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United States v. Jordan

United States Court of Appeals, Tenth Circuit

April 18, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
REGORY D. JORDAN, Defendant-Appellant.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 2:08-CR-20117-JWL-1)

          Daniel 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.

          Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, Acting United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

          Before LUCERO and BACHARACH, Circuit Judges. [*]

          LUCERO, Circuit Judge.

         Under 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) plea agreement.

         Defendant 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.

         I

         In 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."

         At a 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").

         In the 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 PSR.

          At 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.

         On 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 ...


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