By Rebecca Blake
The Tenth Circuit created a circuit split by its holding in United States v. Rhodes that, despite the Supreme Court’s holding in United States v. Booker, the United States Sentencing Guidelines are still mandatory in §3582(c)(2) resentencing hearings. Defendant Rhodes was originally sentenced to prison in 1997 for his role in a conspiracy to possess with intent to distribute crack cocaine. After the Sentencing Commission amended the crack cocaine-related Sentencing Guidelines in 2007, Rhodes filed a motion pursuant to §3582(c)(2) requesting that the court reconsider his sentence. Not only did Rhodes ask the court to reduce his sentence to the lower limit of the new guideline range, he also argued that, in light of Booker, the guidelines were advisory, and the court had the ability to reduce his sentence further if it so desired. The District Court rejected this argument and reduced Rhodes’s sentence to the bottom of the amended guideline range.
The Tenth Circuit began its analysis by looking to the statutory language of §3582(c)(2), which provides that a court may not generally modify a prisoner’s sentence except when the Sentencing Commission has subsequently lowered the applicable sentencing range. In this situation, the court may then consider applicable factors of §3553(a), and reduce a prisoner’s sentence if the reduction is consistent with Commission policy statements. Rhodes certainly fell within this exception to receive a sentence reduction, but how far was the court authorized to reduce it?
To answer this question, the Court then looked to the commentary in §1B1.10 of the Sentencing Guidelines. Here, the Court found it pertinent that the commentary expressly forbade the courts from reducing a term of imprisonment to anything less than the minimum of the amended guideline range, unless the sentence originally fell below the prior guideline range. Rhodes argued that §1B1.10 was contrary to law, and that the Guidelines must be considered advisory, in light of Booker. The Court rejected the argument on the basis that original sentencing hearings and resentencing hearings are governed by different statutes, and as such the Supreme Court could not have been referring to both when only considering an issue concerning an original sentencing.
The Court concluded by noting its disagreement with United States v. Hicks, a Ninth Circuit case that came out the other way in holding that, in light of Booker the Guidelines could no longer be considered mandatory in any context. The Tenth Circuit criticized Hicks for failing to consider that sentence modification proceedings have a different statutory basis. Since Rhodes, seven other circuits have similarly held that where §3582(c)(2) resentencing hearings are at issue, the Guidelines are still mandatory.
The Supreme Court has declined to hear this case, and has denied certiorari for almost every other similar case. One case, United States v. Doe, is still pending certiorari, and the Supreme Court could still take the opportunity to correct this circuit split. For now however, the consensus appears to be that while effectively advisory at an original sentencing, the Guidelines are still mandatory when considered at a §3582(c)(2) resentencing hearing.