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February 23, 1996


The opinion of the court was delivered by: LAMBERTH

 This matter comes before the court on remand from the Court of Appeals. Defendant was convicted of one count of distribution of cocaine base and one count of possession with intent to distribute cocaine base. Because defendant had two prior felony convictions, defendant qualified as a career offender under the United States Sentencing Guidelines ("Guidelines") and, consequently, faced a maximum term of life imprisonment. Defendant claimed that he first became aware that he "qualified" as a career offender at the sentencing hearing. Defendant further represented that had counsel made him aware that he would be subject to enhanced punishment because of his career offender status, he would have entered a guilty plea early on in the prosecution to avoid triggering the career criminal penalties. Defendant therefore requested a three point reduction in his offense level under United States Sentencing Guidelines § 3E1.1(b)(2) ("U.S.S.G. § 3E1.1(b)(2)") for this "hypothetical" acceptance of responsibility.

 The trial court agreed that trial counsel's failure to inform defendant of his career offender status and the possibility of the application of penalty enhancement provisions constituted constitutionally ineffective assistance of counsel. However, the court observed that the only prejudice suffered by defendant was that he lost the ability to plead to the indictment, which, had he done so, would have qualified for a two point reduction for acceptance of responsibility. The court rejected defendant's argument that he was entitled to third point reduction under U.S.S.G. § 3E1.1(b)(2) based on his own representation that he would have entered his plea well in advance of trial had he known the consequences of his career offender status. The court therefore granted defendant a two point reduction of his offense level for the "hypothetical" acceptance of responsibility, and sentenced defendant to 360 months on each count, with the sentences to run concurrently. See Court's Order of May 20, 1993.

 Defendant appealed his conviction, claiming a variety of errors in the court's disposition of his sentencing. The Court of Appeals affirmed this court's reasoning in nearly all respects, but disagreed with this court's resolution of the issue whether defendant was entitled to a third point reduction under U.S.S.G. § 3E1.1(b)(2). The Court of Appeals therefore remanded the case for the purpose of determining the "probability that [defendant], if properly advised, would have secured the third point under U.S.S.G. § 3E1.1(b)(2)."

 On remand, defendant now argues not only that this court should award the third point reduction pursuant to U.S.S.G. § 3E1.1(b)(2), but also that this court should further reduce defendant's offense level pursuant to then newly promulgated commentary to U.S.S.G. § 4B1.1 n.2 ("U.S.S.G. Amendment 506") and U.S.S.G. § 5K2.0. U.S.S.G. Amendment 506 revises the calculation of the offense level for career offenders under U.S.S.G. § 4B1.1 so that penalty enhancement provisions based on prior criminal history are not taken into account when determining a defendant's offense level. Under this revised calculus, defendant argues that his offense level should be further reduced. Additionally, defendant requests a downward departure under U.S.S.G. § 5K2.0 based on his efforts to improve his life over the past four years of his incarceration.

 Upon consideration of the filings and arguments of counsel and the relevant authorities, the court shall grant defendant's motion for a third point reduction under § 3E1.1(b)(2). However, the court finds U.S.S.G. Amendment 506 to be inconsistent with the Congressional mandate in 28 U.S.C. § 994(h) and therefore invalid as a matter of law. Accordingly, defendant's motion requesting a downwards resentence and revision of offense level computation pursuant to U.S.S.G. Amendment 506 shall be denied. Defendant's request for downward departure under U.S.S.G. § 5K2.0 shall also be denied. The court's reasoning is set forth below.

 A. Third Point Reduction under U.S.S.G. § 3E1.1(b)(2)

 U.S.S.G. § 3E1.1(b)(2) allows a three point reduction for acceptance of responsibility for defendants whose offense level is Level 16 or above. Defendant argues that he is entitled to the full benefit of U.S.S.G. § 3E1.1(b)(2) because he would have "done or accepted anything" to avoid career criminal penalties -- including the possibility of entering an early plea -- had trial counsel made him aware of his career offender status. Def's Mot. Down. Dep., at 8. At the time of defendant's sentencing, this court agreed that trial counsel had rendered constitutionally ineffective assistance of counsel by failing to advise defendant of the applicability of the career offender provisions. However, the court determined that defendant was entitled only to a two point reduction because, in light of his alibi defense and his aggressive pursuit of a suppression motion, defendant was unlikely to have pled early enough in the course of his prosecution to qualify for the third point reduction. See Tr. IX, at 12-14.

 The Court of Appeals, however, disagreed with this line of reasoning. According to the Court of Appeals, defendant's alibi defense and suppression motion should have no bearing on the court's determination of when defendant would have hypothetically entered a guilty plea. Chevalier Thompson v. United States, 307 U.S. App. D.C. 221, 27 F.3d 671, 677 (D.C. Cir. 1994). As the Court stated in its opinion, "the choices [defendant] actually made do not necessarily shed any useful light on the choices he would have made if he had been properly advised." Id.

 By excluding from consideration defendant's alibi defense and defendant's vigorous pursuit of the suppression motion, the Court of Appeals generates an aggressively pro-defendant hypothetical in which the only conduct that is considered relevant is defendant's own ruminations as to what his conduct might have been if he had it all to do over again. Because the Court of Appeals grants the defendant both the benefit of hindsight and unmitigated possibility, this court has no alternative but to accept defendant's assertion that he would have entered an early guilty plea as a genuine possibility -- however removed from the facts of this case. Accordingly, the court shall grant defendant's request for a third point reduction under U.S.S.G. § 3E1.1(b)(2).

 B. Offense Level Recalculation Pursuant to U.S.S.G. Amendment 506

 U.S.S.G. Amendment 506 represents one of the more recent efforts by the United States Sentencing Commission ("Commission") to carry out the duties assigned to it by Congress and enumerated in 18 U.S.C. § 994. Specifically at issue in this case is subsection (h), which provides in relevant part:

The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized.

 18 U.S.C. § 994(h) (emphasis added). The Commission first implemented § 994(h) through the Career Offender Guideline, U.S.S.G. § 4B1.1. In U.S.S.G. § 4B1.1, the Commission made use of the term "offense statutory maximum," which referred to the maximum term of imprisonment authorized "for the offense of conviction." Id. The Commission intended the term "offense statutory maximum" to be the equivalent of the phrase "maximum term authorized" found in 28 U.S.C. § 994(h). See U.S.S.G. § 4B1.1, comment. (n.2.)(Nov. 1993). Courts have generally interpreted the phrase "offense statutory maximum" to mean either the statutory maximum applicable to the offense of conviction simpliciter or the enhanced statutory maximum that results after any applicable penalty enhancement provisions are taken into account. See United States v. Smith, 984 F.2d 1084, 1086-87 (10th Cir.), cert. denied, 126 L. Ed. 2d 161, 114 S. Ct. ...

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