United States v. White

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 2, 2015
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 15-3036
(D.C. No. 6:06-CR-10186-MLB-1)
JOSEPH N. WHITE, (D. Kan.)

Defendant - Appellant.
_________________________________

ORDER AND JUDGMENT *
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Before KELLY, LUCERO, and McHUGH, Circuit Judges.
_________________________________

Joseph White appeals the district court’s denial of his motion for reduction of

sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

White was indicted on numerous drug and firearms charges in August 2006.

He entered into a plea agreement under which he pled guilty to possessing a firearm

in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c) in

exchange for dismissal of the remaining counts. A Presentence Investigation Report

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.
App. P. 32.1 and 10th Cir. R. 32.1.
determined that White’s Guidelines range was the mandatory minimum of 60 months

required by § 924(c). The district court, concerned that a 60-month sentence was

insufficient, informed the parties prior to sentencing that it was considering an

upward departure. It requested that the Probation Office prepare a report detailing

the sentences that would have been available had White pled guilty to other charges

contained in the indictment.

According to the Probation Office, White would have been subject to a

Guidelines range of 70 to 87 months for count 4 of the indictment, possession with

intent to distribute cocaine base within 1,000 feet of a school. The district court

imposed a sentence of 147 months, which it calculated by adding the mandatory

minimum of 60 months to a hypothetical 87-month sentence for count 4.

In January 2015, White moved for a reduction of sentence pursuant to 18

U.S.C. § 3582(c)(2). The district court denied White’s motion. White timely

appealed.

We review a district court’s denial of a motion for reduction of sentence under

§ 3582(c)(2) for abuse of discretion. United States v. Sharkey, 543 F.3d 1236, 1238

(10th Cir. 2008). In doing so, we review its interpretation of a statute or the

Guidelines de novo. Id.

Under § 3582(c)(2), a district court may reduce the sentence “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.” Id. White argues

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that because the district court calculated the extent of his upward departure using the

Guidelines range for possessing with intent to distribute cocaine base, his sentence

was “based on” a Guidelines range subsequently lowered by Guidelines Amendment

782. See U.S.S.G. Manual supp. app. C., amend. 782 (2014) (altering the drug

quantity tables for cocaine base). He contends the district court failed to accord

proper weight to the Supreme Court’s opinion in Freeman v. United States, 131 S. Ct.

2685 (2011) (plurality opinion), which held that a sentence reached through a Fed. R.

Crim. P. 11(c)(1)(C) plea agreement can be “based on” the Guidelines. Freeman, 131

S. Ct. at 2690.

White’s arguments are foreclosed by our opinion in one of his prior appeals,

United States v. White, 765 F.3d 1240 (2014). In that decision, we rejected an

identical set of arguments advanced by White with respect to Guidelines Amendment

750. See White, 765 F.3d at 1246. We explained that “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.” Id.

(quotations omitted). Because, under this definition, White’s sentence was “based on

the unchanged mandatory 60-month figure that accompanied his only crime of

conviction,” we concluded he was ineligible for a sentence reduction. Id. We also

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held that Freeman did not impact our prior “‘based on’ jurisprudence.” Id. at 1249.

III

AFFIRMED.

Entered for the Court

Carlos F. Lucero
Circuit Judge

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