District Judge David Nuffer
MEMORANDUM DECISION AND ORDER DISMISSING MOTION TO REDUCE SENTENCE
District Judge David Nuffer
Defendant Wayne Leroy Burr seeks a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the United States Sentencing Guidelines, which "provides a retroactive two-offense-level reduction for certain drug offenses."
18 U.S.C. § 3582(c)(2) - Motion for Reduction of Sentence. Amendment 782 ("Motion"), docket no. 599, filed June 30, 2017.
United States v. Wilson, 638 Fed. App'x 722, 723 (10th Cir. 2016).
Because Mr. Burr's sentence was not based on a guideline range which was subsequently lowered by Amendment 782, Mr. Burr's is ineligible for relief under § 3582(c)(2), and his Motion is DISMISSED for lack of jurisdiction.
Docket no. 599, filed June 30, 2017.
DISCUSSION
"Generally, federal courts lack jurisdiction to modify a term of imprisonment once it has been imposed." "Nevertheless, a district court may modify a sentence if there is statutory authorization to do so." Such authorization is found at 18 U.S.C. § 3582(c)(2). "Section 3582(c)(2) allows courts to consider certain factors and reduce a sentence that was based on a sentencing range that subsequently has been lowered by the Sentencing Commission if doing so is consistent with the Sentencing Commission's policy statements."
United States v. Larsen, 664 Fed. App'x 751, 752 (10th Cir. 2016) (citing Dillon v. United States, 560 U.S. 817, 819 (2010)).
Id. (citing United States v. Graham, 704 F.3d 1275, 1277 (10th Cir. 2013)).
Id. (citing 18 U.S.C. § 3582(c)(2)).
To obtain a sentence reduction under § 3582(c)(2), "a defendant must overcome three distinct hurdles[.]" "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." "Second, under § 3852(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." "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)."
United States v. C.D., 848 F.3d 1286, 1289 (10th Cir. 2017) (emphasis in original).
Id. (emphasis in original).
Id.
Id. (emphasis in original).
Id.
Id. at 1289-90 (emphasis in original).
Mr. Burr's Motion fails to overcome the first hurdle for obtaining a reduction of his sentence under § 3582(c)(2). Mr. Burr argues he is entitled to a reduction of his sentence under § 3582(c)(2) based on the Sentencing Commission's Amendment 782. Amendment 782 "modified U.S.S.G § 2D1.1(c)'s Drug Quantity table" by reducing "the base offense levels for many federal drug trafficking crimes by two levels." Amendment 782 became effective on November 1, 2014, and was made retroactive by the Sentencing Commission's Amendment 788.
Motion at 5-6.
United States v. Castillo-Arment, 658 Fed. App'x 931, 932 (10th Cir. 2016).
Id.
Mr. Burr pleaded guilty to one count of conspiracy to distribute heroin, a violation of 21 U.S.C. § 841(a)(1), and one count of money laundering, a violation of 18 U.S.C. § 1957. He was sentenced on June 29, 2016, after the effective date of Amendment 782. Mr. Burr's presentence report identified his guideline range of imprisonment as 151 months to 188 months based on a total offense level of 32 and a criminal history category of III. And used the 2015 Sentencing Guidelines Manual, incorporating all guideline amendments—including Amendment 782—to determine his offense level. Therefore, because Amendment 782 was used to determine Mr. Burr's guideline range, his guideline range was not subsequently lowered by Amendment 782.
Judgement in a Criminal Case ("Judgment") at 1, docket no. 546, filed July 6, 2016; Statement by Defendant in Advance of Plea of Guilty and Plea Agreement Pursuant to Fed. R. Crim. P. 11(c)(1)(C) ("Plea Agreement") at 1-2, docket no. 510, filed Apr. 12, 2016; Minute entry for Proceedings Held Before Kenneth G. Gale, docket no. 509, filed Apr. 12, 2016.
Minute Entry for Proceedings Held Before Judge David Nuffer, docket no. 544, filed June 29, 2016.
Castillo-Arment, 658 Fed. App'x at 932.
Presentence Investigation Report ¶ 93, docket no. 538, filed June 13, 2016.
Id. ¶¶ 39-50.
Additionally, Mr. Burr was sentenced to a stipulated 96-month term of imprisonment. Mr. Burr's Plea Agreement expressly provides that "[p]ursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the sentence imposed by the Court will be 96 months imprisonment, which I agree is a reasonable sentence."
Judgment at 2; Plea Agreement ¶ 12.b.
Plea Agreement ¶ 12.b.
Under precedent established by Justice Sotomayor's concurrence in Freeman v. United States and the Tenth Circuit in United States v. Graham, the "two situations in which a [R]ule 11(c)(1)(C) plea agreement is based on a [g]uidelines sentencing range [are]: (1) when the agreement calls for the defendant to be sentenced within a particular [g]uidelines sentencing range, or (2) when the plea agreement provides for a specific term of imprisonment but also makes clear that the basis for the specific term is a [g]uidelines sentencing range applicable to the offense to which the defendant pleaded guilty." "In the second situation, the sentencing range that forms the basis of the specified term should be evident from the agreement itself."
564 U.S. 522, 534-43 (2011) (plurality opinion).
704 F.3d 1275 (10th Cir. 2013).
United States v. Jones, 634 Fed. App'x 649, 650 (10th Cir. 2015) (internal quotations and punctuation omitted).
Id. at 650-51 (internal quotations omitted).
Mr. Burr's sentence does not fall into either of these situations. Mr. Burr's Plea Agreement does not call for him to be sentenced within a particular guideline sentencing range. It calls for a specific 96-month term of imprisonment. The Plea Agreement also makes no reference to Mr. Burr's guideline range being the basis for the 96-month term of imprisonment. The only reference to the sentencing guidelines in the Plea Agreement reads:
Plea Agreement ¶ 12.b.
I know that the sentencing procedures in this case and the ultimate sentence will be determined pursuant to
18 U.S.C. § 3553(a), and that the Court must consider, but is not bound by, the United States Sentencing Guidelines, in determining my sentence. I have discussed these procedures with my attorney. I also know that the final calculation of my sentence by the Court may differ from any calculation the United States, my attorney, or I may have made, and I will not be able to withdraw my plea if this occurs. However, because my plea of guilty is being entered pursuant to Rule 11(c)(1)(C), as explained below, I know that I will be able to withdraw my plea if the Court does not accept the terms of this agreement.
Therefore, Mr. Burr's sentence was based on his agreement with the government, not a guideline sentencing range.
Because Mr. Burr's sentence was not based on a guideline range which Amendment 782 subsequently lowered, Mr. Burr is ineligible for a sentencing reduction under § 3582(c)(2). Therefore, jurisdiction over Mr. Burr's Motion is lacking.
Munoz, 682 Fed. App'x at 636.
C.D., 848 F.3d at 1289.
ORDER
IT IS HEREBY ORDERED that Mr. Burr's Motion is DISMISSED for lack of jurisdiction.
Docket no. 599, filed June 30, 2017. --------
Signed August 29, 2017.
BY THE COURT
/s/_________
District Judge David Nuffer