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.
A. Brown, Assistant United States Attorney (Barry R. Grissom,
United States Attorney, with him on the brief), Topeka,
Kansas, for Plaintiff-Appellee.
HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.
SEYMOUR, Circuit Judge.
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.
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
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.
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
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