Appeal from the United States District Court for the District of Columbia (No. 03cr00207-01)
The opinion of the court was delivered by: Williams, Senior Circuit Judge:
Argued September 14, 2012
Before: SENTELLE, Chief Judge, GRIFFITH, Circuit Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge WILLIAMS.
Appellant Gregory Terrell pleaded guilty to unlawful possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). On April 24, 2007, the district court sentenced him to 210 months of imprisonment, five years of supervised release, and a $100 special assessment. Terrell challenges that sentence on two primary grounds. First, he argues that it violates the ex post facto clause of the Constitution because the United States Sentencing Guidelines Manual applied by the district court was promulgated after he committed the offense of conviction and may have resulted in a harsher sentence than the one yielded by the Manual in effect at the time of offense. Second, he contends that the district court had an erroneously limited view of its discretion to impose a below-Guidelines sentence following the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005).
Although we reject Terrell's ex post facto argument, we are persuaded by his claim as to the district court's concept of its discretion, and therefore vacate the sentence and remand for resentencing.
Because Terrell failed to raise either of his arguments before the district court, we review his claims for plain error. Of the canonical statement's four requirements for plain error, the first two are that there be error and that it be "plain." United States v. Olano, 507 U.S. 725, 732 (1993). In its role as the second requirement, "plain" simply means "clear."
United States v. Williams-Davis, 90 F.3d 490, 507 (D.C. Cir. 1996). A ruling's error is clear if, at the time it was made, a clear precedent in the Supreme Court or this circuit established its erroneous character. See, e.g., United States v. Mouling, 557 F.3d 658, 664 (D.C. Cir. 2009).
Ex post facto claim. This contention is fatally undermined by the absence of any clear precedent at the time of sentencing. At all times relevant to this appeal, the Sentencing Guidelines directed courts generally to "use the Guidelines Manual in effect on the date that the defendant is sentenced." USSG § 1B1.11(a). But if application of that mandate would violate the ex post facto clause, a court must apply the Guidelines Manual that was "in effect on the date that the offense of conviction was committed." Id.
§ 1B1.11(b)(1). Application of a post-offense Guidelines Manual violates the ex post facto clause if there is a substantial risk that it will result in a more severe sentence than the defendant would have received under the Manual that was in effect when he committed the offense. See United States v. Turner, 548 F.3d 1094, 1100 (D.C. Cir. 2008).
Terrell committed his offense in April 2003, when the 2002 Guidelines Manual was in effect. At the sentencing in 2007, the district court started its analytical process with the pre-sentence report, which had been drafted under the 2005 Guidelines Manual. (By the time of sentencing, the 2006 Guidelines had become applicable, but on the issue in question there was no difference between the 2005 and 2006 versions.) Terrell argues that there is a substantial risk that he received a harsher sentence under the 2005 Manual than he would have received under the 2002 version.
His contention is based on an amendment to § 3E1.1, the Guidelines provision that governs adjustments in offense level for acceptance of responsibility. At all relevant times, § 3E1.1(a) directed a sentencing court to reduce a defendant's offense level by two levels if he "clearly demonstrates acceptance of responsibility for his offense." But the second part of the provision--§ 3E1.1(b)--was amended after Terrell committed the offense. At the time of offense, § 3E1.1(b) directed the district court to reduce a defendant's offense level by one additional level--that is, to award a "third point" for acceptance of responsibility--if the initial offense level was 16 or higher and the defendant "assisted authorities in the investigation or prosecution of his own misconduct" either by timely providing complete information regarding his involvement or by timely notifying authorities of his intention to plead guilty. With the amendment, which went into effect on April 30, 2003, § 3E1.1(b)'s "third point" became available only "upon motion of the government."
During Terrell's sentencing proceedings, the judge expressed a desire to award the third point. He asked the attorneys and the probation officer who attended the hearing whether he had discretion to do so sua sponte. Tr. 3/27/07, at 20:2-4. Based on their responses, he concluded that he did not, id. at 22:13-16, which was correct under the amended version of § 3E1.1(b) but not under the version in the 2002 Manual. The district court then asked the government to move for the third point, explaining that "188 months is just as serious as 210 months. I mean, there's a numerical difference, but in the scheme of things in the real world there's not a heck of a lot of difference." Id. at 23:11-15. Counsel for the government refused to move for the third point, arguing that Terrell had not provided authorities with the requisite assistance. Id. at 25:7-10. Because the district court believed it could not award the third point independently, Terrell received only a two-point reduction in his offense level for acceptance of responsibility. The district court sentenced him at the low end of the resulting Guidelines range.
Terrell argues that the ex post facto clause required the district court to apply the 2002 Guidelines Manual. Under it, the judge had full discretion to award (and, Terrell contends, likely would have awarded) the third point. That would have reduced Terrell's offense level by an additional step, decreasing his Guidelines range. But assuming the soundness of that claim, we believe that any error in non-application of the 2002 Manual was not a clear error. (For that reason, we need not reach the government's ...