00-2946 U.S. v. Gracia

“Although not applicable to the 1998 guidelines used in Gracia’s case, we note that as of Nov. 1, 2000, the Sentencing Commission amended the Statutory Index (Appendix A), specifying which guideline section applies to the statutory conviction. The Commission wrote:

‘The amendment modifies secs. 1B1.1(a), 1B1.2(a), and the Statutory Index’s introductory commentary to clarify the inter-relationship among these provisions. The clarification is intended to emphasize that the sentencing court must apply the offense guideline referenced in the Statutory Index for the statute of conviction unless the case falls within the limited “stipulation” exception set forth in sec. 1B1.2(a). Therefore, in order for the enhanced penalties in sec. 2D1.2 to apply, the defendant must be convicted of an offense referenced to sec. 2D1.2, rather than simply have engaged in conduct described by that guideline. Furthermore, the amendment deletes Application Note 3 of sec. 1B1.2 (Applicable Guidelines) . . .

[which] note has been used by some courts to permit a court to decline to use the offense guideline referenced in the Statutory Index in cases that were allegedly “atypical” or “outside the heartland.”‘

“U.S.S.G. App. C Supp., amend. 591, at 32 (2000) (emphasis added). This amendment expressly rejects exceptions under the ‘heartland’ analysis.”

Appeal from the United States District Court for the Southern District of Illinois, Murphy, J., Harlington Wood, J.