FILED
UNITED STATES COURT OF APPEALS
JUN 06 2017
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10080
Plaintiff - Appellant, D.C. No. 4:09-cr-00745-DLJ-1
Northern District of California,
v. Oakland
JIMMY LEE THORNTON,
ORDER
Defendant - Appellee.
Before: THOMAS, Chief Judge, and FISHER and BERZON, Circuit Judges.
The disposition filed on December 27, 2016 is WITHDRAWN and replaced
by the superseding disposition filed concurrently with this order.
With that substitution, the panel has voted to deny the petition for rehearing.
Chief Judge Thomas and Judge Berzon vote to deny the petition for rehearing en
banc, and Judge Fisher so recommends.
The full court was advised of the petition for rehearing en banc and no judge
has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
Appellee’s petition for panel rehearing and petition for rehearing en banc are
DENIED.
FILED
NOT FOR PUBLICATION
JUN 06 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
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, District Judge, Presiding
Argued and Submitted March 13, 2014
San Francisco, California
Before: THOMAS, Chief Judge, and 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 ordered supplemental briefing regarding whether our en banc
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
opinion in United States v. Davis, 825 F.3d 1014 (9th Cir. 2016), affected
Thornton’s case. We conclude that Thornton is ineligible for a sentence reduction
even in light of Davis, and so reverse.
A defendant is generally eligible for a sentence reduction when he or she is
sentenced “based on a sentencing range [under the United States Sentencing
Guidelines] that has subsequently been lowered by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2). The parties agree that Thornton faced a mandatory
minimum sentence of 60 months’ imprisonment, that the calculated Guidelines
range in Thornton’s case was initially 46 to 57 months, and that subsequent
amendments to the Guidelines would have lowered the calculated range to 30-37
months. The parties dispute only whether Thornton’s sentence was actually “based
on” the calculated range.
Davis adopted the reasoning of Justice Kennedy’s plurality opinion in
Freeman v. United States, 564 U.S. 522, 534 (2011), concluding that even when a
sentence is determined by a Rule 11(c)(1)(C) agreement, that sentence is “likely”
based on the Guidelines. Davis held that “a defendant should be eligible for a
sentence reduction when one factor in a defendant’s sentence was a ‘since-rejected
Guideline.’” 825 F.3d at 1027 (emphasis added) (quoting Freeman, 564 U.S. at
530).
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Thornton’s plea agreement expressly stated that his sentence “should be
calculated pursuant to the Sentencing Guidelines,” and recognized that a “sentence
of imprisonment within the Guidelines range set forth [in the agreement]” was
reasonable. We therefore conclude that the calculated Guidelines range was a
factor in Thornton’s sentence.
Thornton is nevertheless ineligible for a sentence reduction because the
mandatory minimum sentence applicable to him displaced the calculated
Guidelines range. Although the government concedes that it did not raise this
argument before the district court, we have held that eligibility for a sentencing
reduction under 18 U.S.C. § 3582(c)(2) is a jurisdictional question. United States
v. Spears, 824 F.3d 908, 916 (9th Cir. 2016). We are therefore required to consider
the question regardless of whether the parties raised it below.
The Guidelines state that “[w]here a statutorily required minimum sentence
is greater than the maximum of the applicable guideline range, the statutorily
required minimum sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b)
(emphasis added). The policy statement applicable at the time of Thornton’s 2010
sentencing provides that a reduction is not appropriate when a mandatory
minimum displaces a Guidelines range. See 18 U.S.C. § 3582(c)(2) (requiring that
any reduction be “consistent with applicable policy statements issued by the
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Sentencing Commission.”). The relevant policy statement instructed that “a
reduction in the defendant’s term of imprisonment is not authorized under 18
U.S.C. § 3582(c)(2) and is not consistent with this policy statement if . . . an
amendment . . . does not have the effect of lowering the defendant’s applicable
guideline range because of the operation of another guideline or statutory provision
(e.g., a statutory mandatory minimum term of imprisonment).” U.S.S.G. §
1B1.10(a) cmt. n.1 (emphasis added). Here, although Thornton’s Guidelines range
would normally have been 46 to 57 months, his 60-month mandatory minimum
sentence displaced that range. Thornton is thus ineligible for a sentence reduction.
The circuits that have addressed this question have likewise concluded that
where a mandatory minimum is higher than a calculated Guidelines range, and is
binding on the district court, the mandatory minimum becomes the Guidelines
sentence, and the defendant is ineligible for § 3582(c) relief. The Ninth Circuit
also has so held, albeit in cases decided before Freeman and Davis. See United
States v. Jackson, 577 F.3d 1032, 1035–36 (9th Cir. 2009) and United States v.
Mullanix, 99 F.3d 323, 324 (9th Cir. 1996); see also United States v. Joiner, 727
F.3d 601, 606–08 (6th Cir. 2013); United States v. Robinson, 697 F.3d 443, 444
(7th Cir. 2012); United States v. McClain, 691 F.3d 774, 777–80 (6th Cir. 2012);
United States v. Glover, 686 F.3d 1203, 1206–07 (11th Cir. 2012); United States v.
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Williams, 551 F.3d 182, 185 (2d Cir. 2009).
We hold that Thornton was ineligible for a sentence reduction because of the
applicability of a statutory minimum in excess of his calculated Guidelines range.
Accordingly, the district court’s order granting Thornton’s motion to reduce his
sentence is REVERSED, and the reduced sentence is VACATED. We remand to
the district court; on remand, the district court is to reinstate the original sentence
of 96 months’ imprisonment.
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