from the United States District Court for the District of
Kansas (D.C. No. 2:08-CR-20117-JWL-1)
T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public
Defender, and Carl Folsom, III, Assistant Federal Public
Defender, with him on the briefs), Office of the Federal
Public Defender, Topeka, Kansas, for Defendant-Appellant.
S. Maag, Assistant United States Attorney (Thomas E. Beall,
Acting United States Attorney, with him on the brief),
Topeka, Kansas, for Plaintiff-Appellee.
LUCERO and BACHARACH, Circuit Judges. [*]
LUCERO, Circuit Judge.
18 U.S.C. § 3582(c)(2), a district court may reduce a
defendant's term of imprisonment if it was "based on
a sentencing range that has subsequently been lowered by the
Sentencing Commission." This appeal requires us to
address the "based on" requirement of §
3582(c)(2) in the context of a Fed. R. Crim. P. 11(c)(1)(C)
Gregory Jordan was sentenced to 168 months' imprisonment
pursuant to a Rule 11(c)(1)(C) agreement that proposed a base
offense level of 31 and a Guidelines range of 135 to 168
months. The district court accepted the plea agreement,
despite a discrepancy between the parties' agreed-upon
sentencing range and the range calculated by the district
court. After both ranges were subsequently lowered by the
Sentencing Commission, Jordan moved for a reduced sentence
under § 3582(c)(2). The district court denied relief,
concluding that Jordan's sentence was not "based
on" the Guidelines and he was thus ineligible for a
sentence reduction. We hold, to the contrary, that
Jordan's sentence was "based on" the Guidelines
for purposes of § 3582(c)(2). Accordingly, he is
eligible for relief. Exercising jurisdiction under 28 U.S.C.
§ 1291, we reverse and remand.
2009, Jordan entered a Fed. R. Crim. P. 11(c)(1)(C) plea
agreement, pleading guilty to one count of conspiracy to
possess with the intent to distribute five kilograms or more
of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii), and 846, and 18 U.S.C. § 2. The agreement
proposed a Guidelines offense level of 31, for a sentencing
range of 135 to 168 months' imprisonment. The agreement
also stated that the parties were "of the belief that
the proposed sentencing range [did] not offend the now
advisory sentencing guidelines, " and that "because
[the] proposed sentence [was] sought pursuant to Fed. R.
Crim. P. 11(c)(1)(C), the parties [were] not requesting
imposition of an advisory guideline sentence."
change of plea hearing, the prosecutor affirmed that the
parties' agreed-upon offense level "fairly and
accurately represent[ed]" Jordan's particular
offense, "pursuant to a plea with acceptance of
responsibility coming into play." She further indicated
her belief that Jordan had a criminal history category of
III, resulting in a Guidelines range of 135 to 168 months.
The court accepted Jordan's guilty plea, but reserved
judgment on the plea agreement pending review of the
presentence investigation report ("PSR").
PSR, there was a notable change from the plea agreement: it
assessed a total offense level of 33, for a sentencing range
of 168 to 210 months' imprisonment. This range was
calculated based on a criminal history category of III and a
finding that Jordan had conspired to possess and distribute
fifteen kilograms of cocaine, resulting in a base offense
level of 34. The PSR then added a two-point enhancement for
possession of firearms and a three-level reduction for
acceptance of responsibility. Neither party objected to the
sentencing, the district court adopted the PSR in full, but
also accepted the parties' plea agreement. A "small
disparity" was acknowledged by the court between the
sentencing range proposed in the agreement "and what the
guidelines strictly applied would allow." The court then
imposed a sentence of 168 months' imprisonment, reasoning
that such a term was at "the low end of what the
guideline range would otherwise have been, " which it
described as "an important factor." It also noted
that the plea agreement and PSR differed as to the quantity
of cocaine used in the calculations, and it agreed with the
PSR's assessment of fifteen kilograms rather than the
agreement's apparent assessment of ten kilograms. Final
judgment was entered in October 2009.
November 1, 2014, Guidelines Amendments 782 and 788 went into
effect, retroactively lowering the base offense levels for
certain drug quantities. The base offense level for fifteen
kilograms of cocaine was reduced from 34 to 32, and the base
offense level for ten kilograms of cocaine was reduced from
32 to 30. See U.S.S.G. § 2D1.1(c)(4) & (5)
(Drug Quantity Table) (2014). Jordan subsequently filed a
motion for a sentence reduction under 18 U.S.C. §
3582(c)(2), requesting a new sentence of 135 months. That
motion was dismissed for lack of jurisdiction on the ground
that Jordan was ineligible for ...