On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 06-cr-00173) District Judge: Honorable Yvette Kane.
The opinion of the court was delivered by: Hardiman, Circuit Judge.
Before: SLOVITER and HARDIMAN, Circuit Judges and POLLAK*fn1, District Judge.
This appeal requires us to interpret the United States Sentencing Guidelines (USSG) as applied to Calvin Grier III, who was deemed a career offender under USSG § 4B1.1. The District Court-following the guidance of the United States Probation Office-held it had discretion to grant Grier a downward departure under USSG § 4A1.3 as to his criminal history category, but not with respect to his offense level. In United States v. Shoupe, 35 F.3d 835 (3d Cir. 1994),*fn2 we held that a prior version of § 4A1.3 authorized district courts to reduce a career offender's offense level and criminal history category when his career offender status over-represents his criminal history and likelihood of recidivism. The question presented in this case is whether Shoupe still controls in light of the 2003 amendments to the Sentencing Guidelines and the sea change in sentencing effectuated by the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), and our subsequent decisions.
Grier was indicted on one count of conspiracy to distribute and possess with the intent to distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. § 841. Pursuant to a plea agreement, the Government filed a one-count superseding Information, which reduced the charged amount of marijuana to less than 50 kilograms. The plea agreement also recommended that Grier be found responsible for the distribution of between 250 grams and 1 kilogram of marijuana.
The Presentence Investigation Report (PSR) classified Grier as a career offender under USSG § 4B1.1, which put him in criminal history category VI and increased his base offense level from 8 to 17. See USSG § 4B1.1 (requiring use of the offense level in the career offender table when it is greater than the offense level for the underlying crime). After a two-point reduction for acceptance of responsibility, Grier's total offense level became 15. The PSR calculated Grier's advisory Guidelines range to be 41 to 51 months of imprisonment and noted that, pursuant to USSG § 4A1.3 as written, the District Court could depart downward if it found that category VI over-represented Grier's prior record.
Grier filed various objections to the PSR. Specifically, Grier claimed that his career offender designation under USSG § 4B1.1 overstated his criminal history; he requested a downward departure pursuant to USSG § 5H1.6 based on the extraordinary family circumstance that he was a single parent caring for a daughter afflicted with spina bifida; and he sought a downward variance based on the factors set forth in 18 U.S.C. § 3553(a).
At sentencing, the District Court agreed that application of the career offender enhancement overstated Grier's criminal history. Relying on information provided by the probation officer, the District Court stated that while it could depart downward by one criminal history category, it could not adjust Grier's offense level pursuant to § 4A1.3. After departing downward from criminal history category VI to criminal history category V, the District Court fixed Grier's final Guidelines range at 37 to 46 months of imprisonment. After reviewing Grier's request for a variance, the District Court sentenced him to 37 months incarceration. Grier filed this timely appeal, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
Grier's principal argument on appeal is that the District Court erroneously held that it had discretion to reduce only his criminal history category but not his offense level.
We review the District Court's interpretation of the Sentencing Guidelines de novo, United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir. 2005), and scrutinize its findings of fact for clear error, United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008). In reviewing Grier's sentence, we must first ensure that the District Court "committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range." Gall v. United States, 128 S.Ct. 586, 597 (2007). We cannot, however, review a district court's refusal to grant a downward departure pursuant to USSG § 4A1.3(b) "unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure." United States v. Puckett, 422 F.3d 340, 344-45 (6th Cir. 2005) (citations omitted) (confirming that this standard survived the change in the Guidelines after Booker).
In Shoupe, we held that "a sentencing court may depart downward on a defendant's base offense level if the defendant's career offender status overrepresents his criminal history and likelihood of recidivism." Shoupe, 35 F.3d at 836. ...