FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
A. Nichols, Research and Writing Specialist (Melody Brannon,
Kansas Federal Public Defender, with her on the briefs),
Office of the Federal Public Defender, Topeka, Kansas, for
N. Capwell, Assistant United States Attorney (Thomas E.
Beall, Acting United States Attorney, with her on the brief),
United States Attorney's Office, Kansas City, Kansas, for
TYMKOVICH, Chief Judge, and McKAY and BALDOCK, Circuit
BALDOCK, CIRCUIT JUDGE.
in these consolidated appeals pleaded guilty to conspiracy to
manufacture and distribute "crack" cocaine in
violation of 21 U.S.C. §§ 841(a)(1) & 846.
Because Defendants each had a prior felony drug conviction,
they faced a mandatory minimum sentence of 20 years'
imprisonment as fixed by 21 U.S.C. § 841(b)(1)(A). This
mandatory minimum sentence was greater than the high end of
Defendants' respective advisory guideline ranges, so 20
years became Defendants' "guideline sentence."
U.S.S.G. § 5G1.1(b). Due to their substantial assistance
to the Government in its investigation or prosecution of
others, however, the district court granted Defendants a
downward departure pursuant to 18 U.S.C. § 3553(e), a
statutory exception to their statutorily-mandated minimum
sentence. The district court reduced C.D.'s sentence from
240 months to 180 months, E.F.'s sentence from 240 months
to 170 months, and G.H.'s sentence from 240 months to 151
months. Defendants now claim 18 U.S.C. § 3582(c)(2)
provides an additional statutory exception to their original
20-year mandatory minimum sentence, and so moved in the
district court to further reduce their sentences. The
district court denied the motions based on its review of the
sentencing factors set forth in 18 U.S.C. § 3553(a).
3582(c)(2) provides that a court may not modify a sentence of
imprisonment previously imposed except-
in the case of a defendant who has been sentenced based
on a sentencing range that has subsequently been lowered by
the Sentencing Commission pursuant to 28 U.S.C. 994(o)
[authorizing the Commission's periodic review and
revision of the Sentencing Guidelines], . . .
the court may reduce the term of imprisonment,
after considering the factors set forth in section 3553(a) to
the extent that they are applicable,
if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
(emphasis and spacing added). After Defendants'
sentencings, the Sentencing Commission lowered by two offense
levels the guideline sentencing ranges under which Defendants
would have been sentenced but for 21 U.S.C. §
841(b)(1)(A)'s mandatory minimum sentence. See
U.S.S.G. Manual, supp. app. C, amend. 782 at 63 (Nov. 1,
2014). Unfortunately for Defendants, that "but for"
is insurmountable. Under Tenth Circuit precedent, in
particular United States v. White, 765 F.3d 1240
(10th Cir. 2014), Defendants most assuredly were not
"sentenced based on a sentencing range that has
subsequently been lowered by the Sentencing Commission."
Rather, the district court sentenced Defendants "based
on" a mandatory minimum established by Congress of
20-years' imprisonment, reduced by a departure as
authorized by Congress "so as to reflect [their]
substantial assistance." 18 U.S.C. §
3553(e). Exercising appellate jurisdiction pursuant
to 18 U.S.C. § 3742(a), we vacate the district
court's decisions denying Defendants' respective
motions on the basis of the § 3553(a) factors and,
consistent with controlling precedent, remand with
instructions to dismiss the motions for want of
3582(c)(2) plainly tells us a defendant must
overcome three distinct hurdles before he may obtain
a sentence reduction thereunder. White, 765 F.3d at
1245-46 & n.4. First, under the
statute's "based on" clause, the defendant must
show he was sentenced based on a guideline range the
Sentencing Commission lowered subsequent to defendant's
sentencing. If not, the district court lacks jurisdiction
over the defendant's motion and the motion must be
dismissed. As we shall see, our decision in White
makes the point crystal clear. Id. at 1242, 1245
n.3, 1250. Because this first prerequisite to §
3582(c)(2) relief presents a matter of statutory
interpretation bearing on the district court's
jurisdiction, it presents a question of law reviewable de
novo.Id. at 1245.
Second, under § 3582(c)(2)'s
"consistent with" clause, the defendant must
establish his request for a sentence reduction is consistent
with the Commission's policy statements related to §
3582(c)(2). Those statements and accompanying commentary
appear at U.S.S.G. § 1B1.10. Although not a
jurisdictional prerequisite to § 3582(c)(2) relief, this
second requirement, like the first, bears on the
statute's scope and thus presents a question of law
reviewable de novo. United States v. Battle, 706
F.3d 1313, 1317 (10th Cir. 2013). Third, the
defendant must convince the district court he is ...