended Guidelines range).

Because we now join our sister Circuits in concluding that U.S.S.G. §

1B1.10(b)(1) unambiguously does not support Carosellaʹs interpretation, the rule

of lenity does not apply. See United States v. Simpson,

(2d Cir.

2002) (in order for the rule of lenity to apply to a Guideline, the Guideline ʺmust

be ambiguousʺ).

CONCLUSION

The judgment of the district court is AFFIRMED.

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