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United States v. New

United States District Court, D. Kansas

April 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES NEW, Defendant. CIVIL ACTION No. 17-2188-KHV

          MEMORANDUM AND ORDER

          Kathryn H. Vratil United States District Judge

         On January 15, 2014, the Court sentenced defendant to 180 months in prison. This matter is before the Court on defendant's Amended Motion To Modify Sentence Pursuant To 18 U.S.C. § 3582(c)(2) With Incorporated Memorandum Of Law (Doc. #104) filed February 21, 2017 and defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #115) filed March 31, 2017. For reasons stated below, the Court dismisses defendant's Section 3582 motion for lack of jurisdiction, overrules defendant's Section 2255 motion and denies a certificate of appealability.

         I. Motion To Reduce Sentence Under 18 U.S.C. § 3582(c)(2)

         Defendant asks the Court to reduce his sentence under Amendment 782 to the United States Sentencing Guidelines and 18 U.S.C. § 3582(c)(2). The Court sentenced defendant to 180 months in prison based on the statutory mandatory minimum of life and the government request to reduce his sentence under 18 U.S.C. § 3553(e). See Judgment In A Criminal Case (Doc. #90) filed January 27, 2014 at 2; Statement Of Reasons (Doc. #91) filed January 27, 2014 at 1; Presentence Investigation Report (“PSIR”) (Doc. #80) filed October 1, 2014, ¶ 83. In particular, the government recommended a reduction which would include the “equivalent” of removing the Section 851 enhancement and then granting a 50 percent reduction from the low end of that hypothetical guideline range (360 months to life). Sentencing Motion (Doc. #86) filed January 9, 2014 at 2.

         A federal district court may modify a defendant's sentence only where Congress has expressly authorized it to do so. See 18 U.S.C. § 3582(c); United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Defendant seeks relief under Section 3582(c)(2), which permits the Court to reduce a sentence if defendant has been sentenced to a term of imprisonment “based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o).” 18 U.S.C. § 3582(c). If eligible, the Court may reduce defendant's term of imprisonment after considering any applicable factors set forth in Section 3553(a), “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c); see Dillon v. United States, 560 U.S. 817, 826-27 (2010); United States v. Green, 625 F.App'x 901, 904 (10th Cir. 2015).

         The Tenth Circuit has held that to obtain relief under Section 3582(c)(2), defendant must overcome three distinct hurdles: (1) under the statute's “based on” clause, defendant must show he was sentenced based on a guideline range the Sentencing Commission lowered after his sentencing; (2) under the statute's “consistent with” clause, defendant must show that his request for a sentence reduction is consistent with the Commission's policy statements and (3) defendant must convince the district court that he is entitled to relief in light of the sentencing factors found in Section 3553(a). United States v. C.D., 848 F.3d 1286, 1289-90 (10th Cir. 2017). Under Tenth Circuit precedent, the first hurdle is jurisdictional. Id. at 1289.

         Defendant has not shown that his sentence was “based on” the Guidelines. As noted, the Court sentenced defendant to 180 months in prison based on the statutory mandatory minimum of life and the government request to reduce his sentence under 18 U.S.C. § 3553(e). In C.D., the Tenth Circuit stated as follows:

In the present cases, just as in [United States v.] White, [765 F.3d 1240 (10th Cir. 2014)], each Defendant's mandatory minimum sentence was greater than the high end of his applicable guideline range. Just as in White, this meant the district court ultimately had to disregard the applicable range in determining each Defendant's guideline sentence. So, just as in White, the district court's initial sentence calculation was “based on” the statute establishing the mandatory minimum rather than the applicable guideline range. The district court then exercised its discretion, just as in White, to depart from Defendant's mandatory minimum. The one possibly relevant distinguishing factor between these cases and White is that here, unlike in White, the district court exercised its discretion to depart downward from the mandatory minimum sentence pursuant to § 3553(e) to reflect Defendants' substantial assistance to the Government.
But in the Tenth Circuit this distinction makes no difference. In a decision predating White and § 3582(c)(2), we-
reject[ed] the notion that once a downward departure from a statutory minimum sentence has been granted pursuant to § 3553(e) . . . the sentence has been ‘opened' for additional downward departures specified in the Sentencing Guidelines. . . . When a sentence is fixed by statute, any exception to the statutory directive must also be given by statute.
United States v. Campbell, 995 F.2d 173, 175 (10th Cir. 1993). Subsequently, in United States v. A.B., 529 F.3d 1275, 1281-84 (10th Cir. 2008), we reaffirmed Campbell's holding that “only substantial assistance considerations may support a downward departure below a mandatory minimum sentence.” And finally, White explains that § 3582(c)(2) changes nothing: “[F]or purposes of § 3582(c)(2), a previously imposed sentence can never be ‘based on' a discretionary departure.” White, 765 F.3d at 1247 (emphasis added). Because the reason for a departure from a mandatory minimum is irrelevant to White's construction of § 3582(c)(2)'s “based on” clause, such reason is irrelevant to our construction as well.
White undoubtedly stands for the categorical proposition that a district court has no authority to consider a § 3582(c)(2) motion where a defendant's criminality qualifies him for a statutorily-mandated minimum sentence above an otherwise applicable guideline range, even when a guideline amendment subsequently lowers that range. In other words, nothing in § 3582(c)(2) suggests Congress intended therein to create another statutory exception to a mandatory minimum sentence where a defendant subject to such minimum previously was awarded a downward departure for substantial assistance pursuant to § 3553(e). Section 3553(e) is one of only two congressionally-authorized exceptions to a mandatory minimum sentence. Congress has not authorized the district court to depart below a mandatory minimum sentence on the basis of factors other than substantial assistance. A.B., 529 F.3d at 1280-85 (rejecting the argument that once the district court granted the defendant a § 3553(e) departure from a mandatory minimum, the court was obligated to consider granting a variance on the basis of the § 3553(a) factors). The justification for a second departure-in these cases a two-point reduction in each Defendants' otherwise applicable guideline range after a departure for substantial assistance-has no bearing on the fact that, as a matter of law in the Tenth Circuit, Defendants' sentences were “based on” a mandatory minimum of 20-years imprisonment.

C.D., 848 F.3d at 1291-93 (footnote omitted).

         As in C.D., this Court lacks jurisdiction to hear defendant's claim because his sentence was not “based on a guideline range.” 18 U.S.C. § 3582(c)(2). In C.D., each of the three defendant's statutory minimum sentence was higher than the high end of the guideline range. Here, in contrast, the statutory minimum term of life was the same as the high end of the guideline range (360 months to life, before adjustment for statutory minimum). Even so, the Guidelines and statute of conviction required the Court to apply the high end point of that range. See U.S.S.G. § 5G1.1(c)(2) (sentence may be imposed at any point within “applicable guideline range” provided sentence not less than statutorily required minimum sentence). Accordingly, the Guidelines sentence was life in prison.[1] Although the statutory minimum under 21 U.S.C. § 841(b)(1)(A) overlapped with the high end point of the guideline range, the statutory minimum and the statutory departure ...


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