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United States v. C.D.

United States Court of Appeals, Tenth Circuit

February 22, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
C.D., Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
E.F., Defendant-Appellant. UNITES STATES OF AMERICA, Plaintiff - Appellee,
v.
G.H., Defendant-Appellant.

         APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS[*]

          Paige 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 Appellants.

          Carrie 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 Appellees.

          Before TYMKOVICH, Chief Judge, and McKAY and BALDOCK, Circuit Judges.

          BALDOCK, CIRCUIT JUDGE.

         Defendants 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).

         Section 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).[1] 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 subject-matter jurisdiction.

          I.

         Section 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.[2]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 ...


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