                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-2-1998

United States v. Marmolejos
Precedential or Non-Precedential:

Docket 96-1735




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Recommended Citation
"United States v. Marmolejos" (1998). 1998 Decisions. Paper 67.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/67


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Filed April 2, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1735

UNITED STATES OF AMERICA

v.

FREDDIE MARMOLEJOS,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 90-442-2)

Argued: January 30, 1998

Before: SCIRICA, ROTH, AND RENDELL, Circuit Judges

(Opinion Filed: April 2, 1998)

       Stephen Robert LaCheen
       Anne M. Dixon (ARGUED)
       Lewis Tower Building, 31st Floor
       225 South 15th Street
       Philadelphia, PA 19102
        Attorneys for Appellant

       Walter S. Batty, Jr.
       Amy L. Kurland (ARGUED)
       Office of the United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106
        Attorneys for Appellee
OPINION OF THE COURT

RENDELL, Circuit Judge:

This appeal raises the issue of whether the defendant,
Freddie Marmolejos, is entitled to relief under 28 U.S.C.
S 2255 and resentencing by the district court, in light of a
post-sentencing amendment to the application notes to
S 2D1.1 of the United States Sentencing Guidelines.
Because we hold that the amendment clarified the existing
application note, rather than effecting a substantive change
in the law, Marmolejos is entitled to relief and resentencing.
Accordingly, we will reverse the district court and remand
for resentencing with consideration given to the amendment
to the application note.

I.

In June 1991 Marmolejos was convicted of conspiracy to
distribute cocaine in violation of 21 U.S.C. S 846. The jury
found him not guilty of possession with intent to distribute
cocaine under 21 U.S.C. S 841. The evidence showed that
he had negotiated a purchase of 5.00 kg of cocaine but had
delivered only 4.96 kg at the time of the sale. Using this
5.00 kg figure, the district court sentenced Marmolejos in
October 1991 to 126 months in prison, based upon the
version of Application Note 12 to U.S.S.G. S 2D1.1 that was
in effect at that time. After we affirmed the conviction in
August 1992, Marmolejos challenged his sentence by filing
a petition in March 1995 for habeas relief under 28 U.S.C.
S 2255. However, the district court denied the motion and
we affirmed.

In April 1996 Marmolejos then filed a second S 2255
habeas motion for relief from the district court's judgment.1
He contended that his sentencing offense level should have
_________________________________________________________________

1. Marmolejos was not subject to the new restrictions on successive
habeas petitions contained in the Antiterrorism and Effective Death
Penalty Act of 1996, because his second habeas petition was filed five
days prior to the April 24, 1996, date on which the Act took effect.

                               2
been based solely on the 4.96 kg of cocaine he actually
distributed, rather than on the 5.00 kg of cocaine he
intended to distribute as a member of the conspiracy. The
difference was weighty, for Marmolejos's sentence could
have been reduced by five to twenty-nine months if he was
correct.2 In support of his claim, Marmolejos argued that
Amendment 518 to the Guidelines, which changed
Application Note 12 effective November 1, 1995, should
apply to his offense, and that he should be resentenced so
that the amendment could be applied in sentencing him.
The district court, though, rejected Marmolejos's contention
and denied both his habeas motion and his motion for
reconsideration, holding that the amendment was not to be
given retroactive effect. Marmolejos then filed an appeal,
which we agreed to consider. We have jurisdiction over the
appeal pursuant to 28 U.S.C. S 2253(a), and we exercise
plenary review of the district court's ruling. See United
States v. Higgins, 128 F.3d 138, 139 (3d Cir. 1997); United
States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997), cert.
denied, 118 S. Ct. 722 (1998).

II.

A.

Section 2D1.1 of the Sentencing Guidelines establishes
the base offense level for defendants who act as parties to
an agreement or conspiracy to sell narcotics, based upon
the quantity of drugs involved. Application Note 12 to
S 2D1.1 addresses the method of determining the
appropriate quantity if the offense involves negotiation to
traffic in narcotics.3 Prior to November 1995, Application
Note 12 provided as follows:
_________________________________________________________________

2. The 4.96 kg figure which Marmolejos posited yields a base offense
level of thirty, whereas the 5.00 kg figure on which he was sentenced
yields a level of thirty-two. The guideline range for a base offense level
thirty with a criminal history category of one is 97-121 months. U.S.
Sentencing Guidelines Manual S 5A (1998). Thus, because Marmolejos
was sentenced to 126 months in prison, his sentence could have been
reduced by anywhere from five to twenty-nine months.

3. The parties have not challenged, nor do we address, the district
court's reliance on this application note in determining the appropriate

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       In an offense involving negotiation to traffic in a
       controlled substance, the weight under negotiation in
       an uncompleted distribution shall be used to calculate
       the applicable amount. However, where the courtfinds
       that the defendant did not intend to produce and was
       not reasonably capable of producing the negotiated
       amount, the court shall exclude from the guideline
       calculation the amount that it finds the defendant did
       not intend to produce and was not reasonably capable
       of producing.

U.S. Sentencing Guidelines Manual app. C at 858 (1998).

Attempting to follow this application note in sentencing
Marmolejos, the district court used "the weight under
negotiation" -- namely, 5.00 kg -- as the relevant quantity.
However, four years after Marmolejos was sentenced,
Amendment 518 to the Guidelines deleted the language of
Application Note 12 and inserted a new set of instructions
in its place. As amended, the application note now reads:

       In an offense involving an agreement to sell a
       controlled substance, the agreed-upon quantity of the
       controlled substance shall be used to determine the
       offense level unless the sale is completed and the
       amount delivered more accurately reflects the scale of
       the offense. For example, a defendant agrees to sell 500
       grams of cocaine, the transaction is completed by the
       delivery of the controlled substance - actually 480
       grams of cocaine, and no further delivery is scheduled.
       In this example, the amount delivered more accurately
       reflects the scale of the offense. In contrast, in a
       reverse sting, the agreed-upon quantity of the
       controlled substance would more accurately reflect the
       scale of the offense because the amount actually
       delivered is controlled by the government, not by the
       defendant. If, however, the defendant establishes that
       he or she did not intend to provide, or was not
_________________________________________________________________

sentence for Marmolejos. It appears that because of the unusual facts
here -- namely, that Marmolejos was convicted of conspiracy but
acquitted of the underlying offense -- negotiation to traffic is the most
apt description of Marmolejos's offense.

                               4
       reasonably capable of providing, the agreed-upon
       quantity of the controlled substance, the court shall
       exclude from the offense level determination the
       amount of controlled substance that the defendant
       establishes that he or she did not intend to provide or
       was not reasonably capable of providing.

Id. (emphasis added).

Marmolejos argues that this new language "clarifies" the
prior guideline in that it provides for the test in a completed
distribution, which his was, so as to clear up the ambiguity
that previously existed due to the Sentencing Commission's
failure to provide for completed distributions in the
application notes. He maintains further that if we agree
that this is a clarifying amendment, we should remand for
resentencing so as to give the sentencing court the
opportunity to consider the additional clarifying language.

Marmolejos's argument is based on the established
principle that a post-sentencing amendment to a
sentencing guideline or its comments should be given effect
if it "clarifies" the guideline or comment in place at the time
of sentencing. If, however, the amendment effects a
substantive change in the law, the defendant does not reap
the benefit of the new provision. See U.S. Sentencing
Guidelines Manual S 1B1.11(b)(2) (1998); Isabel v. United
States, 980 F.2d 60, 62 (1st Cir. 1992) (holding that this is
the rule in "virtually all circuits"); United States v.
Ofchinick, 877 F.2d 251, 257 n.9 (3d Cir. 1989).

The district court did not employ this test, but, rather,
held that because Amendment 518 was not listed in
S 1B1.10 of the Guidelines -- which specifies the
amendments that are to have retroactive effect -- the
change had no impact on Marmolejos's sentence. Yet the
law is clear that "courts can give retroactive effect to a
clarifying (as opposed to substantive) amendment
regardless of whether it is listed in U.S.S.G. S 1B1.10."
United States v. Capers, 61 F.3d 1100, 1109 (4th Cir.
1995), cert. denied, 116 S. Ct. 1830 (1996). Moreover, as
Marmolejos has noted and as the government has
conceded, S 1B1.10 is not relevant to our consideration of
the instant S 2255 motion, because Marmolejos does not

                                5
base his motion on a post-sentence amendment lowering
the guideline range applicable to his offense. He seeks
review only of whether the court used the proper drug
quantity in calculating his prison term. Therefore, the sole
question before us is whether Amendment 518 has, by its
terms, clarified the existing commentary in the Guidelines
or substantively changed its meaning. If the former,
Marmolejos's petition for habeas relief should be granted
and the district court should consider the amendment at a
resentencing hearing. If the latter, Marmolejos's motion
should be denied and the amendment should be given no
effect.

B.

There is no bright-line test for determining whether an
amendment to the Guidelines "clarifies" the existing law;
"these categories [are] unclear, and as is usually the case,
there are factors supporting either side." United States v.
Prezioso, 989 F.2d 52, 53 (1st Cir. 1993) (citation omitted).
Among other things, the courts look to the language of the
amendment, United States v. Nissen, 928 F.2d 690, 694-95
(5th Cir. 1991), the amendment's purpose and effect,
Capers, 61 F.3d at 1110, and "whether, as a matter of
construction, the guideline and commentary in effect at
that time is really consistent with the amended manual."
United States v. Bertoli, 40 F.3d 1384, 1405 (3d Cir. 1994).

Under the former version of Application Note 12, the
Sentencing Commission had addressed only "the weight
under negotiation in an uncompleted transaction" as the
basis to calculate the applicable amount for sentencing,
unless the defendant "did not intend to produce and was
not reasonably capable of producing" this amount. U.S.
Sentencing Guidelines Manual app. C at 858 (1998)
(emphasis added). The prior text of the application note
provided no guidance as to what amount of drugs a court
should consider in sentencing a defendant convicted of
participating in a completed transaction. Thus, the terms of
the previous application note were facially ambiguous; the
note spoke only to uncompleted deals.

By contrast, the amended commentary provides that "the
agreed-upon quantity of the controlled substance shall be

                               6
used to determine the offense level unless the sale is
completed and the amount delivered more accurately
reflects the scale of the offense." Id. As a result, Application
Note 12 now specifies that the actual weight delivered,
rather than the weight under negotiation, should be used
for calculating a defendant's sentence if the sale was
completed. Marmolejos argues that this change fills a
textual void in the language of the commentary and clarifies
the Guidelines by resolving the ambiguity created by the
preceding version of the application note.

Marmolejos's argument that the removal of the ambiguity
renders the amendment a clarification is buttressed by the
opinion of the only other circuit to have addressed this
issue. In United States v. Felix, 87 F.3d 1057 (9th Cir.
1996), the defendant, like Marmolejos, argued for
application of Amendment 518 so that his sentence would
be calculated with reference to the amount of drugs
actually delivered, rather than by reference to the weight of
the drug sale he had negotiated. The Ninth Circuit noted
that the "prior version of Application Note 12 was silent as
to the amount of cocaine to be considered in a completed
transaction," and concluded that "until Application Note 12
was amended, the appropriate weight of drugs to consider
in a completed transaction was ambiguous; a court might
sentence on the amount under negotiation or the amount
delivered." Id. at 1060. Thus, it, too, held that "by
specifying the weight to consider in a completed
transaction, the current version of Application Note 12
clarifies the Guidelines, and should be given retroactive
effect." Id.4
_________________________________________________________________

4. Felix also found support for this conclusion in a statement from the
Sentencing Commission regarding Amendment 518. The Sentencing
Commission had written that Amendment 518 was adopted, in part,
because "[d]isputes over the interpretation of this application note have
produced much litigation." U.S. Sentencing Guidelines Manual app. C at
860 (1998). Felix concluded that this demonstrated that Amendment 518
was intended to clarify an ambiguity under the prior commentary. 87
F.3d at 1060. However, a review of the eight cases cited in the comment
reveals that the "disputes" referred to a circuit split concerning the
burden of proof in S 2D1.1, not to disputes as to the calculation of drug
quantities as such. Consequently, unlike the Felix court, we do not find
the Sentencing Commission's comments helpful in resolving the issue
before us.

                               7
The government advances two arguments in support of
its view that the amendment effected a substantive change
in the law, rather than a clarification. First, the government
claims that Amendment 518 substantively changed the
Guidelines because it revised the note in a way that
conflicted with the developing caselaw. Most courts
construing the prior version of Application Note 12 had held
that a court should use the negotiated amount of drugs
when calculating the base offense level for a defendant
involved in a completed transaction. See, e.g., United States
v. Buggs, 904 F.2d 1070, 1078 (7th Cir. 1990); United
States v. Alvarez-Cardenas, 902 F.2d 734, 736 (9th Cir.
1990); United States v. Alston, 895 F.2d 1362, 1369-71
(11th Cir. 1990).5 Therefore, the government argues, the
amendment necessarily changed the law by requiring the
courts to consider the actual amount of narcotics sold,
rather than the amount negotiated, when sentencing
defendants convicted of participating in completed deals.

Our answer to this, however, is that merely because the
courts were resolving an ambiguity in the prior law by
supplying a meaning that was neither stated in, nor clear
from, the language of the application note, does not mean
that the new wording has fashioned a substantive change
to the Guidelines. In fact, one could posit that quite the
opposite was the case -- that the new language was
fashioned to clarify the ambiguity made apparent by the
caselaw. In any event, while Amendment 518 may alter the
practice of the courts in construing S 2D1.1, and may even
reverse the caselaw interpreting Application Note 12, it is
the text of the amendment -- not the courts' gloss on that
text -- that ultimately determines whether the amendment
is a clarification or a substantive revision.6
_________________________________________________________________

5. In fact, most of these courts simply assumed that Application Note 12
required using the negotiated quantity in completed transactions, writing
that "[u]nder the sentencing guidelines, the amount of the drug being
negotiated, even in an uncompleted distribution, shall be used to
calculate the total mount [sic] in order to determine the base level."
United States v. Perez, 871 F.2d 45, 48 (6th Cir. 1989).

6. It should be noted that the evolving caselaw would be viewed
differently if the new language raised ex post facto issues by resulting
in
an increase in the defendant's sentence. Here, however, we have no ex
post facto concerns, because application of Amendment 518 would
reduce, rather than increase, Marmolejos's term of imprisonment.

                               8
We explored a similar dilemma in United States v.
Joshua, 976 F.2d 844 (3d Cir. 1992), where we held that a
court could consider a change to a guideline's text despite
the fact that it mandated a result different from that
reached by a prior panel. The defendant in Joshua argued
that the district court should have used an amendment to
U.S.S.G. S 4B1.2 clarifying the definition of a "crime of
violence" to lower his sentence under the Guideline's career
offender provisions. The difficulty was that,
"[u]nfortunately, this amendment to the commentary
urge[d] us to interpret the guideline in a manner
inconsistent with two recent decisions of this court." Id. at
852. Nevertheless, after reviewing the Sentencing
Commission's role in the statutory scheme, we concluded
that the Commission, like an administrative agency, has
the authority to overturn precedent in order to clarify an
ambiguity in the law and to promote uniformity in the
application of a statute. Id. at 855. Indeed, "[w]here a prior
panel of this court has interpreted an ambiguous statute in
one way, and the responsible administrative agency later
resolves the ambiguity another way, this court is not bound
to close its eyes to the new source of enlightenment." Id.7
Therefore, we do not view the inconsistency between the
caselaw and the amendment to Application Note 12 as
requiring a conclusion that the amendment works a
substantive change.

We are similarly unpersuaded by the government's
second contention -- that the commentary to Amendment
518 evinces an intent to create a substantive change in the
_________________________________________________________________

7. The Supreme Court has since disagreed in part with the analogy we
employed in Joshua, writing that the Sentencing Commission's
commentary in the Guidelines is more "akin to an agency's interpretation
of its own legislative rules," rather than to an agency's construction of
a
federal statute that it administers. Stinson v. United States, 508 U.S.
36,
44-45 (1993). Nevertheless, Sentencing Commission commentary still
remains "controlling authority," id. at 45, that is to be applied in all
but
the most limited circumstances. Id. at 38. Therefore, we believe that the
basic principle of Joshua remains good law; because of the Sentencing
Commission's broad power to interpret the Guidelines, clarifying
amendments should be considered by the sentencing court despite any
conflict with established precedent, unless ex post facto concerns are
present.

                               9
law. The Sentencing Commission's explanation of
Amendment 518 states that "this amendment revises the
Commentary to S 2D1.1 to provide that in a case involving
negotiation for a quantity of a controlled substance, the
negotiated quantity is used to determine the offense level
unless the completed transaction establishes a different
quantity." U.S. Sentencing Guidelines Manual app. C at
860 (1998) (emphasis added). The government asserts that
the Sentencing Commission used the word "revises" to
illustrate that Amendment 518 effected a substantive
change. Had the Commission intended merely to clarify the
existing guideline, the government argues, it would have
used the term "clarifies" rather than the term "revises," as
it did in drafting several other amendments.

We disagree. As an initial matter, the manner in which
the Commission describes a guideline amendment is not
dispositive. As we made clear in Bertoli, "our own
independent interpretation of the pre-amendment language
is controlling," 40 F.3d at 1407 n.21, and the mere fact
that an amendment is referred to as a clarification or a
revision is ordinarily of slight import to our analysis.

Additionally, the Commission's use of the term "revises"
in this instance reveals little about the intended effect of
Amendment 518. The Commission states that Amendment
518 "revises the Commentary to S 2D1.1," to which we
respond: of course it does. It "revises" the commentary in
the same way that every amendment revises the
commentary -- by changing, altering, or modifying the text.
The amendment does not say that it `revises the method by
which the courts determine the correct quantity of drugs
for sentencing purposes under S 2D1.1,' or that it revises
the calculation of drug quantities under the Guidelines.
Rather, it states simply that it "revises the Commentary"
language itself. Therefore, we do not believe that the
Commission's use of the term "revises" informs our decision
as to whether its intent was to substantively change the
law.

The line between a clarification and a revision may be a
fine one, but we believe the difference can be discerned in
this case. Amendment 518 does not change the method for
calculating amounts involved in uncompleted sales, but

                               10
merely clarifies the proviso for completed ones. Accordingly,
we conclude that Amendment 518 to the Sentencing
Guidelines represents a clarification of the previous
application note, because it fills a void and resolves an
ambiguity in S 2D1.1 regarding the proper weight of drugs
for a court to consider in sentencing a defendant involved
in a completed narcotics transaction.

III.

The district court's Orders dated June 11, 1996, and
July 29, 1996, will be REVERSED, the judgment of
sentence will be VACATED, and the cause will be
REMANDED for resentencing and other proceedings
consistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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