FILED
United States Court of Appeals
Tenth Circuit
February 22, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 09-3006
TERRY L. CORBER,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D. Ct. No. 5:04-CR-40003-SAC-01)
Kirk C. Redmond, Assistant Federal Public Defender (Cyd Gilman, Federal
Public Defender, with him on the brief), Office of the Federal Public Defender for
the District of Kansas, Topeka, Kansas, appearing for Appellant.
James A. Brown, Assistant United States Attorney (Marietta Parker, Acting
United States Attorney, with him on the brief), Office of the United States
Attorney for the District of Kansas, Topeka, Kansas, appearing for Appellee.
Before TACHA, HOLLOWAY, and GORSUCH, Circuit Judges.
TACHA, Circuit Judge.
Defendant-appellant Terry L. Corber appeals from the district court’s
dismissal of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). The
district court reasoned that it lacked authority to grant a sentence reduction
because Mr. Corber’s sentence was based on the career-offender provision of the
United States Sentencing Guidelines, see U.S.S.G. § 4B1.1, rather than on the
provision governing crack cocaine offenses, see § 2D1.1(c). We have jurisdiction
under 28 U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
Mr. Corber was convicted in late 2004 of distributing 8.59 grams of cocaine
base in violation of 21 U.S.C. § 841(a)(1). The presentence report (“PSR”)
calculated a base offense level of 26 under § 2D1.1(c)(7) of the 2004 United
States Sentencing Manual (“U.S.S.G.” or “Guidelines”) and determined Mr.
Corber’s criminal history category was VI. This produced an advisory Guidelines
range of 120–150 months’ imprisonment. Mr. Corber had three prior convictions
for burglary, however, which triggered application of U.S.S.G. § 4B1.1, the
career-offender provision. Under that section, Mr. Corber’s base offense level
was 34, which resulted in a Guidelines range of 262–327 months.
The district court sentenced Mr. Corber to 136 months’ imprisonment
pursuant to a downward variance, reasoning that such a term was sufficient, but
not greater than necessary, to meet the sentencing purposes set forth in 18 U.S.C.
§ 3553(a). In the court’s written statement of reasons, 1 dated April 13, 2005, it
1
The district court heard arguments at the sentencing hearing and then took
the matter under advisement. The court later sentenced Mr. Corber and set forth
(continued...)
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stated that “there are other considerations unique to this case that impel tailoring
a sentence below the career offender guideline range.” The court noted that two
of Mr. Corber’s burglaries did not involve violence or injury to others; all three of
the burglaries were committed before he was twenty-five years old and the last
was committed seven years before the instant offense; none involved substantial
property loss; and this was Mr. Corber’s first drug conviction. In addition, the
other two defendants in the case were Mr. Corber’s father and uncle, and they had
received much shorter sentences even though they appeared to have been more
involved in drug trafficking. The district court concluded:
After balancing all these considerations, the court finds that a
sentence of 136 months which is below the guideline range required
by the career offender provisions but which falls in the upper half of
the guideline range established by giving full weight to the
defendant’s criminal history (offense level of 26 and criminal history
category of six) would be sufficient but not greater than necessary to
meet the different purposes of sentencing set forth in 18 U.S.C.
§ 3553(a)(2).
On November 1, 2007, the United States Sentencing Commission
promulgated Amendment 706, which provides for a two-level reduction in the
base offense level under U.S.S.G. § 2D1.1(c) for offenses involving cocaine base.
United States v. Rhodes, 549 F.3d 833, 835 (10th Cir. 2008). Amendment 706
was made retroactive on March 3, 2008. See id. Mr. Corber subsequently filed
1
(...continued)
its rationale in the written statement of reasons. The sentencing transcript is not
part of the record on appeal.
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his § 3582(c)(2) motion for sentence reduction, which the district court dismissed.
Specifically, the court stated that it did not have the authority under § 3582(c)(2)
to reduce Mr. Corber’s sentence because his sentence was not “based on”
U.S.S.G. § 2D1.1:
In the present case, the court did not issue a sentence “based on”
§ 2D1.1, but rather issued a non-guideline sentence based on the
career offender provision. The court varied from the guideline range
of the career offender provision by reducing the sentence after
considering other mitigating factors under § 3553(a). The court’s
sentence was nevertheless based on the guidelines range first
determined from the career offender provision and not on the
guideline range applicable under § 2D1.1.
Following our recent decision in United States v. Darton, – F.3d – (10th
Cir. 2010), we agree.
II. DISCUSSION
A district court’s authority to modify a previously imposed sentence is
limited by § 3582(c), and in this case, § 3582(c)(2). Under § 3582(c)(2):
[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. [§]
994(o), 2 . . . the court may reduce the term of imprisonment, . . . if
such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.
In Darton, we explained that the applicable policy statement found at
U.S.S.G. § 1B1.10(a)(2)(B) informs our understanding of the meaning of the
2
The Sentencing Commission promulgated Amendment 706 pursuant to 28
U.S.C. § 994(o). Rhodes, 549 F.3d at 838 n.3.
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phrase “based on a sentencing range that has subsequently been lowered [by
Amendment 706].” See id. at –. Under the policy statement, a sentence reduction
is not authorized if the amendment at issue “does not have the effect of lowering
the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
Although § 3582(c)(2) and § 1B1.10(a)(2)(B) appear to impose two limitations on
a district court’s authority to reduce a sentence—i.e., the defendant’s sentence
must be “based on a sentencing range that has subsequently been lowered” by an
amendment and the amendment must “lower[] the defendant’s applicable
guideline range”—these limitations are, in fact, “‘identical’ and ‘convey[] the
same meaning.’” Darton, – F.3d at – (quoting United States v. Dryden, 563 F.3d
1168, 1170–71 (10th Cir. 2009)). Thus, we explained in Darton that “a sentence
is ‘based on’ the § 2D1.1 sentencing range when § 2D1.1 produces the
defendant’s ‘applicable guideline range.’” Id. at –.
In Mr. Corber’s case, then, we must determine whether his “applicable
guideline range” (and, accordingly, the range upon which his sentence is “based”)
is the range produced through application of the § 4B1.1 career-offender
provision or the range produced through application of § 2D1.1, which is the
range to which the court ultimately varied in imposing Mr. Corber’s particular
sentence. This is a question of law that we review de novo. Id. at –.
Again, Darton guides our analysis. In that case, the defendant qualified as
a career offender under § 4B1.1, but the district court departed downward from
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the career-offender range and instead imposed a sentence within the range
produced under § 2D1.1 because the defendant’s career-offender status
significantly overrepresented the seriousness of his criminal history. See
§§ 4A1.3, 5K2.0; Darton, – F.3d at –. We agreed with the district court that it
lacked the authority under § 3582(c)(2) to reduce the defendant’s sentence in such
a case, holding that “‘the applicable guideline range’ and the range upon which a
sentence is ‘based’ is, as a matter of law, 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.” Darton, – F.3d at –. Because that range was the one produced under
the career-offender guideline, which Amendment 706 does not affect, see United
States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008), the district court had no
authority to reduce the sentence. Darton, – F.3d at –.
Although Darton is distinguishable because the defendant in that case was
sentenced to a below-guideline sentence through a departure, rather than a
variance, the rationale employed by the Darton court applies with equal force in
this case. We began in Darton by recognizing that the guidelines categorically
define a departure as “a sentence outside the applicable guideline range.” See id.
at –. Thus, “a departure exists only apart from the applicable guideline range;
there is no such thing as a departure to the applicable guideline range.” Id. at –.
Although the guidelines do not define “variance,” our post-Booker jurisprudence
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has repeatedly characterized a variance in equivalent terms. See, e.g., United
States v. Villa-Vazquez, 536 F.3d 1189, 1197 (10th Cir. 2008) (defining
“applicable guideline range” as the range calculated prior to all departures and
variances); United States v. Landers, 564 F.3d 1217, 1224 (10th Cir. 2009)
(affirming district court’s “variance from the . . . applicable guideline range”);
United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (reviewing
the district court’s calculation of the “applicable Guidelines range and the
reasonableness of the downward variance”); United States v. Trotter, 518 F.3d
773, 774 (10th Cir. 2008) (noting the district court sentenced the defendant “at
the bottom of the applicable Guidelines range, [because] the § 3553(a) factors did
not warrant a variance.”). Accordingly, like a departure, a variance is a sentence
outside the “applicable guideline range.”
The First Circuit likewise reached this conclusion in United States v.
Carabello, 552 F.3d 6 (1st Cir. 2008). There, the court held that a defendant who
qualified as a career offender but who received a downward variance from the
career-offender sentencing range was ineligible for a sentence reduction in part
because his applicable guideline range had not been lowered by Amendment 706:
[E]ven though the defendant received a non-guideline sentence, that
had no effect on the sentencing range applicable in his case (i.e., the
sentencing range contemplated by section 3582(c)). Under an
advisory guidelines system, a variance is granted in the sentencing
court’s discretion after the court has established an appropriately
calculated guideline sentencing range. It is that sentencing range
that must be lowered by an amendment in order to engage the gears
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of section 3582(c)(2).
552 F.3d at 11 (internal citation omitted). Cf. United States v. Tolliver, 570 F.3d
1062, 1066 (8th Cir. 2009) (same, but with respect to a departure).
Mr. Corber urges us to follow the Second Circuit’s decision in United
States v. McGee, 553 F.3d 225 (2d Cir. 2009), which held that the district court
was authorized to reduce the sentence of a defendant who qualified as a career
offender but was ultimately sentenced within the § 2D1.1 range as a result of a
downward departure. As we explained in Darton, however, McGee is
unpersuasive because it fails to address the foundation of our analysis:
§ 1B1.10(a)(2)(B)’s instruction that a sentence reduction is authorized only when
the amendment at issue lowers the defendant’s “applicable guideline range,” and
our court’s definition of a variance as a sentence outside the “applicable guideline
range.” See Darton, – F.3d at –. Rather, McGee focuses primarily on the
guidelines’ policy statement governing the extent of an authorized reduction—not
the sentencing court’s authority to reduce a sentence in the first place. See
McGee, 553 F.3d at 227–28 (interpreting § 1B1.10(b)(2)(B)).
Finally, we explained in Darton that a district court’s decision to exercise
its discretion and impose a variance or departure does not render inapplicable the
career-offender guideline or any other guideline provision pertinent to that
particular defendant’s offense level and criminal history category. Darton, – F.3d
at –. Instead, under our sentencing framework, a district court must first calculate
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the “applicable guideline range.” Id. at –. To do so, the court must apply “each
guideline provision relevant to the particular defendant’s offense and criminal
history category, including the career-offender provision of § 4B1.1, and then
determin[e] the range provided by the sentencing table in Chapter 5, Part A of the
guidelines.” Id. at –. Only then may the court determine the propriety and extent
of a departure or variance; indeed, a court’s failure first to properly calculate the
“applicable guideline range”—including whether the defendant qualifies as a
career offender—is grounds for resentencing. Id. at –. “Thus, the fact that a
sentencing court ultimately sentences a defendant to a below-guideline range does
not mean that the sentence necessarily falls within the ‘applicable guideline
range;’ rather, in such a case, the court has simply selected an alternative
sentence determined by the court to be better tailored to the specific
circumstances of that particular defendant.” Id. at –.
We therefore extend our holding in Darton to variances as well as
departures. In short, for purposes of a sentence modification under § 3582(c)(2),
the “applicable guideline range” and the range upon which a sentence is “based”
is, as a matter of law, 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 variances. Cf. id. at –. In Mr.
Corber’s case, the applicable guideline range is the range produced under the
career-offender guideline. Because Amendment 706 does not lower this
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sentencing range, the district court was not authorized to reduce his sentence
under § 3582(c)(2).
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s dismissal of
Mr. Corber’s motion for a sentence modification.
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