United States of America v. Calvin Grier, Iii

Honorable Louis H. Pollak, Senior Judge of the United*
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3507
UNITED STATES OF AMERICA
v.
CALVIN GRIER, III,
Appellant
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
Argued March 5, 2009
Before: SLOVITER and HARDIMAN, Circuit Judges and
POLLAK , District Judge*

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(Filed:October 26, 2009)
William A. Behe [Argued]
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108-0000
Attorneys for Appellee
Edward J. Rymsza, III [Argued]
Miele & Rymsza
36 West Fourth Street
Williamsport, PA 17701-0000
Attorneys for Appellant
OPINION OF THE COURT
HARDIMAN, Circuit 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

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United States v. Shoupe came before this Court three1
times. We are principally concerned with the third and final
appeal, decided in 1994, and all references to Shoupe relate to
that decision, unless noted otherwise.
3
history category, but not with respect to his offense level. In
United States v. Shoupe, 35 F.3d 835 (3d Cir. 1994), we held1
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.
I.
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

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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

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we have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742.
II.
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).
A.
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

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likelihood of recidivism.” Shoupe, 35 F.3d at 836. Shoupe
relied upon the following language of USSG § 4A1.3:
If reliable information indicates that the criminal
history category does not adequately reflect . . .
the likelihood that the defendant will commit
other crimes, the court may consider imposing a
sentence departing from the otherwise applicable
guideline range.
USSG § 4A1.3 (1994). In the absence of a definition of the
word “departing,” we concluded that the sentencing court could
lower both the criminal history category and the offense level,
reasoning that “[b]ecause career offender status enhances both
a defendant’s criminal history category and offense level, . . . a
sentencing court may depart in both under the proper
circumstances.” 35 F.3d at 838.
At the time Shoupe was decided, four courts of appeals
had already ruled that USSG § 4A1.3 allowed for downward
departures in both criminal history category and offense level.
See United States v. Bowser, 941 F.2d 1019, 1026 (10th Cir.
1991); United States v. Reyes, 8 F.3d 1379, 1388-89 (9th Cir.
1993); United States v. Clark, 8 F.3d 839, 846 (D.C. Cir. 1993);
United States v. Fletcher, 15 F.3d 553, 556-57 (6th Cir. 1994).
The Second and Eighth Circuits later adopted this interpretation.
See United States v. Rivers, 50 F.3d 1126, 1131 (2d Cir. 1995);
United States v. Greger, 339 F.3d 666, 672 (8th Cir. 2003).
Only the Eleventh Circuit took a different position, holding that
Ҥ 4A1.3 departures must proceed on only the horizontal axis

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and not the vertical axis.” United States v. Smith, 289 F.3d 696,
711 (11th Cir. 2002).
B.
The Government argues that we need not apply Shoupe
because that case is no longer good law in light of the “changed
sentencing landscape” provided by United States v. Booker, 543
U.S. 220 (2005), and United States v. Gunter, 462 F.3d 237 (3d
Cir. 2006) as well as the 2003 amendment to USSG § 4A1.3.
We disagree with the Government’s analysis of the
impact of Booker. Neither Booker nor Gunter affects the
validity of Shoupe. After Booker, a district court must
undertake a three-step process in imposing a sentence: (1)
calculate the applicable Guidelines range, (2) formally rule on
any departure motions, and (3) exercise its discretion in applying
the factors set forth in 18 U.S.C. § 3553(a). See Gunter, 462
F.3d at 247. By making the Guidelines advisory, Booker gave
district courts discretion at step three—but only after steps one
and two have been completed properly. See United States v.
Pelletier, 469 F.3d 194, 203 (1st Cir. 2006); cf. United States v.
Solis-Bermudez, 501 F.3d 882, 886-87 (8th Cir. 2007)
(discussing the district court’s discretion post-Booker to decline
to depart upward under USSG § 4A1.3(a), but to vary upward
under § 3553(a)(1) and (a)(2)(c) on the basis of criminal
history).
Contrary to the Government’s argument, this appeal
involves a step-two departure motion. Thus, the fact that Booker
made the Guidelines advisory and gave discretion to district

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Obviously, the Supreme Court’s decision in Booker2
changed the sentencing landscape insofar as it allows sentencing
courts to achieve at step three what could not be accomplished
at step two. When Shoupe was decided, the Guidelines were
mandatory and district courts had recourse only to departures to
ensure a defendant’s criminal history was proper. In the post-
Booker regime, however, the fact that a defendant would not be
eligible for a reduction in offense level at step two is far less
important because of the broad discretion district judges possess
to apply the § 3553(a) factors at step three. See generally
United States v. Tomko, 562 F.3d 558 (3d Cir. 2009) (en banc).
8
judges under § 3553(a) does not affect our analysis of § 4A1.3
because Grier’s step-two departure motion must be decided
correctly before the district judge exercises her discretion at step
three. See United States v. King, 454 F.3d 187, 196 (3d Cir.
2006). Therefore, we hold initially that Shoupe has not been2
affected by any subsequent decision of the Supreme Court or
this Court.
C.
Although Shoupe was not affected by the advisory nature
of the Guidelines after Booker, we must consider the
Government’s argument that the 2003 amendments to the
Guidelines displaced Shoupe. As we shall explain, the 2003
amendments to the Guidelines have displaced Shoupe, but not
for the reason initially claimed by the Government.

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Section 4A1.3 was amended extensively by the
Sentencing Commission in 2003. As amended, § 4A1.3
provides for departures based on overstated criminal history:
If reliable information indicates that the
defendant’s criminal history category substantially
over-represents the seriousness of the defendant’s
criminal history or the likelihood that the
defendant will commit other crimes, a downward
departure may be warranted.
USSG § 4A1.3(b)(1) (2003). The 2003 version of § 4A1.3,
though similar to the 1994 version in its provision for downward
departures, differs in one respect critical to this appeal. The
1994 version used the word “departing,” while the 2003 version
references a “departure.” As previously noted, the Guidelines
in effect at the time Shoupe was decided did not include a
definition of the term “departing” as the term was used when
describing a downward adjustment pursuant to § 4A1.3. The
2003 amendments filled this gap by adding a definition of
“departure” to a pre-existing glossary of commonly used
Guidelines terms. This glossary is found in the Commentary to
USSG § 1B1.1, and provides:
“Departure” means (i) for purposes other than
those specified in subdivision (ii), imposition of
a sentence outside the applicable guidelines range
or of a sentence that is otherwise different from
the guidelines sentence; and (ii) for purposes of
§ 4A1.3 (Departures Based on Inadequacy of
Criminal History Category), assignment of a

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criminal history category other than the otherwise
applicable criminal history category in order to
effect a sentence outside the applicable guideline
range. “Depart” means grant a departure.
USSG § 1B1.1 cmt. n.1(E). In other words, “departure”—as it
is used in the current version of § 4A1.3---“means . . .
assignment of a criminal history category other than the
otherwise applicable criminal history category,” and nothing
else.
A comparison of the two subparts of the definition
confirms that offense level departures are not permitted under
the current version of § 4A1.3. Subpart (i) defines “departure”
as “imposition of a sentence outside the applicable guidelines
range or . . . that is otherwise different from the guidelines
sentence.” USSG § 1B1.1 cmt. n.1(E). Because this definition
does not specifically reference offense level or criminal history
category, adjustments to both axes are presumably included
within the definition. If the Sentencing Commission intended to
include offense level departures under § 4A1.3, there would
have been no need for a separate definition of “departure” under
subpart (ii); a single definition would have sufficed. By carving
out a separate definition of “departure” for purposes of § 4A1.3,
the Commission limited the type of departures available
thereunder.
Basic tenets of statutory construction confirm our
interpretation. See United States v. Milan, 304 F.3d 273, 294
(3d Cir. 2002) (canons of construction apply when interpreting
the Sentencing Guidelines). Consistent with expressio unius est

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exclusio alterius, the inclusion of criminal history category in
the definition without mention of offense level expresses the
Commission’s intent to preclude offense level departures under
§ 4A1.3. See United States v. Landmesser, 378 F.3d 308, 312
(3d Cir. 2004) (applying expressio unius est exclusio alterius to
interpret the Sentencing Guidelines).
Arguing against the ongoing relevancy of Shoupe in light
of the 2003 amendments, the Government contends that the
addition of § 4A1.3(b)(3)(A) sounded the death knell for
Shoupe. Section 4A1.3(b)(3)(A) limits downward departures to
one criminal history category when a defendant’s criminal
history is overstated. The amended guideline provides:
(b) Downward Departures --
(1) Standard for Downward Departures --
If reliable information indicates that the
defendant’s criminal history category
s u b s ta n tia lly o v e r-re p re s e n ts th e
seriousness of the defendant’s criminal
history or the likelihood that the defendant
will commit other crimes, a downward
departure may be warranted.
. . .
(3) Limitations. --
(A) Limitation on Extent of
Downward Departure for Career

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It appears that none of our sister circuits has directly3
addressed the question of whether district courts may still grant
downward departures in offense level after the 2003
amendments; however, two district courts have held that
sentencing courts are now limited only to departing as to
criminal history category. See United States v. Menafee, 2008
WL 3285254 *1 n.2 (D. Conn. Aug. 7, 2008) (holding that 2003
amendment to § 1B1.1 definition of departure “appears to have
prohibited vertical departures pursuant to Section 4A1.3” even
though “the Second Circuit has yet to clarify the issue”)
amended on reconsideration by, United States v. Menafee, 626
F. Supp. 2d 270, 271 (D. Conn. 2009) (reaffirming that vertical
downward departures are no longer permitted after 2003
amendment); United States v. Nielsen, 427 F. Supp. 2d 872, 878
(N.D. Iowa 2006) (holding that, in recognition of circuit split
over downward departures under § 4A1.3, “in 2003, the
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Offender. – The extent of a
downward departure under this
subsection for a career offender
within the meaning of § 4B1.1
(Career Offender) may not exceed
one criminal history category.
USSG § 4A1.3(b) (2003).
While § 4A1.3(b)(3)(A) limits the extent of a downward
departure under § 4A1.3, it is the definitional amendment at
§ 1B1.1 that limits the type of departure available under
§ 4A1.3, thereby prohibiting downward departures in offense
level and superseding Shoupe.3

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Commission amended § 4A1.3 and, in accordance with Eleventh
Circuit’s view, specifically limited departures for career
offenders to one criminal history category.”).
Grier also argues that Shoupe remains good law because4
this Court has cited it with approval in two not-precedential
opinions, even after the 2003 amendments. This argument is
unpersuasive because those opinions fail to address Shoupe’s
continuing validity in light of the 2003 amendment to USSG §
1B1.1.
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D.
Grier argues that the 2003 amendments did not affect the
District Court’s ability to grant downward departures in offense
level because the plain language of § 4A1.3(b)(3)(A) does not
expressly prohibit vertical departures. He further argues that the
language of § 4A1.3 should not be read to preclude such
departures in the absence of any indication to do so from the
Sentencing Commission. Tellingly, Grier fails to address the4
additional limitations placed on § 4A1.3 departures by the 2003
amendment to § 1B1.1.
Contrary to Grier’s argument, the Sentencing
Commission demonstrated its intent to preclude departures not
specifically enumerated in § 4A1.3. In commentary explaining
the “reason for amendment,” the Commission stated that the
2003 amendments were a response to a directive from Congress
in the PROTECT Act “to promulgate (1) Appropriate
amendments to the sentencing guidelines to ensure that the
incidence of downward departures is substantially reduced . . .

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.” In doing so, the Commission anticipated that the amendments
would achieve that congressional intent:
The Commission anticipated that this amendment
will substantially reduce the incidence of
downward departures by prohibiting several
factors as grounds for departure, restricting the
availability of certain departures, clarifying when
departures are appropriate, and limiting the extent
of departure permissible for certain offenders.
USSG App. C, amend. 651, Reason for Amendment (2003).
With respect to the specific provisions at issue in this
case, the Commission stated that the purpose of the amendment
to § 1B1.1 was “to provide uniform definitions of departure,
upward departure, and downward departure.” Regarding the
amendment to § 4A1.3, the Commission stated:
§ 4A1.3(b) provides that a downward departure
may be warranted if reliable information indicates
that the defendant’s criminal history category
substantially over-represents the seriousness of
the defendant’s criminal history or the likelihood
that the defendant will commit other crimes.
The amendment, however, adds several
prohibitions and limitations to the availability of
downward departures based on criminal history .

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. . Section 4A1.3(b) also contains certain
limitations on the extent of departure available
under this provision. Specifically, a downward
departure pursuant to this section for a career
offender within the meaning of § 4B1.1 (Career
Offender) may not exceed one criminal history
category.
USSG App. C, amend. 651, Reason for Amendment (2003). In
light of the foregoing, the Commission intended to preclude
departures in offense level under § 4A1.3. Permitting
downward departures in offense level which are not enumerated
in the Guidelines would thwart the Commission’s purpose of
reducing the incidence and extent of downward departures, and
of providing a uniform definition of “departure.” Accordingly,
we reject Grier’s argument.
III.
Grier also challenges the substantive reasonableness of
his sentence, claiming that the District Court abused its
discretion in applying the factors set forth in 18 U.S.C.
§ 3553(a). Specifically, Grier asserts that a 37-month term of
incarceration was “greater than necessary” to achieve the goals
enumerated in § 3553(a) in light of the overstated nature of his
criminal history and Grier’s family situation, as the single father
of a child with spina bifida. Our review of the record shows that
the District Court painstakingly considered Grier’s arguments
and the § 3553(a) factors before finding that a downward
variance from the Guidelines range was unwarranted.
Accordingly, we hold that the District Court did not abuse its

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discretion in imposing a 37-month term of incarceration. See
United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en
banc).
IV.
In sum, the 2003 amendment to USSG § 1B1.1, which
added a definition of “departure” for purposes of § 4A1.3,
prohibits district courts from making downward departures in
offense level and supersedes our prior holding to the contrary in
Shoupe. Therefore, the District Court properly applied the
Guidelines when it held that it could not depart downward in
offense level under § 4A1.3 on the basis of Grier’s overstated
criminal history. Furthermore, the District Court adequately
considered Grier’s argument for a downward variance and the
37-month term of incarceration was substantively reasonable.
Accordingly, we will affirm the judgment of the District Court.

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