Appeal from the United States District Court for the District of Kansas. (D.C. No. 6:06-CR-10186-MLB-1).
David E. Johnson, Research and Writing Specialist (Jill M. Wichlens, Assistant Federal Public Defender; Warren R. Williamson, Interim Federal Public Defender with him on the supplemental brief) Denver, Colorado, for Defendant-Appellant. Joseph N. White, Pro se on the brief.
James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief) Topeka, Kansas, for Plaintiff-Appellee.
Before HARTZ, BALDOCK, and EBEL, Circuit Judges. EBEL, Circuit Judge. HARTZ, Circuit Judge, concurring.
EBEL, Circuit Judge.
This appeal requires us to weigh in once again on a district court's authority to grant a sentence reduction under 18 U.S.C. § 3582(c)(2). Although Defendant Joseph White was initially charged with 16 drug- and gun-related counts, the government agreed to drop all remaining counts against him in exchange for his pleading guilty to possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Mr. White was then sentenced to a term of imprisonment outside of the advisory guideline range: after the sentencing court imposed the mandatory 60-month sentence for all § 924(c) convictions, it exercised its discretion and departed upward by an additional 87 months to account for the drug trafficking conduct that gave rise to Mr. White's § 924(c) conviction but which had been dismissed pursuant to his plea agreement. The 87-month figure was computed under the old crack cocaine guidelines as if Mr. White had in fact been convicted of possessing 21.35 grams of crack.
When the Sentencing Commission retroactively lowered the crack cocaine guidelines in response to the Fair Sentencing Act of 2010, Mr. White filed a pro se § 3582(c)(2) motion and requested that the district court reduce his 87-month departure to accord with the new crack cocaine guidelines. The rejected crack guidelines undoubtedly played a role in his originally imposed sentence, Mr. White argued, so he too should be eligible for a sentence reduction to correct that disparity. The district court disagreed. Recognizing that the Sentencing Commission has enacted a policy statement that expressly precludes courts from reducing a departure portion of an originally imposed sentence, the court denied Mr. White's sentence modification motion in a one-paragraph order.
Mr. White now appeals, advancing a full-fledged attack on that policy statement and its corresponding commentary. According to Mr. White, the policy statement cannot mean what is says, either because it is inconsistent with the plain language § 3582(c)(2), or because it produces an absurd result, or if consistent and rational, because it violates the Constitution's nondelegation and separation of powers principles.
For reasons explained more fully below, however, we need not consider these next-level arguments because Mr. White has not shown, as he must, that he " has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(2) (emphasis added). It is well-settled in this circuit, and elsewhere, that the range upon which a sentence is " based" is the range produced under the guidelines' sentencing table after a correct determination of the defendant's total offense level and criminal history category but prior to any discretionary departures. Although Mr. White asserts that Freeman v. United States, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), requires us to reconsider our prior interpretation of § 3582(c)(2)'s " based on" clause, we explain herein why the pre-Freeman bar on reducing discretionary departures persists post-Freeman. While it therefore follows that the district court did not err in holding that Mr. White was ineligible for a sentence reduction under § 3582(c)(2), his motion should have been dismissed, not on the merits, but on jurisdictional grounds. Exercising jurisdiction under 28 U.S.C. § 1291, we thus vacate the district court's order denying Mr. White's motion and remand with instructions to dismiss for lack of jurisdiction.
In August 2006, Mr. White was indicted on sixteen drug- and gun-related counts, including possession with intent to distribute crack cocaine within 1,000 feet of a school, in violation of 21 U.S.C. § § 841, 860 (Count 4), and possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 12). In exchange for Mr. White pleading guilty to the gun possession charge (Count 12), the government agreed to dismiss all remaining counts against him, including the predicate drug trafficking offense that gave rise to the gun charge for which he was admitting guilt. In anticipation of sentencing, the United State Probation Office prepared a Presentence Investigation Report (" PSR" ) instructing that Mr. White's advisory guideline sentence was the statutorily-required 60-month mandatory minimum sentence under U.S.S.G. § 2K2.4.
Although neither party objected to the PSR, the sentencing court informed the parties by letter that it was contemplating an upward departure under § 5K2.21 in order to account for Mr. White's " Dismissed and Uncharged Conduct." Pointing to the commentary accompanying the § 924(c) guideline stating that it is " unusual" for an individual to be convicted of § 924(c) without also being convicted of the underlying drug trafficking offense, the sentencing court suggested that an upward departure was warranted on the
theory that " the Sentencing Commission would view this case as 'unusual' because the parties have agreed to allow defendant to plead guilty to the 924(c) count alone, rather than in addition to one or more of the underlying drug counts." Id. Mr. White objected to any such departure.
Following a hearing on the matter, the sentencing court informed the parties that it was adhering to its intent to depart upward from the mandatory 60-month advisory guideline sentence called for in the PSR. As the court's sentencing decision later explained,
In an effort to formulate a sentence which will be acceptable under the advisory guidelines and the § 3553(a) factors, the court requested the probation officer to prepare a sentence calculation which takes into consideration the offense of conviction (count 12, possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) which carries a statutory minimum and advisory guideline sentence of 60 months) plus the " underlying offense" charged in count 4, possession with ...