United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE.
March 22, 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. Judgment In A Criminal
Case (Doc. #81). The United States Supreme Court
recently held that a defendant who pleads guilty under Rule
11(c)(1)(C) is eligible for relief under Section 3582(c)(2)
if the Guidelines 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); see
id. at 1778 (in “usual case, ” court
acceptance of Rule 11(c)(1)(C) agreement and sentence imposed
pursuant to agreement are “based on”
defendant's Guidelines range). This matter is before the
Court on defendant's pro se Motion To Modify Or
Reduce Sentence Pursuant To 18 U.S.C. § 3582(c)(2)
(Doc. #135) filed June 25, 2018.
13, 2018, the Court directed that the Office of the Federal
Public Defender enter an appearance to represent defendant in
this proceeding and file a supplement to defendant's pro
se motion to reduce sentence. See Memorandum And
Order (Doc. #136) at 3. On July 20, 2018, Kirk Redmond,
an Assistant Federal Public Defender, entered an appearance
for defendant. On September 12, 2018, the Court directed the
parties to show cause why the Court should not sustain
defendant's pro se motion. The parties jointly request a
reduced sentence of 203 months. Defendant's Response
To Order To Show Cause (Doc. #140) filed September 21,
2018 at 1; Government's Response To Court Order
(Doc. #141) filed September 21, 2018 at 1. For reasons stated
below, the Court grants the parties' request and reduces
defendant's sentence to 203 months.
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 Guidelines 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 to grant
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 Is Eligible For Relief Under 18 U.S.C. §
782 to the United States Sentencing Guidelines
(“U.S.S.G.”) lowered the base offense levels for
certain quantities in the Drug Quantity Table at U.S.S.G.
§ 2D1.1. In Hughes, the Supreme Court clarified
that a sentence imposed pursuant to a Rule 11(c)(1)(C)
agreement falls under the general rule that a defendant's
Guidelines range is “both the starting point and a
basis for his ultimate sentence.” Hughes, 138
S.Ct. at 1776. Absent “clear demonstration, based on
the record as a whole, that the court would have imposed the
same sentence regardless of the Guidelines, ” a
defendant who pleads guilty under Rule 11(c)(1)(C) is
eligible for relief under Section 3582(c)(2). Id.
the record reflects that defendant's ultimate sentence
was based in part on his Guidelines range. See
Hughes, 138 S.Ct. at 1775 (sentence pursuant to Rule
11(c)(1)(C) agreement “based on” Guidelines range
if range was part of framework court relied on in imposing
sentence or accepting agreement). Accordingly, under
Hughes and Amendment 782, defendant is eligible for
relief under Section 3582(c)(2).
A Sentence Reduction Is Warranted
Court may reduce defendant's term of imprisonment, after
considering any applicable factors set forth in Section
3553(a), if such a reduction is warranted in whole or in part
under the circumstances of the case and is consistent with
applicable Sentencing Commission policy statements. 18 U.S.C.
§ 3582(c)(2); Dillon v. United States, 560 U.S.
817, 827 (2010); see U.S.S.G. § 1B1.10. Among
other factors, the Court must consider the nature,
seriousness and circumstances of the offense, defendant's
history and characteristics, the need to protect the public
from further crimes by defendant and any threat to public
safety. United States v. Osborn, 679 F.3d 1193,
1195-96 (10th Cir. 2012); U.S.S.G. § 1B1.10 cmt. app.
n.1(B)(ii). The Court may also consider post-sentencing
conduct. See Osborn, 679 F.3d at 1195; U.S.S.G.
§ 1B1.10 cmt. app. n.1(B)(iii). Finally, in the context
of Rule 11(c)(1)(C) agreements, the Court may consider the
benefits which defendant gained under the agreement,
“for the statute permits but does not require the court
to reduce a sentence.” Hughes, 138 S.Ct. at
1777 (quoting Freeman v. United States, 564 U.S.
522, 532 (2011)).
Count 4, defendant originally had a total offense level of 27
with a criminal history category III for a guideline range of
87 to 108 months. See Presentence Investigation
Report (Doc. #73), ¶ 119. Under Amendment 782,
defendant's amended guideline range is 70 to 87 months
(offense level 25, criminal history category III). On Count
3, defendant remains subject to a sentence of 60 months with
that term to be served consecutive to the term on Count 4.
See id., ¶¶ 118-119 (Guidelines term of
incarceration on Count 3 is statutory minimum of 60 months,
consecutive to Count 4). Accordingly, under Amendment 782,
the Court cannot impose an amended sentence below 130 months
(low end of Guidelines range on Count 4 plus mandatory
consecutive sentence of 60 months on Count 3).
determining whether a reduction of defendant's sentence
is warranted and the extent of any reduction, the Court has
considered the applicable Section 3553(a) factors including
the nature, seriousness and circumstances of the offense,
defendant's history and characteristics and the need to
protect the public from further crimes by defendant. In
addition, the Court has considered any threat to public
safety, defendant's post-sentencing conduct and the
parties' joint suggestion that an amended sentence of 203
months is appropriate. After balancing these factors and
considering the parties' responses to the Court's
order to show cause, Response To Order To Show Cause
(Doc. #140) and Government's Response To Court
Order (Doc. #141), the Court finds that a sentence of
203 months in prison is sufficient but not greater than
necessary to meet all of the objectives of federal sentencing
law. The Court therefore reduces defendant's sentence to
IS THEREFORE ORDERED that defendant's pro se
Motion To Modify Or Reduce Sentence Pursuant To 18 U.S.C.
§ 3582(c)(2) (Doc. #135) filed June 25, 2018 is
IS FURTHER ORDERED that pursuant to 18 U.S.C. §
3582(c)(2), defendant's sentence is reduced to a total of
203 months in prison (143 months on Count 4 and 60
monthson Count 3, to be served
consecutively). Except as provided above, all terms and
conditions of the original Judgme ...