United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
8, 2010, the Court sentenced defendant to 151 months in
prison based on a binding plea agreement under Rule
11(c)(1)(C), Fed. R. Crim. P. On November 2, 2015, the Court
overruled defendant's motion to reduce his sentence under
18 U.S.C. § 3582(c)(2). The United States Supreme Court
recently held that defendants who plead guilty under Rule
11(c)(1)(C) may seek relief under Section 3582(c)(2)
“to the extent the prisoner's Guideline range was a
relevant part of the framework the judge used to accept the
plea agreement or determine the sentence.” Hughes
v. United States, 138 S.Ct. 1765, 1778 (June 4, 2018).
After Hughes, Kirk Redmond, an Assistant Federal
Public Defender, negotiated with government counsel on
potential relief under Amendment 782 to the United States
Sentencing Guidelines and 18 U.S.C. §
3582(c)(2). The parties have submitted an agreed order
on AO Form 247. The parties propose a reduction of
defendant's term of imprisonment from 151 months to 135
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 Fed.Appx. 901, 904 (10th Cir. 2015).
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.
parties have submitted an agreed order which does not address
the above issues. So the Court can properly consider the
joint request for relief, the parties shall file memoranda
which explain how defendant is eligible for relief under
Section 3582(c)(2) and why relief is appropriate in light of
the sentencing factors in Section 3553(a). In addition, the
memoranda shall address (1) the factors that the Court relied
on in accepting the recommended sentence in the Rule
11(c)(1)(C) agreement, (2) how defendant's guideline
range impacted the Court's decision to accept the Rule
11(c)(1)(C) agreement, (3) any public safety considerations
and (4) defendant's post-sentencing conduct. See
Hughes, 138 S.Ct. at 1778 (if district court would have
imposed same sentence even if defendant had been subject to
lower range, court has discretion to deny relief); United
States v. Osborn, 679 F.3d 1193, 1195 (10th Cir. 2012)
(in addition to Section 3553(a) factors, court may consider
post-sentencing conduct); U.S.S.G. § 1B1.10 cmt.
n.1(B)(ii) (public safety considerations); U.S.S.G. §
1B1.10 cmt. n.1(B)(iii) (post-sentencing conduct). In
addition, the parties shall address the calculation of the
base offense level under the amended guidelines. As with
co-defendant Carlos Dozal-Alvarez, defendant's base
offense level appears to remain at level 38 because the Court
likely would attribute at least 8.15 kilograms of
methamphetamine (actual) to him by using the conversion
percentage set forth in the presentence investigation
report.See U.S.S.G. § 2D1.1(c)(1)
(Nov. 1, 2016 ed.) (base offense level of 38 for 4.5
kilograms or more of methamphetamine(actual)); see also
Order To Show Cause [As To Carlos Dozal-Alvarez] (Doc.
#1112) filed April 27, 2015 (explaining alternative drug
calculations for methamphetamine mixture and
IS THEREFORE ORDERED that on or before July 25, 2018,
defendant shall file a memorandum in support
of his request for relief which addresses the above issues.
On or before August 6, 2018, the government shall file a
Clerk is directed to forward a copy of this order to the
Office of the Federal Public Defender.
 Because the plea agreement called for
a specific sentence and did not use or employ a guideline
sentencing range, the Court overruled defendant's motion.
See Memorandum And Order (Doc. #1988) at 1 (citing
United States v. Graham, 704 F.3d 1275, 1278 (10th
 The Honorable J. Thomas Marten of the
District of Kansas appointed the Office of the Federal Public
Defender to represent any defendant previously determined to
have been entitled to appointment of counsel or who is now
indigent to determine whether that defendant may qualify for
relief under Amendment 782.
 The presentence investigation report
states that the average purity of all methamphetamine seized
in this case was 46.05%, Presentence Investigation
Report (Doc. #857) ¶ 64, and the Court used this
conversion percentage to determine the appropriate guideline
range for the co-defendants in this case. See, e.g.,
Presentence Investigation Report [Of Secundino
Arias-Garcia] (Doc. #709) ...