FILED
NOT FOR PUBLICATION MAY 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10080
Plaintiff - Appellant, D.C. No. 4:09-cr-00745-DLJ-1
v.
MEMORANDUM*
JIMMY LEE THORNTON,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, Senior District Judge, Presiding
Argued and Submitted March 13, 2014
San Francisco, California
Before: THOMAS, FISHER, and BERZON, Circuit Judges.
The United States appeals from the district court’s order reducing the prison
sentence of defendant-appellee Jimmy Lee Thornton pursuant to 18 U.S.C.
§ 3582(c)(2). We conclude that the district court lacked jurisdiction under
§ 3582(c)(2) to reduce Thornton’s sentence, and reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Thornton does not dispute that he was sentenced pursuant to a binding plea
agreement of the kind described in Federal Rule of Criminal Procedure
11(c)(1)(C). Therefore, unless Thornton’s 11(c)(1)(C) plea agreement was itself
“based on” a United States Sentencing Commission Guidelines range that has
subsequently been reduced, the district court lacked § 3582(c)(2) jurisdiction to
modify his sentence. Freeman v. United States, 131 S. Ct. 2685, 2695 (2011)
(Sotomayor, J., concurring); United States v. Austin, 676 F.3d 924, 927–28 (9th
Cir. 2012).
Here, no “Guidelines sentencing range [is] ‘evident from the agreement
itself’”; nor does the plea agreement “‘expressly use’ a Guidelines range.” See
Austin, 676 F.3d at 930. “No sentencing range appears on the face of the plea
agreement[,]” and the “terms of the agreement do not ‘make clear’ that any
particular Guidelines range was ‘employed[.]’” Id. (internal citation omitted)
(quoting Freeman, 131 S. Ct. at 2697 & 2700 (Sotomayor, J., concurring)).
Indeed, Thornton acknowledges that “the stipulated sentence was a compromise
between the mandatory minimum of five years and what could have been a
mandatory minimum of ten years” if the government had alleged Thornton’s prior
convictions. As Thornton was sentenced based on this compromise stipulation and
not on a Guidelines range that has subsequently been reduced, we conclude that the
2
district court was without § 3582(c)(2) jurisdiction to modify Thornton’s sentence.
See id.
In granting § 3582(c)(2) relief, the district court applied the analysis of
whether a “guideline range applicable to that defendant has subsequently been
lowered as a result of an amendment to the Guidelines” from United States v.
Pleasant, 704 F.3d 808, 810 (9th Cir. 2013) (quoting U.S.S.G. § 1B1.10(a)(1)), to
the separate question of whether Thornton was sentenced “based on” a guidelines
range that has been subsequently reduced. This was error, as these questions are
separate prongs of the § 3582(c)(2) analysis. Pleasant, 704 F.3d at 810–11.
“Although the ‘applicable to’ language[,]” derived from the Guidelines policy
statements, “appears to mirror the ‘based on’ language of the first prong, each
prong requires a separate analysis.” Id. Because Thornton’s plea agreement fails
the test set out in Justice Sotomayor’s Freeman concurrence, the district court
lacked jurisdiction to modify Thornton’s sentence, and there was no occasion to
move to the second prong of the analysis. See Austin, 676 F.3d at 926.
As we conclude that the district court was without jurisdiction to order this
sentencing modification, we do not address the government’s additional arguments
for reversal.
3
Accordingly, the district court’s order granting Thornton’s motion to reduce
his sentence is REVERSED and the reduced sentence is VACATED. On remand,
the district court is to reinstate the original sentence.
4