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No Shortcuts: District Court Must Calculate Guidelines Range Before Ruling on Sentencing Reduction Motion

In United States v. Brooks, the Court (Leval, Pooler, Hall) reiterated that district courts are required to calculate the applicable Sentencing Guidelines range when faced with a § 3582(c)(2) motion for a sentence reduction, and suggested that the failure to do so will rarely be harmless.

Daren Brooks pled guilty in 2011 to one count of possession of crack cocaine with intent to distribute.  Because the 2008 Guidelines in effect at the time of the offense were more favorable than the 2011 Guidelines in effect at the time of sentencing, the district court used the former, resulting in a range of 262-327 months, and imposed a sentence of 300 months.[1]  In 2014, the Sentencing Commission adopted Amendment 782, retroactively reducing the offense levels for drug offenses.  In his opening papers seeking a reduction, Brooks correctly identified the revised range as 168-210 months, reflecting the 2008 Guidelines as the baseline.  However, the Probation Department, the Government, and (oddly) even Brooks in his reply papers all then represented that the revised range was 210-262 months, reflecting the 2011 Guidelines as the baseline.  The district court denied Brooks’ motion as an “exercise of its discretion” because of his lengthy criminal history, pattern of recidivism, and past conduct demonstrating a failure to be rehabilitated.  The court did not state whether it had calculated the applicable range or whether Brooks was eligible for a reduction in the first place.

The Second Circuit reversed.  At the outset, it observed that the Guidelines provide that the district court “shall determine the amended guideline range” prior to deciding the motion, U.S.S.G. § 1B1.10, and the Supreme Court and Second Circuit have spoken in obligatory terms as well.  Here, however, the district court “did not say” whether it had calculated the revised range.  The most likely scenario was that it had used the wrong range in reliance on the parties’ submissions.  It was also possible that the court had declined to calculate the range because it intended “to deny reduction in either case for discretionary reasons.”  By contrast, it was “unlikely” that the court had accurately determined the revised range without saying anything to correct the parties’ and the Probation Department’s mistake.  In other words, the only plausible scenarios were that the court had wrongly calculated or refused to calculate the revised range, either of which constituted procedural error.  While the Government argued the district court would have imposed the same sentence in either case, rendering any error harmless, the panel “ha[d] no confidence” that the district court would have imposed a sentence 90 months (or 7.5 years) above the top of the revised range had it been aware of that fact.  The panel remanded for a determination of Brooks’ eligibility, the revised range, and the revised sentence (if any), and retained jurisdiction in the event that the district court adhered to its prior 300 month sentence even with the revised 168-210 month range.

The outcome in Brooks is not particularly surprising.  The Supreme Court has made clear that a sentencing reduction motion calls for a two-step analysis—is the defendant eligible in light of the revised range, and if so will the court grant the reduction as a matter of discretion, Dillon v. United States, 560 U.S. 817 (2010)—and Brooks adheres to that framework.  While the decision suggests that the failure to expressly engage in step one is not necessarily fatal, the record here “strongly suggest[ed]” procedural error.  The safest course is for the district court to expressly calculate the revised range. 

The panel’s prejudice analysis is somewhat more provocative.  As the Government pointed out in its brief, there was evidence that the district court would not have reduced Brooks’ sentence even if it had correctly calculated the revised range.  During the original sentencing, Brooks had advocated for a 210-262 month range, and the district court said it would not apply that range because “you don’t deserve that.  I’m telling you to your face, you don’t deserve that.”  (Gov’t Br. at 10-11).  The panel disregarded this statement because it had “no confidence” that the district court would have denied the motion had it known the correct range and there was a “reasonable likelihood” to the contrary.  (Op. at 10).  At the same time, the panel retained jurisdiction and provided guidance signaling that it would closely scrutinize a refusal to grant any reduction.  Brooks thus suggests that the Court will presume prejudice based on the failure to correctly calculate the revised range in all but the rarest circumstances.  This presumption is consistent with the Supreme Court’s recent determination in Rosales-Mireles v. United States (June 18, 2018) that the failure to correctly calculate the Guidelines range “seriously affects the fairness, integrity, or public reputation of judicial proceedings” for purposes of plain-error review in sentencing determinations.  In both contexts, the appellate courts have given a strong incentive to district courts to correctly calculate the applicable Guidelines range.  In short, while the Guidelines are only advisory, district court judges remain obliged to “consider” the Guidelines range at sentencing, 18 U.S.C. § 3553(a)(4), and are “required” to “determin[e]” the amended range when considering whether to resentence under 18 U.S.C. § 3582(c)(2).  Inherent within such “consider[ation]” and “determination” is an obligation to calculate the range correctly in nearly all cases.  See Gall v. United States, 552 U.S. 38, 51 (2007) (holding that a failure to calculate or a miscalculation of the guidelines range amounts to procedural error).

-By Brandon Trice and Harry Sandick

[1] The 2011 Guidelines actually provided for a lower base offense level due to the reduction in the crack cocaine guidelines, but other enhancements were created that left Brooks in a better position under the 2008 Guidelines.