United States v. C.D.

848 F.3d 1286

UNITED STATES of America, Plaintiff–Appellee,

v.C.D., Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.E.F., Defendant–Appellant.

Unites States of America, Plaintiff–Appellee,

v.G.H., Defendant–Appellant.

No. 15-3318

No. 16-3024

No. 16-3033

United States Court of Appeals, Tenth Circuit.

Filed February 22, 2017

Paige A. Nichols, Research and Writing Specialist (Melody Brannon, Kansas Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Topeka, Kansas, for Appellants.

Carrie N. Capwell, Assistant United States Attorney (Thomas E. Beall, Acting United States Attorney, with her on the brief), United States Attorney's Office, Kansas City, Kansas, for Appellees.

Before TYMKOVICH, Chief Judge, and McKAY and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendants in these consolidated appeals pleaded guilty to conspiracy to manufacture and distribute "crack" cocaine in violation of 21 U.S.C. §§ 841(a)(1) & 846. Because Defendants each had a prior felony drug conviction, they faced a mandatory minimum sentence of 20 years' imprisonment as fixed by 21 U.S.C. § 841(b)(1)(A). This mandatory minimum sentence was greater than the high end of Defendants' respective advisory guideline ranges, so 20 years became Defendants' "guideline sentence." U.S.S.G. § 5G1.1(b). Due to their substantial assistance to the Government in its investigation or prosecution of others, however, the district court granted Defendants a downward departure pursuant to 18 U.S.C. § 3553(e), a statutory exception to their statutorily-mandated minimum sentence. The district court reduced C.D.'s sentence from 240 months to 180 months, E.F.'s sentence from 240 months to 170 months, and G.H.'s sentence from 240 months to 151 months. Defendants now claim 18 U.S.C. § 3582(c)(2) provides an additional statutory exception to their original 20–year mandatory minimum sentence, and so moved in the district court to further reduce their sentences. The district court denied the motions based on its review of the sentencing factors set forth in 18 U.S.C. § 3553(a).

Section 3582(c)(2) provides that a court may not modify a sentence of imprisonment previously imposed except—

in the case of a defendant who has been sentenced based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o) [authorizing the Commission's periodic review and revision of the Sentencing Guidelines], ...

the court may reduce the term of imprisonment,

after considering the factors set forth in section 3553(a) to the extent that they are applicable,

if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

(emphasis and spacing added). After Defendants' sentencings, the Sentencing Commission lowered by two offense levels the guideline sentencing ranges under which Defendants would have been sentenced but for 21 U.S.C. § 841(b)(1)(A)' s mandatory minimum sentence. SeeU.S.S.G. Manual, supp. app. C, amend. 782 at 63 (Nov. 1, 2014). Unfortunately for Defendants, that "but for" is insurmountable. Under Tenth Circuit precedent, in particular United States v. White , 765 F.3d 1240 (10th Cir. 2014), Defendants most assuredly were not "sentenced based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Rather, the district court sentenced Defendants "based on" a mandatory minimum established by Congress of 20–years' imprisonment, reduced by a departure as authorized by Congress "so as to reflect [their] substantial assistance." 18 U.S.C. § 3553(e).¹ Exercising appellate jurisdiction pursuant to 18 U.S.C. § 3742(a), we vacate the district court's decisions denying Defendants' respective motions on the basis of the § 3553(a) factors and, consistent with controlling precedent, remand with instructions to dismiss the motions for want of subject-matter jurisdiction.

I.

Section 3582(c)(2)plainly tells us a defendant must overcome three distinct hurdles before he may obtain a sentence reduction thereunder. White , 765 F.3d at 1245–46 & n.4. First , under the statute's "based on" clause, the defendant must show 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. As we shall see, our decision in White makes the point crystal clear. Id. at 1242, 1245 n.3, 1250. Because this first prerequisite to § 3582(c)(2) relief presents a matter of statutory interpretation bearing on the district court's jurisdiction, it presents a question of law reviewable de novo.² Id. at 1245. Second , under § 3582(c)(2)'s "consistent with" clause, the defendant must establish his request for a sentence reduction is consistent with the Commission's policy statements related to § 3582(c)(2). Those statements and accompanying commentary appear at U.S.S.G. § 1B1.10. Although not a jurisdictional prerequisite to § 3582(c)(2) relief, this second requirement, like the first, bears on the statute's scope and thus presents a question of law reviewable de novo. United States v. Battle , 706 F.3d 1313, 1317 (10th Cir. 2013). Third , the defendant must convince the district court he is entitled to relief in light of the applicable sentencing factors found in 18 U.S.C. § 3553(a). Whether a defendant has satisfied § 3582(c)(2)'s third requirement is a query committed to the sound discretion of the district court and is reviewable for an abuse of discretion. United States v. Piper , 839 F.3d 1261, 1266 (10th Cir. 2016).

In its respective orders denying Defendants relief (all of which are nearly identical), the district court did not address § 3582(c)(2)'s first hurdle, the court wrote extensively about the statute's second hurdle, and, after a brief analysis, the court resolved the motions on the basis of its third hurdle. The court erred when it failed to address § 3582(c)(2)'s first hurdle. But its error is perhaps understandable. By conceding Defendants' motions, the Government offered the district court no help on questions regarding § 3582(c)(2)'s scope that have federal courts divided and the Sentencing Commission speaking in less-than-clear terms.³ On appeal, the Government continues to offer little assistance by suggesting Defendants satisfy both § 3582(c)(2)'s "based on" and "consistent with" clauses. But the Government cannot concede a court's criminal jurisdiction where it does not exist, and so we begin and end our analysis with § 3582(c)(2)'s first requirement—the "based on" clause. United States v. McGaughy , 670 F.3d 1149, 1155 (10th Cir. 2012) (observing that subject-matter jurisdiction cannot be conferred or waived by consent, estoppel, or failure to challenge).

II.

In White , we addressed whether § 3582(c)(2) empowered the district court to reduce a sentence where the court employed a subsequently amended applicable guideline range during the calculation of an upward departure, but did not rely on that range to determine the defendant's guideline sentence because he was subject to a mandatory 60–month sentence under 18 U.S.C. § 924(c). White , 765 F.3d at 1245. Under such circumstances, we held the court lacked § 3582(c)(2) authorization in the jurisdictional sense. Id. at 1242. Reasoning that the range on which a criminal sentence is based is determined "prior to any discretionary departures ," id. at 1246 (emphasis in original) (quoting United States v. Darton , 595 F.3d 1191, 1197 (10th Cir. 2010) ), we explained:

[T]he range upon which Mr. White's sentence was "based" was the 60–month mandatory minimum ... even though the district court ultimately departed upward therefrom, and even though that departure explicitly referenced a since-amended guideline range. To be sure, that enhancement was, in some sense, based on the now-lowered crack cocaine guidelines—in that those guidelines helped to establish the 70–to–87–month figure upon which the sentencing court relied when determining how much additional time to add to Mr. White's guideline sentence. However, his term of imprisonment—and indeed the departure-based enhancement included therein—was based on the unchanged mandatory 60–month figure that accompanied his only crime of conviction.

Id. (emphasis omitted). While the district court in White correctly decided § 3582(c)(2) did not authorize the defendant's request for a sentence reduction, we concluded the court erred in denying the motion on the merits, rather than dismissing it for want of jurisdiction. Id. at 1246, 1250. We closed by observing that "[t]he remedy for any dissatisfaction with the results in particular cases [where a defendant's minimum sentence is dictated by statute] lies with Congress and not with this Court. Congress may amend the statute; we may not." Id. at 1250.

In the present cases, just as in White , 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

...