Yesterday the Second Circuit affirmed, in United States v. Ramirez (No.15-2570), the so-called “one-book rule”: if sentenced criminals want to seek a reduction in sentence based on changes in the Sentencing Guidelines, they have to accept the new Guidelines wholesale. They can’t pick and choose the most favorable provisions from the various iterations of the Guidelines that might potentially apply. Judge Droney wrote the opinion, with Judges Raggi and Chin also on the panel.
The defendant in this case, Ramirez, was sentenced on drug-conspiracy charges in the Southern District of New York in 2006. At that time, his Guidelines range was 360 months to life, but the district court, after considering the relevant discretionary factors, varied from the range and sentenced him to just 210 months.
The Guidelines in effect in 2006 had one other feature important to this appeal. They provided that, in a sentence-modification proceeding under 18 U.S.C. § 3582(c)—that is, a proceeding to reduce the defendant’s sentence in light of changes to the Guidelines—a district court had unfettered discretion to reduce the sentence. In other words, the sentence reduction did not have to bear any logical relationship to whatever amendments to the Guidelines had prompted the sentence-modification proceeding in the first place.
That changed in 2011, when the Sentencing Commission adopted Amendment 759. Under that Amendment, a court reducing a defendant’s sentence in response to Guidelines amendments is not permitted to reduce the sentence to one that is below the low end of the new Guidelines range.
Then, in 2014, the Commission adopted Amendment 782, which reduced the applicable offense levels for certain drug offenses— including Ramirez’s —by two levels. Under Amendment 782, which was retroactively applicable, Ramirez’s new Guidelines range was 324 to 405 months.
This put Ramirez in a bind. Because his initial sentence was 210 months, per Amendment 759, using Amendment 782 to prompt a sentence modification would be futile: the court wouldn’t be able to go below the new Guidelines low end of 324 months. The district court pointed that out, and denied his request for a sentence modification.
So Ramirez appealed to the Second Circuit and argued that he should be permitted to layer one version of the Guidelines on top of the other. He said that Amendment 782 entitled him to a sentence modification, but that for purposes of such a modification, the court should not apply Amendment 759, because the latter Amendment had not been in effect at the time of his offense, conviction, or sentencing. In other words, he said he should get the benefit of the 2014 amendment, but without the detriment of the 2011 amendment.
The panel was unconvinced. Judge Droney wrote that under the “one-book rule,” a defendant can rely on only one entire version of the Guidelines when seeking a sentence modification. The defendant cannot pick and choose the most favorable provisions from each Guidelines edition and create a new Guidelines edition that includes only those provisions, leaving out those that are detrimental to the defendant. The court rejected Ramirez’s argument that the application of Amendment 759 violated the ex post facto clause, reasoning that Amendment 759 did not retroactively increase the onerousness of Ramirez’s punishment. Its conclusion was not altered by the fact that Amendment 782 was retroactively applicable—just because the amendment applies retroactively, the court held, did not mean that it was actually part of the Guidelines that existed prior to the addition of Amendment 759 for purposes of the one-book rule.
The court’s analysis is consistent with the law regarding the ex post facto clause and consistent with the long-standing principle that defendants are to be sentenced using a single edition of the Sentencing Guidelines. However, lurking behind this well-supported legal analysis is a policy question: should the Sentencing Commission have retained Amendment 759 when it enacted Amendment 782 (and Amendment 788, which made Amendment 782 retroactive to already-sentenced defendants)? The thinking behind Amendment 759 seems to be that without such a provision, there would be a “Guidelines free-fall” and that defendants who already benefited from a downward departure or variance should not be able to benefit further from the retroactive relaxation of the controlled substance Guidelines.
However, this rule arguably works an unfairness to those defendants who were sentenced below the newly-determined Guidelines range but who might have received an even shorter sentence if the district judge had imposed sentence against the backdrop of this lower Guidelines range. Booker and its progeny direct district judges to consider the Sentencing Guidelines as part of the sentencing procedure, and it stands to reason that many district judges will calibrate the extent of a downward variance based on that underlying range. Depriving some defendants of an opportunity to be resentenced based on the lower range determined by Amendment 782 seems unfair to those defendants who were already deemed to be worthy of a reduced sentence in their original sentencing.