Sunday, December 01, 2013

Case o' The Week: No Tercero "Crack" at Resentencing - Tercero, USSG 1B1.10, and FSA Resentencing

  First Round: the district court finds the defendant a minor player, varies downwards from the guideline range by 15%, and imposes a crack cocaine sentence a year below the low-end of the guideline range
  Second Round: After the Fair Sentencing Act is passed, the district court gives the low-end of the new guideline range at resentencing (a mere two months off!), and holds it can’t depart or vary downwards from the guidelines.
     There is, sadly, no Tercero round.
United States v. Tercero, 734 F.3d 979 (9th Cir. Oct. 31, 2013), decision available here.

Players:  Decision by Judge D.W. Nelson, joined by Judges M. Smith & Ikuta. Hard-fought appeal by ND Cal CJA stalwart Mark Rosenbush.

Facts: Teniah Tercero was charged with conspiracy to distribute crack cocaine, and distribution of crack. Id. at 980. The plea agreement to the distribution charge permitted her to argue down to a (below-guideline) sentence of 72 months. Id. That’s where the district judge landed, concluding Tercero’s minor role “was less serious than a mechanical application of the guidelines would suggest.” Id. The plea agreement included the ND Cal’s USAO’s general appellate waiver provision. Id. at 982. After sentencing, the Fair Sentencing Act was passed and (amended) USSG Section 1B1.10 was adopted by the Sentencing Commission. Id. Tercero came back for resentencing under Section 3582(c) (the government didn’t object). Id. The district went down to the low-end of the new crack guidelines – 70 months – but held that under USSG § 1B1.10(b)(2)(A) it could go no lower. Id. at 981. (USSG § 1B1.10(b)(2)(A) has a policy note, added in 2011, that prohibits courts to resentence below the minimum of the amended guideline range. Id.) Tercero appealed.

Issue(s): “Tercero contends that § 1B1.10 contradicts Congress’s general intent in passing the FSA, which was to restore fairness to Federal cocaine sentencing.” Id. at 982 (quotations and citation omitted).

Held: “[W]e remain unpersuaded that Congress intended the FSA to implement the retroactive reduction of sentencing ranges in any particular way, much less one that conflicts with § 1B1.10 as revised.” Id. at 982-83. “[W]e hold that the district court correctly interpreted and applied both § 3582(c) and § 1B1.10.” Id. at 981.

Of Note: What’s with the substantive discussion of Tercero’s appeal, when there was an appellate waiver in the plea agreement? That’s the government’s complaint, but the Ninth was unmoved: “Tercero did not waive her right to appeal the reduced sentence.” Id. at 981. The broad waiver in the plea agreement (she did “agree to waive any right . . . to appeal any aspect of [her] sentence”) does not encompass the right to appeal a § 3582(c) decision.” Id. at 981 (citing Lightfoot, 626 F.3d at 1095).

How to Use: Crack resentencing has pretty much made its way through the pipeline. The Fair Sentencing Act is not, however, just yesterday’s news – battles fought in the FSA wars will reverberate when the Commission gets around to fixing the many other lousy guidelines. Today’s plea agreements are tomorrow’s Section 3582(c)(2) fights – and Tercero’s waiver (or rather, non-waiver) discussions are of some solace when forced to swallow waiver provisions in many standard USAO plea agreements. For an interesting, though doctrinaire, summary of the procedural issues arising from Section 3582 resentencing, see the Commissions’ outline here.
For Further Reading: Crack resentencing was the first major guideline reduction in many a year. Is it prudent to really fret over Section 3582 resentencing waivers for current cases? After all, how likely is it that the Commission (and lightning) are really going to strike twice?  
  Um, very. A.G. Holder and Congress are signaling a new skepticism towards the barbarically high federal drug sentences. Changing membership on the Sentencing Commission may let the USSG catch up to the national gestalt. In August, the Commission voted to begin a “sweeping” review of federal sentences for drug dealers. See article here. It has made it an official priority to review – and possibly amend – the Drug Quantity Table in § 2D1.1. See article here
  Ms. Tercero’s miserly two-month FSA reduction gives much food for thought on how to anticipate and litigate some of these positive guideline changes that may be on the horizon.

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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