July 18, 2019

Tenth Circuit: Previous Downward Departure of Defendant’s Criminal History Category Disregarded at Resentencing

The Tenth Circuit Court of Appeals published its opinion in United States v. Boyd on Monday, July 15, 2013.

Occasionally the United States Sentencing Commission revises a guideline to reduce the offense level for certain conduct and makes the change retroactive. Those sentenced under the old guideline can then seek reductions in their sentences. At resentencing, the district court recalculates the defendant’s guideline range, replacing the provision used in the original sentencing with the revised provision but leaving all other guideline application decisions unaffected.

Travis Boyd was convicted of conspiring to possess cocaine with the intent to distribute and possessing cocaine with intent to distribute. At sentencing, the district court used the 1998 edition of the Guidelines Manual. It calculated Defendant’s offense level as 40 and reduced Mr. Boyd’s criminal-history category from III to I. Defendant’s resulting guideline range was 292 to 365 months’ imprisonment. He was sentenced to 300 months’ imprisonment.

On November 1, 2011, Amendment 750 to the Sentencing Guidelines went into effect. It increased the amount of crack cocaine necessary to qualify for various offense levels. Defendant moved for a reduction in sentence. The district court reduced Defendant’s sentence to 292 months using an offense level of 38 and a criminal-history category III. Defendant appealed, arguing his new sentence should be based on a criminal history category I.

The sole issue on this appeal was whether the district court’s decision at the original sentencing to grant a downward departure of the defendant’s criminal history category to “I” was to be disregarded in calculating the defendant’s amended guideline range.

Although Defendant’s argument was far from frivolous, it ignored the final clause of the definition of “applicable guideline range:” “the guideline range that corresponds to the offense level and criminal history category determined pursuant to § 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” USSG § 1B1.10 n.1(A) (2011) (emphasis added). Accordingly, the district court correctly resentenced Defendant using his predeparture criminal-history category III.

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