Submitted: October 21, 2016
from United States District Court for the District of
Minnesota - St. Paul
LOKEN, SMITH , and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
White pleaded guilty in 2008 to a charge that he conspired to
distribute crack cocaine. The district court sentenced him to
152 months' imprisonment. This appeal concerns the
district court's decision in 2015 on White's motion
to reduce his sentence under 18 U.S.C. § 3582(c)(2).
White's original sentencing in 2009, the district court
calculated White's guideline range as 188 to 235
months' imprisonment, and then departed downward from the
bottom of the range by 36 months under USSG § 5K2.23.
Section 5K2.23 provides that a downward departure may be
appropriate if the defendant has completed a term of
imprisonment for another offense that is relevant conduct to
the instant offense of conviction. USSG §§ 5K2.23,
5G1.3(b). The court determined that White had finished
serving 36 months in prison for drug offenses that were part
of the relevant conduct making up the conspiracy to which he
pleaded guilty. Therefore, the court sentenced White to a
term of 152 months.
2014, while White was serving his term of imprisonment, the
United States Sentencing Commission adopted Amendment 782 and
applied it retroactively. The amendment reduced by two levels
the offense levels assigned to the drug quantities that
trigger the statutory mandatory minimum penalties
incorporated in USSG § 2D1.1. USSG App. C., Amend. 782
(2014). White then moved to reduce his sentence under 18
U.S.C. § 3582(c)(2) based on the amended guideline.
the amended guidelines, White's advisory guideline range
was 151 to 188 months. White argued that the district court
should reduce his sentence from the original 152 months to
120 months, the statutory minimum. He reasoned that the court
originally departed downward by 36 months from the bottom of
the advisory range, and he urged the court to follow the same
course (subject to the statutory minimum) when making a
reduction under § 3582(c)(2). In other words, he asked
the court to begin with a guideline sentence of 151 months at
the bottom of the advisory range, and then to apply a
"credit" of 36 months (limited to 31 months by the
statutory minimum) based on discharged terms of imprisonment
for offenses that were relevant conduct to the instant
district court reduced White's sentence to 151 months,
the bottom of the amended guideline range, but declined to
reduce the term further. The court concluded that it lacked
authority under § 3582(c)(2) to give White
"credit" for the 36 months that he served for prior
convictions. White now appeals, arguing that the district
court erroneously denied his request for a larger reduction.
We conclude that White preserved this argument, and we review
the district court's interpretation of the statute and
sentencing guidelines de novo.
district court imposes sentence, the court can modify the
term of imprisonment only as provided in 18 U.S.C. §
3582(c). Section 3582(c)(2) allows a district court to reduce
a defendant's term of imprisonment if the defendant was
sentenced based on a sentencing range that is subsequently
lowered by the Sentencing Commission. Any reduction must be
"consistent with applicable policy statements issued by
the Sentencing Commission." 18 U.S.C. § 3582(c)(2).
applicable policy statement here is USSG § 1B1.10. Under
that provision, with one exception, the "court shall not
reduce the defendant's term of imprisonment . . . to a
term that is less than the minimum of the amended guideline
range." USSG § 1B1.10(b)(2)(A). The commentary is
explicit that this limitation applies even when the original
sentence was below the guideline range based on a
"downward departure or variance." USSG §
1B1.10, comment. (n.3). The only exception to this limitation
is where the defendant's original term of imprisonment
was less than the guideline range "pursuant to a
government motion to reflect the defendant's substantial
assistance to authorities." USSG § 1B1.10(b)(2)(B);
see United States v. Harris, 688 F.3d 950, 952 (8th
Cir. 2012). In that case, "a reduction comparably less
than the amended guideline range . . . may be
appropriate." USSG § 1B1.10(b)(2)(B).
original term of imprisonment was less than the guideline
range because the district court granted a downward departure
under § 5K2.23 to account for White's discharged
terms of imprisonment. In ruling on White's later motion
to reduce his sentence, the district court correctly
determined that § 3582(c)(2) and USSG § 1B1.10
forbid the court to reduce White's sentence below the
amended guideline range. Although the court granted a
downward departure at the original sentencing, the guidelines
do not allow the court to make a proportionate reduction or
departure below an amended guideline range on a motion under
argues that the limitation of § 1B1.10 should not apply,
because the reduction at his original sentencing was a
"credit" for discharged terms of imprisonment and
not a "traditional" departure or variance based on
unique characteristics of the crime or the offender. Citing
United States v. Malloy, 845 F.Supp.2d 475, 484
(N.D.N.Y. 2012), White contends that a defendant is eligible
to receive a reduction for undischarged terms of
imprisonment under § 5G1.3(b), and he complains that it
would thus be "inequitable" to refuse a reduction
for discharged terms of imprisonment based on § 5K2.23.
The short answer is that however § 5G1.3(b) applies in a
§ 3582(c)(2) proceeding, the guidelines are clear that
the court cannot reduce a defendant's term below the
amended guideline range based on a downward departure for
reasons other than substantial assistance. Section 5K2.23
provides for a downward departure based on a defendant's
discharged term of imprisonment. See United States v.
Shows, No. 2:09-CR-084, 2015 WL 2341031, at *2-4 (E.D.
Tenn. May 14, 2015).
event, we also do not see an anomaly in the treatment of
discharged and undischarged terms of imprisonment, because
§ 5G1.3(b) does not permit a district court to reduce a
defendant's sentence below the amended guideline range.
Section 5G1.3(b) provides that the sentencing court
"shall adjust the sentence" for any period of
imprisonment already served on a defendant's undischarged
term of imprisonment for another offense that is relevant
conduct to the instant offense of conviction. USSG §
5G1.3(b)(1). But § 5G1.3(b) does not reduce the
defendant's guideline range; it allows for a
"sentence reduction" after the court has
determined the applicable range. USSG § 5G1.3, comment.
(n.2(C)); see USSG § 1B1.1(a)(8). The
undischarged term of imprisonment thus does not factor into a
court's determination of an amended guideline range in a
§ 3582(c)(2) proceeding, and it does not justify fixing
a term of imprisonment that is less than the amended range.
Reductions under § 5G1.3(b) and departures ...