The Eighth Circuit in United States v. Tolliver, relying in part on amendment 651, reached the correct conclusion that defendants convicted of crack cocaine offenses, who qualify as career offenders (an enhancement to their sentence) and are later granted a downward departure, are not eligible for a sentence reduction under amendment 706. Though the conclusion is reasonable, the court failed to provide any justification for relying on amendment 651. The court never addressed whether the amendment was substantive or clarifying and its lack of reasoning was attacked by later decisions. This Note seeks to supplement the reasoning in Tolliver by explaining why the Eighth Circuit was justified in relying on amendment 651 to reach its conclusion and how properly resolving the applicability of amendment 651 cures the circuit split. More generally, this Note seeks to provide a framework for determining when subsequent amendments are clarifying and may properly be relied upon by attorneys and courts. Part II of this Note discusses the Guidelines, their history, and their proper application. Part III reviews the retroactive applicability of amendments and specifically amendments 651 and 706. Part IV addresses the current circuit split and the divergent reasoning regarding the applicability of the amendments. Part V analyzes the flaws of both sides of the split in determining the applicability of amendment 651 and proposes a new test for determining when an amendment is clarifying or substantive. Part VI concludes the Note by describing how the new test not only resolves the current split regarding the application of amendment 706 but also provides a framework for analyzing the applicability of retroactive amendments going forward.
Nathan D. Anderson,
Change Attorneys and Courts Can Believe In: Reviewing the Retroactive Application of Amendments to the Federal Sentencing Guidelines in United States v. Tolliver, 570 F.3d 1062 (8th Cir. 2009),
90 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol90/iss3/8