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
The opinion of the court was delivered by: Rendell, Circuit Judge:
This appeal raises the issue of whether the defendant, Freddie Marmolejos, is entitled to relief under 28 U.S.C. § 2255 and resentencing by the district court, in light of a post-sentencing amendment to the application notes to § 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.
In June 1991 Marmolejos was convicted of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. The jury found him not guilty of possession with intent to distribute cocaine under 21 U.S.C. § 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. § 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. § 2255. However, the district court denied the motion and we affirmed.
In April 1996 Marmolejos then filed a second § 2255 habeas motion for relief from the district court's judgment.*fn1 He contended that his sentencing offense level should have 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.*fn2 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. § 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).
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 § 2D1.1 addresses the method of determining the appropriate quantity if the offense involves negotiation to traffic in narcotics.*fn3 Prior to November 1995, Application Note 12 provided as follows:
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 reasonably capable of providing, the agreed-upon quantity ...