Appeal from a judgment of the District Court for the Northern District of New York (Thomas J. McAvoy, Judge) challenging a sentence on the ground that an incorrect sentencing guideline was applied to the defendant.
Jon O. Newman and Pratt, Circuit Judges, and Telesca, District Judge.*fn*
JON O. NEWMAN, Circuit Judge.
This appeal presents an important issue in the administration of the new sentencing guidelines, an issue that will have major significance for all federal trial and appellate courts if the sentencing guidelines ultimately withstand constitutional challenge. See United States v. Johnson, 682 F. Supp. 1033 (W.D. Mo. 1988), cert. granted sub nom. United States v. Mistretta, 486 U.S. 1054, 108 S. Ct. 2818, 100 L. Ed. 2d 920, 108 S. Ct. 2894 (1988). The issue is whether, and under what circumstances, a dispute as to which of two guideline ranges should apply to a defendant may be left unresolved where the sentence imposed falls within both the guideline range deemed applicable by the Government and a lower guideline range deemed applicable by the defendant. The issue arises on an appeal by Gerald Bermingham from a judgment of the District Court for the Northern District of New York (Thomas J. McAvoy, Judge). We conclude that the overlapping of the guideline ranges was designed to minimize the need to resolve disputes like the one presented on this appeal and that such disputes need not be resolved where the same sentence would have been imposed under either of the guideline ranges urged by the parties. However, such disputes must be resolved where the sentence was selected because it is at or near the low end of the guideline range urged by the Government and deemed applicable by the sentencing judge. Since we cannot be certain whether that occurred in this case, we remand for clarification.
The Sentencing Guidelines
In 1984, Congress initiated a fundamental change in the system for sentencing federal offenders. The Sentencing Reform Act of 1984, Pub.L. No. 98-473, Ch. II, 98 Stat. 1987, created the United States Sentencing Commission and gave it the responsibility to develop a set of sentencing guidelines to be used by district judges in sentencing federal offenders. See 28 U.S.C. §§ 991-998 (West Supp. 1988). In place of the prior system under which district judges had virtually unfettered discretion to select any sentence from probation to the statutory maximum for the particular offense, except for those few offenses carrying mandatory minimum sentences, the guidelines establish a structure in which judges' sentencing discretion is substantially curtailed, though not eliminated. See United States Sentencing Commission, Sentencing Guidelines and Policy Statements (1987) (hereafter "Sentencing Guidelines"). The guidelines, as originally promulgated on April 13, 1987, apply to offenses committed after November 1, 1987. See Sentencing Reform Act of 1984, supra, § 235(a)(1), 98 Stat. 2031, amended by Sentencing Reform Amendments Act of 1985, Pub.L. No. 99-217, § 4, 99 Stat. 1728, and Sentencing Act of 1987, Pub.L. No. 100-182, § 2(a), 101 Stat. 1266.
The guidelines establish a sentencing table of forty-three rows and six columns. Sentencing Guidelines at p. 5.2. The table is set out in figure 1. Each row corresponds to an "Offense Level," and each column to a "Criminal History Category." The offense level is determined by selecting a "Base Offense Level" specified for the type of conduct committed by the defendant and then adjusting this level, upwards and downwards, to reflect aggravating and mitigating circumstances, present in a defendant's case, for which precise offense level adjustments have been prescribed. The appropriate criminal history category is selected by assigning prescribed numbers of points to the defendant's prior convictions and selecting the criminal history category appropriate for the defendant's point total.
At the intersection of each of the forty-three offense levels and each of the six criminal history categories, the sentencing table prescribes a range of months. The sentencing judge is required to select a sentence within the applicable range, unless satisfied that the statutory grounds for making a "departure"-selecting a sentence above or below the guideline range-are met. See 18 U.S.C.A. § 3553(b) (West Supp. 1988) (as amended by Sentencing Act of 1987, Pub.L. No. 100-182, § 3, 101 Stat. 1266). At the lower end of the sentencing table, the guideline ranges are six months. The ranges increase as the offense levels increase. At the higher end of the sentencing table, the guideline ranges are as much as eighty-one months. The top of any guideline range must not exceed the bottom by more than the greater of 25 percent or six months, unless the bottom is thirty years or more, in which event the top may be life imprisonment. 28 U.S.C.A. § 994(b)(2) (West Supp. 1988).
A distinctive feature of the sentencing table, of special significance to the pending appeal, is that the guideline ranges overlap, both vertically as the offense levels become greater and horizontally as the criminal history categories become greater. To illustrate, in the column for criminal history category I, the range for offense level 16 is 21 to 27 months, the range for offense level 17 is 24 to 3O months, and the range for offense level 18 is 27 to 33 months. Thus, for a defendant in criminal history category I, a twenty-seven-month sentence could be imposed without a departure no matter which of these three offense levels was applicable. Similarly, in the row for offense level 16, the range for criminal history category I is 21 to 27 months, the range for criminal history category II is 24 to 3O months, and the range for criminal history category III is 27 to 33 months. Thus, for a defendant with an offense level of 16, a twenty-seven-month sentence could be imposed without a departure no matter which of these three criminal history categories was applicable.
The extent of overlap is not uniform, though certain patterns are discernible. At offense levels from 13 to 37 in criminal history category I, the top of each range is the same as the bottom of the range for an offense level two levels higher.*fn1 That pattern of overlapping ranges for adjacent offense levels occurs in all criminal history categories, though the pattern begins and ends at offense levels slightly lower than those in criminal history category I as the criminal history category becomes greater. Thus, where this pattern exists, a sentence can fall within as many as three adjacent offense levels, though many sentences fall within only two adjacent offense levels. To illustrate with the example from the preceding paragraph, a twenty-seven-month sentence could be imposed for a defendant in criminal history category I whether offense level 16, 17, or 18 was applicable, but a twenty-eight-month sentence and a twenty-nine-month sentence could be imposed only if offense level 17 or 18 was applicable. At lower offense levels, a sentence may fall within as many as seven adjacent offense levels. For example, a two-month sentence could be imposed on a defendant in criminal history category I whether offense level 2, 3, 4, 5, 6, 7, or 8 was applicable.
Throughout the sentencing table, the ranges for every pair of adjacent offense levels (in each criminal history category) overlap, with the result that every sentence (other than a life sentence) falls within the ranges for at least two adjacent offense levels.
The pattern of overlapping ranges among adjacent criminal history categories is similar though not identical to the pattern for adjacent offense levels. The top of the range for criminal history category I is the same as, or in a few instances higher than, the bottom of the range for criminal history category III at all levels. Thus, some sentences could be given no matter which of the first three criminal history categories applied, though most sentences would fall within only two of these categories. For criminal history categories II through VI, the top of a range at a particular offense level in one category is the same as or higher than the bottom of the range for a category two categories higher only at offense levels above twenty-eight.*fn2 Below this offense level, sentences fall within only two adjacent categories, except below offense level 9, where the extent of overlapping among criminal history categories increases.
Throughout the sentencing table, the ranges for every pair of adjacent criminal history categories (in each offense level) overlap with the result that almost every sentence falls within the ranges for ...