"maximum term authorized" can only be read in this context to mean the enhanced statutory maximum.
This reading is supported by the D.C. Circuit's reasoning in United States v. Garrett, 295 U.S. App. D.C. 1, 959 F.2d 1005 (D.C. Cir. 1992). In Garrett, the D.C. Circuit interpreted the guideline phrase "offense statutory maximum," a phrase which the Commission intended to be the equivalent of the statutory language "maximum term authorized." See U.S.S.G. § 4B1.1, comment. (n.2.)(Nov. 1993). The Court rejected the argument that the guideline phrase "offense statutory maximum" refers to the unenhanced statutory maximum. Id. at 1010-11. The Court explained that such a reading would "thwart congressional intent." Id. at 1011. According to the Court, it would be senseless to concluded that "Congress . . . intended to erase the statutory distinctions among offenders based either on their past actions or on the circumstances of the offense . . . ." Id. at 1011. Because the guideline phrase "offense statutory maximum" was thought to be equivalent to the phrase "maximum term authorized," this analysis applies with equal force in this case.
The legislative history of § 994(h) also suggests that Congress intended the phrase "maximum term authorized" to refer to the enhanced maximum penalty when such provisions were applicable. The Senate Committee enacted § 994(h) to replace the existing sentencing provisions for "dangerous special offenders," 18 U.S.C. § 3575 (repealed 1984), and "dangerous special drug offenders," 21 U.S.C. § 849 (repealed 1994). See S. Rep. No. 225, 98th Cong.2d Sess. 120 (1984), reprinted in 1984 U.S.C.C.A.N. at 3182, 3303. The purpose of these two provisions was to enable courts to sentence dangerous defendants to terms of imprisonment "longer than that which would ordinarily be provided." S. Rep. No. 225 at 117. The Senate Committee believed that imprisonment "longer than the maximum provided in the statute defining the [underlying] felony" was necessary for "the protection of the public." Id. The purpose of these special offender statutes was clear: to provide, in appropriate circumstances, enhanced punishment beyond that otherwise provided by the underlying statute. See, e.g., United States v. Sutton, 415 F. Supp. 1323, 1324 (D.D.C. 1976). Congress intended § 994(h) to address these "same considerations." S. Rep. No. 225 at 120. Thus, it is reasonable to conclude that Congress intended "maximum term authorized" to mean the statutory maximum or the enhanced statutory maximum, if the statutory enhancement provisions were applicable.
2. Chevron Deference to Commission's Implementation of U.S.S.G. Amendment 506
Although this court has determined that the phrase "maximum term authorized" means, in certain instances, the enhanced statutory maximum, the court must still determine whether U.S.S.G. Amendment 506 satisfies Congress' mandate to sentence career offenders "at or near" that maximum. Defendant contends that, even if § 994(h) refers to the enhanced statutory maximum, the language "at or near" is "a relative term" and that the Commission's interpretation of that provision is entitled to substantial deference under Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). The government, however, argues that U.S.S.G. Amendment 506 is invalid as a matter of law because it is inconsistent with the plain language of 28 U.S.C. § 994(h). According to the government, the court is not obliged to defer to the Commission's reading of § 994(h) as reflected in U.S.S.G. Amendment 506. Rather, it is precisely this inconsistency with the plain meaning of § 994(h) that renders U.S.S.G. Amendment 506 invalid and unenforceable by the court.
As an initial matter, it is clear that the Commission's implementation of U.S.S.G. Amendment 506 does not deserve the sort of deference contemplated in Chevron. The Supreme Court stated at the outset of its opinion in Chevron that "if the intent of Congress is clear, that is the end of the matter." Chevron, 467 U.S. at 842. The Court, elaborating on this point, noted that agency interpretation is provided deference only if the enabling statute is "silent or ambiguous with respect to the specific issue." Id. at 843. In this case, the Congressional mandate that career offenders receive sentences "at or near" the statutory maximum is neither unclear nor ambiguous. Although Congress could have been more explicit in terms of limiting the Commission's discretion, the phrase "at or near" can be read in the plain and ordinary sense. "Common definitions of the term 'near' specify that an object (or limit) is 'near' another if it is 'not a far distance from' or 'close to' the other object (or limit)." Labonte, 70 F.3d at 1418 (Stahl, J., dissenting) (citing Webster's Third International Dictionary (1986) and The American Heritage Dictionary (2d College Ed. 1985)). Thus, contrary to defendant's contention, the plain meaning of Congress' directive that career offenders be sentenced "at or near" the maximum is readily ascertainable.
Given the fairly unambiguous and narrow ordinary meaning of the phrase "at or near," it is also quite obvious that U.S.S.G. Amendment 506 fails to satisfy Congress' "at or near" directive. As Judge Stahl explained:
Under Amendment 506, a defendant who qualifies as a Career Offender and whose punishment has been enhanced pursuant to 21 U.S.C. § 841(b)(1)(C) to a maximum possible term of thirty years is assigned a base sentencing range of only 210 - 262 months. Such a range is but 58.3 to 72.78 percent of the maximum possible term of thirty years (360 months).
Id. at 1418. There can be no doubt that, despite some ambiguity in the term "near" at the margins, such a sentencing scheme does not satisfy the Congressional mandate that career offenders be sentenced "at or near" the maximum term authorized. In the realm of percentages, 72.8 percent -- let alone 58.3 percent -- would not ordinarily be considered at or near 100 percent.
This is not to say that § 994(h) should be read to prohibit any change in the guidelines that has the effect of reducing the sentence that can be meted out to a particular offender. If this were true, even downward adjustments for acceptance of responsibility would come under scrutiny. The point is simply that the Commission should not be permitted to run roughshod over the clear intention of Congress to impose sentences close to the statutory maximum on the most dangerous, recidivist criminals. See Sanchez-Lopez, 879 F.2d at 559. In carrying out the Congressional mandate, in whatever fashion it seeks to do so, the Commission cannot avoid its basic responsibilities which are articulated in § 994(h).
In short, the court must reject defendant's argument that the Commission's implementation of U.S.S.G. Amendment 506 is entitled to substantial deference under Chevron. The phrase "at or near" is a clear and fairly unambiguous statement of Congress' intent to limit the Commission's discretion in the course of establishing guideline ranges for career offenders. The sentencing scheme contemplated by U.S.S.G. Amendment 506 does not comport with the plain and ordinary meaning of the phrase "at or near." Because U.S.S.G. Amendment 506 is inconsistent with the Congressional mandate embodied in § 994(h), and because the Commission's interpretation of § 994(h) is not entitled to substantial deference, the court must find U.S.S.G. Amendment 506 invalid and unenforceable as a matter of law. Accordingly, defendant's motion requesting downwards resentence and revision of offense level computation based on U.S.S.G. Amendment 506 shall be denied.
C. Request for Downward Departure Under U.S.S.G. § 5K2.0
Defendant also moves this court to depart downward based on defendant's conduct during the past four years of his incarceration. U.S.S.G. § 5K2.0, which implements 18 U.S.C. § 3553(b), authorizes a court to impose a sentence outside the guideline range if the court finds "that there exists an aggravating or mitigating circumstance . . . not adequately taken into consideration by the [Commission]" when it formulated the sentencing guideline. 18 U.S.C. § 3553(b). Although defendant's progress in his correctional facility demonstrates a worthy desire on his part to become a productive citizen of this country, the nation's federal prisons have not deteriorated to the extent that early indications of inmate rehabilitation represent the extraordinary or atypical case. Downward departures predicated on U.S.S.G. § 5K2.0 are exceedingly rare precisely because such departures are reserved for truly extraordinary cases. This case simply does not present an extraordinary characteristic or set of distinguishing circumstances sufficient to warrant a sentence different than the sentence called for in the guidelines. Accordingly, defendant's request for downward departure under U.S.S.G. § 5K2.0 shall be denied.
For the foregoing reasons, it is hereby ORDERED that:
1. Defendant's request for a third point reduction pursuant to U.S.S.G. § 3E1.1(b)(2) is GRANTED;
2. Defendant's Request for Downwards Resentence and Revision of Offense Level Computation pursuant to U.S.S.G. Amendment 506 is DENIED; and
3. Defendant's request for downward departure under U.S.S.G. § 5K2.0 is DENIED.
Accordingly, defendant shall be re-sentenced utilizing Total Offense Level 34.
Royce C. Lamberth
United States District Judge