On Appeal from the United States District Court for the District of New Jersey; D.C. Criminal No. 89-00314.
Greenberg and Cowen, Circuit Judges, and Buckwalter, District Judge.*fn*
This case involves the interplay between the career offender provisions of the sentencing guidelines, guidelines § 4B1.1, and the sentence enhancement provisions of 21 U.S.C. § 841(a)(1). In particular the question is whether the guideline should be applied to the "Offense Statutory Maximum" as enhanced by prior convictions of the defendant.
Appellant Pennel Amis was indicted in six counts: distribution of approximately 100 grams of methamphetamine, count one; distribution of approximately 140 grams of methamphetamine, count two; possession with intent to distribute approximately 57.8 grams of heroin, count three; possession with intent to distribute approximately 168.4 grams of cocaine, count four; possession with intent to distribute approximately 74.5 grams of methamphetamine, count five; and possession with intent to distribute approximately 730 grams of marijuana, count six. In each count Amis was alleged to have violated 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Amis, while represented by a private attorney, entered into a written plea agreement with the government providing for him to plead guilty to counts one and two of the indictment charging distribution of methamphetamine.*fn1 The agreement recited the possible ordinary sentences for the counts but also pointed out that "under the enhanced penalty provisions of [21 U.S.C. § 841(a)(1)], the minimum term of imprisonment on each count is ten (10) years [and] the maximum term of imprisonment is life . . . ." The agreement provided that the United States Attorney would move to dismiss the remaining counts of the indictment and would not prosecute Amis for certain other controlled substances offenses. The agreement also indicated that the sentence would be under the guidelines.
On November 3, 1989, Amis, still represented by the attorney who negotiated the plea agreement, pleaded guilty to counts one and two. At that time the government made it clear that on the basis of Amis's record it would seek imposition of the enhanced penalty provision of 21 U.S.C. § 841 and, indeed, it filed an information seeking such a penalty on that day before the hearing. The district court explained to Amis that under the enhanced penalty provisions the minimum custodial term was ten years on each count and the maximum term was life. Amis said that he understood the enhanced penalty provisions and ultimately the court accepted his guilty plea to counts one and two.
The presentence report showed that, among numerous offenses, Amis had prior state and federal controlled substance convictions so that, as Amis admits, the enhancement provisions of 21 U.S.C. § 841(b)(1) were applicable at sentencing. Accordingly, Amis was subject to a statutory maximum term of life imprisonment on each count. The presentence report also concluded that Amis was a career offender under guidelines § 4B1.2 and the factual basis for this is not disputed either. The report concluded that inasmuch as Amis was subject to life imprisonment under guidelines § 4B1.1 his offense level was 37 and, as he was a career offender, his criminal history category was VI. The report indicated, however, that inasmuch as Amis was entitled to a 2-level reduction for acceptance of responsibility his total offense level was 35. This led to a guideline imprisonment range on each count of 292 to 365 months.
At the sentencing on February 9, 1990, Amis objected to the presentence report because he viewed application of the career criminal guideline to the enhanced penalty provision as double punishment for his prior convictions. The district court, however, rejected this contention. While it indicated "that there is no case authority out there one way or the other to guide us," it concluded "that the focus should be upon what is the resulting maximum under the combined statutes, that is the statute of the substantive crime and the statute of the criminal offender and enhancement aspect of the statute . . . ." The court then sentenced Amis to concurrent sentences of 360 months on the two counts as reflected in a judgment of conviction and sentence entered February 9, 1990, and this appeal followed.*fn2
We will affirm. In United States v. Williams, 892 F.2d 296 (3d Cir. 1989), cert. denied, 496 U.S. 939, 110 L. Ed. 2d 668, 110 S. Ct. 3221 (1990), we were concerned with an appeal by a convicted felon from a conviction for possession of a gun in violation of 18 U.S.C. § 922(g)(1) whose sentence was enhanced under 18 U.S.C. § 924(e)(1) by reason of his prior convictions of three violent felonies on separate occasions. He was also treated as a career offender over his objection that by reason of the statutory sentence enhancement he was being effectively punished for the same offense twice in violation of the double jeopardy clause of the Fifth Amendment. 892 F.2d at 304. We rejected his contention as there was "only a single substantive punishment for a violent offense committed by a recidivist." Id. at 305.
While the prosecution in Williams was not for the offense involved here we see no basis to distinguish that case. At bottom the issue before us is not complicated as we need merely determine the "Offense Statutory Maximum" as used in guidelines § 4B1.1. Whatever the "Offense Statutory Maximum" might be for a defendant with no applicable criminal history, for Amis it was life.
The government points to application note 2 to guidelines § 4B1.1 as supporting its position. The note provides:
'Offense Statutory Maximum' refers to the maximum term of imprisonment authorized for the offense of conviction that is a crime of violence or controlled substance offense. If more than one count of conviction is of a crime of violence or controlled substance offense, use the maximum authorized term of imprisonment for the count that authorizes the greatest maximum term of imprisonment.
This application note was added by an amendment to the guidelines effective after the offenses in this case but we will consider it as it was intended to clarify the guidelines. See United States v. Ofchinick, 877 F.2d 251, 257 n.9 (3d Cir. 1989). The note does indeed support the government's position as the maximum term of imprisonment authorized for the conviction in this case was life. In any event with or without the note our conclusion ...