Circuit Clarifies Guidelines Provision Allowing Post-Conviction Reduction Of Drug Sentences
In United States v. Carosella, 17-896-cr, the Second Circuit clarified an open issue relating to Amendment 782 to the Sentencing Guidelines. Amendment 782 is sometimes called the “drugs minus two” amendment because it reduced the base offense level for drug offenses by two levels. Amendment 782 was made retroactive through Amendment 788, and allows for an offender to be resentenced when its application leads to a reduced Guidelines range. Amendment 782 has led to the reduction of more than 31,000 sentences—but more than 48,000 defendants have sought such relief, meaning that more than one-third of those defendants were turned away empty-handed. One defendant who did not receive such relief in the district court was Anthony Carosella, and in a per curiam opinion (Walker, Lynch, Chin), the Second Circuit affirmed this decision.
Carosella was sentenced in 2011 to concurrent terms of 120 months’ imprisonment. There were three counts of conviction which, for sentencing purposes, were divided into five groups: a drug group, a robbery group, and three burglary groups. The grouping rules led to a total offense level of 30, reduced to 27 after credit for acceptance of responsibility (Carosella pleaded guilty). With a Criminal History Category of IV, his Guidelines range was 100 to 125 months’ imprisonment, and he was sentenced within this range.
When Amendment 788 was promulgated, making Amendment 782 retroactive, Carosella received to a two-level reduction for his drug conviction group. However, when the district court revisited the grouping analysis in light of that change, the revised analysis led to an offsetting two-level increase in Carosella’s offense level, leaving Carosella’s Guidelines range unchanged.
On appeal, Carosella argued that Guidelines Section 1B1.10(b)(1) prevented the district court from revising its grouping analysis. This provision states that when a defendant is to be resentenced, the district court must “determine the amended guideline range that would have been applicable to the defendant” if Amendment 782 had been in effect at the time of the initial sentencing, but “shall leave all other guideline application decisions unaffected.”
The Circuit disagreed with Carosella. In order to determine the amended guidelines range that would have been applicable had Amendment 782 been in effect at the time of sentencing, the district court needed to re-do the grouping analysis. With a revised grouping analysis, there was no change in the resulting Guidelines range. Carosella was mistaken when he claimed that this interpretation did not “leave all other guideline application decisions unaffected” because the grouping analysis is not a “decision” but only a “mechanical application of the grouping rules.” Section 1B1.10(b)(1) “does not require courts to ignore the effect of a lowered base offense level on the other Guidelines provisions that, combined with the original base offense level, produced the defendant’s initial sentencing range.” According to the Court’s tally, this decision aligns the Second Circuit with the Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits. In addition, based on the unambiguous interpretation of the Guidelines, the rule of lenity does not apply to help Carosella’s cause.
One can see why Carosella hoped to benefit from Amendment 782, which was meant to lower the sentences of drug offenders. At the same time, the problem for Carosella is that he was also convicted of non-drug offenses—the burglaries and robbery—which the Commission did not target for more lenient treatment. It is because of those other non-drug offenses that the revised grouping analysis led his Guidelines range to remain the same, thereby dooming Carosella to be another of the 16,000 defendants who have been unsuccessful in their efforts to benefit from Amendment 782.
-By Jason Vitullo and Harry Sandick
 United States Sentencing Commission, 2014 Drug Guidelines Amendment Retroactivity Data Report, Table 1 (January 2018), found at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/drug-guidelines-amendment/20180201-Drug-Retro-Analysis.pdf (last visited Feb. 23, 2018).
 We will spare the reader the niceties of the underlying grouping analysis, but suffice it to say that the reduction of the drug conviction group led that group’s offense level to be “closer” to the offense levels of the three burglary groups. Pursuant to Guidelines Section 3D1.4, this “closeness” ultimately resulted in the addition of two more offense levels, offsetting the two-level reduction in the drug conviction group’s offense level.