United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
September 15, 2011, the Court sentenced defendant to 240
months in prison based on a binding plea agreement under Rule
11(c)(1)(C), Fed. R. Crim. P. On February 24, 2015, the Court
dismissed defendant's motion to reduce his sentence under
18 U.S.C. § 3582(c)(2). The United States Supreme Court
recently held that a defendant who pleads guilty under Rule
11(c)(1)(C) may seek relief under Section 3582(c)(2) so long
as the defendant's guideline range was “part of the
framework the district court relied on in imposing the
sentence or accepting the agreement.” Hughes v.
United States, 138 S.Ct. 1765, 1775 (June 4, 2018).
Under 18 U.S.C. § 3582(c)(2), the Court can grant relief
on its own motion. For reasons stated below, the Court
appoints counsel for defendant and orders the parties to file
memoranda on defendant's eligibility for relief under
Appointment Of Counsel
light of Hughes, defendant potentially is eligible
for relief under Section 3582(c)(2). 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. Defendant previously
qualified for appointment of counsel. Accordingly, the Court
orders that if the Office of the Federal Public Defender can
do so without violating relevant canons of ethics, it shall
enter an appearance to represent defendant in this
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). 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.
Court can properly consider whether to grant relief, the
parties shall file memoranda which address whether defendant
is eligible for relief under Section 3582(c)(2) and whether
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)
IS THEREFORE ORDERED that if the Office of the Federal Public
Defender can do so without violating relevant canons of
ethics, it shall enter an appearance to represent defendant
in this proceeding by July 20, 2018.
IS FURTHER ORDERED that on or before July 25, 2018, defendant
shall file through counsel a memorandum which addresses the
above issues. On or before July 31, 2018, the government
shall file a response.
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 dismissed defendant's motion
for lack of jurisdiction. See Order (Doc. #873)
filed February 24, 2015 at 1 (citing United States v.
Graham, 704 F.3d 1275, 1278 (10th Cir. 2013)); see
also Memorandum And Order (Doc. #936) filed February ...