FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 1, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-6167
(D.C. No. 5:09-CR-00089-R-1)
JASON DEANGELO BRIGGS, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
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Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
_________________________________
Defendant-Appellant Jason Deangelo Briggs appeals the district court’s denial
of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). He argues that
his sentence should be reduced because of Amendment 782 to the United States
Sentencing Guidelines, which lowered the offense levels for certain drug offenses,
even though he received a sentence below the amended guideline range. Exercising
jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
In 2009 Mr. Briggs pleaded guilty to a drug offense and a related firearm
offense pursuant to a plea agreement. He was sentenced under the 2008 version of
the Sentencing Guidelines, which yielded for the drug offense a guideline range of
135 to 168 months. The district court granted a downward variance and imposed an
84-month term on that offense and a consecutive 60-month term on the firearm
offense for a total sentence of 144 months.
In June 2015 Mr. Briggs, proceeding pro se, moved for a sentence reduction
based on Amendment 782, which became effective in November 2014. He argued
that because his original sentence was 51 months below the low end of the guideline
range applicable when he was sentenced, the district court had discretion to reduce
his sentence to 51 months below the amended guideline range. The government
responded by arguing that Mr. Briggs was ineligible for a sentence reduction under
§ 3582(c)(2) because he received a sentence that was below the amended guideline
range and did not fall within the exception for defendants who provided substantial
assistance to authorities. See U.S.S.G. § 1B1.10(b)(2). The district court denied the
motion without providing a reason, and this appeal followed.
On appeal Mr. Briggs argues that retrospective application of the current
version of U.S.S.G. § 1B1.10(b)(2) to his case violates the Ex Post Facto Clause.
U.S. Const., art. I, § 9, cl. 3. We disagree.
We review de novo the scope of a district court’s authority under § 3582(c)(2)
to resentence a defendant. United States v. Gay, 771 F.3d 681, 685 (10th Cir. 2014);
see also United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008) (“We review
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de novo the district court’s interpretation of a statute or the sentencing guidelines.”
(internal quotation marks omitted)). We also review de novo whether application of
a sentencing guideline violates the Ex Post Facto Clause. United States v. Weiss,
630 F.3d 1263, 1275 (10th Cir. 2010). Where, as here, a defendant does not raise an
ex post facto argument before the district court, we review for plain error. See
United States v. Sullivan, 255 F.3d 1256, 1258 (10th Cir. 2001). “To constitute plain
error, the error must have been both obvious and substantial.” Id. (internal quotation
marks omitted).
Mr. Briggs’s argument is premised on Amendments 759 and 782 to the
Sentencing Guidelines, which were implemented after he was sentenced in 2009.
Amendment 759, which took effect in November 2011, altered § 1B1.10 by limiting
who was eligible for a sentence reduction based on subsequent amendments to the
Sentencing Guidelines. Before the amendment, a defendant could be eligible for a
sentence reduction even if he or she received an original sentence that was below the
amended guideline range:
If the original term of imprisonment imposed was less than the term of
imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing, a reduction comparably less than
the amended guideline range determined under subdivision (1) of this
subsection may be appropriate. However, if the original term of
imprisonment constituted a non-guideline sentence . . . a further
reduction generally would not be appropriate.
U.S.S.G. § 1B1.10(b)(2)(B) (Nov. 2008). This exception applied only to “covered
amendments” then listed in the Sentencing Guidelines. Id. § 1B1.10(c). Of course
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that list did not include Amendment 782 as it did not take effect until three years
later.
As amended by Amendment 759, § 1B1.10 allows reduced sentences for a
defendant who received an original sentence that was below the amended guideline
range only if he or she provided substantial assistance to authorities:
If the term of imprisonment imposed was less than the term of
imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing pursuant to a government motion to
reflect the defendant’s substantial assistance to authorities, a reduction
comparably less than the amended guideline range determined under
subdivision (1) of this subsection may be appropriate.
U.S.S.G. § 1B1.10(b)(2)(B) (Nov. 2014). This exception also applies only to
“covered amendments” listed in the Sentencing Guidelines. Id. § 1B1.10(d). That
list includes Amendment 782.
Amendment 782 took effect in November 2014, reducing by two the base
offense level for certain drug offenses, including Mr. Briggs’s.
An ex post facto violation occurs when “a given change in law presents a
sufficient risk of increasing the measure of punishment attached to the covered
crimes.” Peugh v. United States, 133 S. Ct. 2072, 2082 (2013) (internal quotation
marks omitted); see also Weiss, 630 F.3d at 1276 (“At sentencing, an ex post facto
violation occurs when the district court applies a guideline to an event occurring
before its enactment, and the application of that guideline disadvantages the
defendant by . . . increasing the punishment for the crime.” (internal quotation marks
omitted)). We conclude Amendments 759 and 782, as applied to Mr. Briggs’s
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sentence, do not violate the Ex Post Facto Clause because they do not – either
individually or in combination – retroactively increase the punishment for his
offenses.
Moreover, applying the pre-Amendment 759 version of § 1B1.10 would not
help Mr. Briggs because it never encompassed Amendment 782 for the obvious
reason that it did not yet exist. When § 1B1.10 was amended in 2011, all later
reductions in the Sentencing Guidelines were subject to that version, not to any
previous version. See Weiss, 630 F.3d at 1275 (“Under the one-book rule, the
Guidelines Manual in effect on a particular date shall be applied in its entirety.”
(internal brackets and quotation marks omitted)); see also U.S.S.G. § 1B1.11(b)(2)
(“The court shall not apply . . . one guideline section from one edition of the
Guidelines Manual and another guideline section from a different edition of the
Guidelines Manual.”).
In United States v. Kurtz, --- F.3d ---, 2016 WL 1212066 (10th Cir. Mar. 29,
2016), published after briefing was completed in this case, this court rejected the
legal theories advanced by Mr. Green regarding these amendments. Other circuits
have also concluded that applying Amendment 759 as the district court did is not an
ex post facto violation. See, e.g., United States v. Waters, 771 F.3d 679, 681 (9th
Cir. 2014); United States v. Diggs, 768 F.3d 643, 645-46 (7th Cir. 2014); United
States v. Colon, 707 F.3d 1255, 1258-59 (11th Cir. 2013).
We discern no error, much less plain error.
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The district court’s order is affirmed.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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