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United States v. Gilmore

United States Court of Appeals, Tenth Circuit

November 15, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JEREMY GILMORE, Defendant-Appellant.

          Appeal from the United States District Court for the District of Kansas (D.C. No. 2:07-CR-20164-JWL-5)

          Branden A. Bell, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with him on the briefs), Topeka, Kansas, for Defendant-Appellant.

          James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

          Before HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.

          SEYMOUR, Circuit Judge.

          The district court denied Jeremy Gilmore's motion to reduce his sentence in accordance with a retroactive sentencing amendment because his term of imprisonment was not "based on" a guidelines sentencing range, as is required by 18 U.S.C. § 3582(c)(2). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


         In May 2009, Mr. Gilmore was convicted of conspiracy to distribute and possess with intent to distribute methamphetamine. Due to his two prior drug felonies, the district court sentenced him to a mandatory life sentence. After we affirmed his conviction, Mr. Gilmore filed a motion to vacate under 28 U.S.C. §2255, claiming his trial counsel was ineffective. The district court granted Mr. Gilmore's motion, but instead of setting aside the conviction it ordered the parties to meet and confer regarding an appropriate remedy. At a status conference, the two sides informed the court they had agreed that a sentence reduction to 168 months would be fair. Mr. Gilmore's attorney gave the following explanation for how the two sides reached this total:

And the way that we got there, at least I got there, was that Mr. Gilmore's original base offense level was 34; he was then given a two-point enhancement for obstruction and another two-point enhancement for a firearm enhancement. I think if Mr. Gilmore had had appropriate counsel that those enhancements would not have stayed on the presentence report, and I think the Court was well aware of the type of representation Mr. Gilmore had at his sentencing.
. . . .
. . . Which would have left him at a base level of 34. I think that had Mr. Gilmore had competent representation that an attorney would have walked him in to cooperate with the government very early in the process, so I think that he would have gotten another two-level reduction for acceptance. . . . [T]he government agrees that we don't know that that third point would necessarily have been available, or it might just be a bridge too far for us. That would leave us at a Base Offense Level 32 and a Criminal History Category IV, which puts us at a guideline range of 168 to 210 months, the low end of that range being 168 months. And that's where at least I reached the conclusion that that was an adequate remedy for the lack of competent counsel that Mr. Gilmore had in this case.

Aplt. App. at 44-45.

         The two parties reduced their agreement to writing and submitted it to the district court for its approval. The agreement was intended "to achieve a result that may have occurred had the defendant not received ineffective assistance of counsel." Id. at 51. The sentencing agreement provided that Mr. Gilmore would admit to knowingly committing one count of conspiracy-the crime for which he was initially convicted-in exchange for the government's agreement, among other things, not to file any additional charges against Mr. Gilmore and its proposal of 168 months as the appropriate disposition of the case. While the sentencing agreement recognized that it "d[id] not offend the now advisory guidelines, " it did not expressly reference any particular guidelines range. Id. at 51. The court accepted the parties' agreement, agreed to be bound by it, and resentenced Mr. Gilmore to 168 months of imprisonment.

         In July 2014, almost two years later, Mr. Gilmore filed a motion, pursuant to 18 U.S.C. § 3582(c)(2), to reduce his sentence in accordance with Amendment 782. Amendment 782 was an amendment to the sentencing guidelines that was made retroactive by the Sentencing Commission in 2014. It reduced by two levels the offense levels assigned to the quantities that trigger the statutory mandatory minimum penalties in U.S.S.G. § 2D1.1. Sentencing Guidelines for the United States Courts, 79 Fed. Reg. 44, 973 (Aug. 1, 2014). When the government and Mr. Gilmore recalculated his sentence, they had used § 2D1.1 to determine his base offense level to be 32. Mr. Gilmore was therefore seeking a reduction to a base offense level of 30. The drop in his base offense level would ...

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