United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE
case comes before the court on Defendant Jeffrey Childs'
motion for reconsideration. (Doc. 153.) In 2010, Childs was
convicted of multiple drug trafficking crimes, as well as the
use (Count 4) and possession (Count 10) of firearms in
connection with such crimes. The court sentenced Childs to
300 months imprisonment, reflecting a total of 180 months
imprisonment as to the drug trafficking counts, and two
five-year terms (each consecutive to the other terms of
imprisonment) based upon the firearms counts. In 2015, Childs
moved to reduce his sentence (Doc. 139) pursuant to 18 U.S.C.
§ 3582(c)(2), which provides that a court may modify a
term of imprisonment “in the case of a defendant who
has been sentenced to a term of imprisonment
based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission.” (Emphasis supplied.) The court denied the
motion, holding as follows:
In addition to the guideline ranges shown above the defendant
was subject to a consecutive 30-year sentence based on his
convictions on Counts 4 and 10. The defendant's 300 month
sentence was not based on the guidelines and imposed pursuant
to a binding plea agreement under Rule 11(c)(1)(C). Thus,
defendant is ineligible for a reduction of sentence under
Freeman v. United States, 131 S.Ct. 2685 (2011).
now moves for reconsideration of the court's order
denying his motion on the basis that the Supreme Court's
decision in Hughes v. United States, 138 S.Ct. 1765
(2018), has overruled Freeman v. United States, 564
U.S. 522 (2011).
Freeman, the Court's opinion did not garner a
majority. Most courts adopted Justice Sotomayor's
concurrence which stated that a sentence issued in accordance
with an 11(c)(1)(C) plea agreement is based on the plea
agreement and not on the Guidelines. Freeman, 564
U.S. at 534 (Sotomayor, J., concurring), holding modified
by Hughes, 138 S.Ct. 1765. In Hughes, the
Supreme Court clarified that a sentence imposed pursuant to a
Rule 11(c)(1)(C) agreement is eligible for relief under
Section 3582 because, under the general rule, a
defendant's Guidelines range is “both the starting
point and a basis for his ultimate sentence.” 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. Childs contends
that he is therefore eligible for relief and that the court
should reduce his sentence by 58 months, which is the
difference between the previously calculated high-end
sentencing range and the amended high-end sentencing range.
(Doc. 153 at 4.)
to Childs' position, this court is without authority to
provide relief. The Tenth Circuit has recently reaffirmed
that relief under section 3582 is allowed only after a
defendant overcomes three distinct hurdles.
United States v. C.D., 848 F.3d 1286, 1289 (10th
Cir. 2017), cert. denied, 138 S.Ct. 2618 (2018)
(emphasis in original). The first hurdle, which must be
addressed before the remaining hurdles, requires Childs to
show, “under the statute's ‘based on'
clause [that] 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.” Id. If a sentence was determined
based on the application of statutory minimums, then this
court lacks jurisdiction regardless of Childs'
essentially argues that Hughes now mandates that all
sentences are based on the Guidelines range. That is not the
case. The same day Hughes was issued, the Supreme
Court entered an opinion in Koons v. United States,
138 S.Ct. 1783 (2018). While the Court acknowledged that all
district courts are required to calculate a sentencing range
based on the Guidelines, not all sentences are “based
on” a Guidelines range. Id. at 1789. In
Koons, the Supreme Court's decision essentially
affirms the Tenth Circuit's holding in C.D. The
Now, as then, district courts calculate the advisory
Guidelines ranges, see USSG § 1B1.1(a)(7); discard them
in favor of the mandatory minimum sentences, §§
1B1.1(a)(8), 5G1.1(b); and then may use the
substantial-assistance factors to determine how far to depart
downward, §§ 1B1.1(b), 5K1.1(a). See §
3553(e). Those resulting sentences, like the sentences here,
are not “based on” a lowered Guidelines
range-they are “based on” the defendants'
mandatory minimums and substantial assistance to the
Government. And those defendants, like petitioners, are not
eligible for sentence reductions under § 3582(c)(2).
Id. at 1790.
when a court scraps the Guidelines because of mandatory
minimums, a sentence is not based on the Guidelines range. In
this case, the sentence issued was not “based on”
the calculated Guidelines range. The sentencing judge made
that clear in his initial denial issued on November 12, 2015.
(Doc. 140.) Childs' Guidelines range was 235 to 293
months and Childs was also subject to
mandatory statutory consecutive sentences of 25 years on
count 10 and 5 years on count 4. (See Docs. 99 at
27; 140.) As justification for the imposed sentence, the
sentencing judge stated as follows when entering judgment:
“The Court determines that a sentence below the
mandatory [statutory] minimum is appropriate based on the
government's oral motion for a sentence below the
mandatory minimum based on 18 U.S.C. 3553(e), and the
defendant's willingness to cooperate with the government
in future court proceedings.” (Doc. 108 at 2.) The
record clearly reflects that the sentence imposed was based
on the consideration of the statutory minimums and the
parties' agreement. (Id.; Doc. 81 at 5.) There
is nothing in the record that supports a finding that the
sentence was based on the Guidelines.
the sentencing judge imposed Childs' sentence based on
consideration of the statutory minimums and not the
sentencing Guidelines, this court lacks authority to consider
Childs' section 3582 motion. C.D., 848 F.3d at
motion for reconsideration (Doc. 153) is DISMISSED for ...