Case: 17-50806 Document: 00515759100 Page: 1 Date Filed: 02/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 26, 2021
No. 17-50806 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Israel Lopez, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-2332-1
Before Owen, Chief Judge, and Wiener and Dennis, Circuit Judges.
Priscilla R. Owen, Chief Judge:
Israel Lopez, Jr., pleaded guilty to one count of conspiracy to possess
with intent to distribute more than five kilograms of cocaine and one count
of conspiracy to possess with intent to distribute more than fifty kilograms of
marijuana. After the district court imposed concurrent sentences of 210
months on each count, an amendment to the Sentencing Guidelines
retroactively lowered the base offense levels for Lopez’s drug offenses by two
levels. The district court reduced Lopez’s sentence on the cocaine count,
but it did not reduce his sentence on the marijuana count. Lopez appeals,
arguing that he was eligible for a reduction on the marijuana count.
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Under 18 U.S.C. § 3582(c)(2), an inmate is eligible for a reduction in
his term of imprisonment if the inmate “has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered” and “if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” 1 The question presented
in this case is complex: whether Lopez is eligible for a reduction under this
statute when the district court sentenced him to 210 months’ confinement
on each of two drug offenses, running concurrently, after he received a
downward departure from his initial sentencing range for providing
substantial assistance to the government, given that the base drug offense
levels for each count has retroactively been reduced, and given further that
one of those counts is subject to a statutory maximum term of imprisonment.
Because Lopez’s “applicable guideline range” is distinct from his “guideline
sentence,” he is eligible for a sentence reduction. We therefore vacate the
judgment of the district court and remand the case for re-sentencing
consistent with this opinion.
I
The Presentence Investigation Report (PSR) grouped the two counts
in accordance with section 3D1.2 of the United States Sentencing Guidelines
(Guidelines).2 The PSR stated that Lopez was responsible for 11.45
kilograms of cocaine and 104.56 kilograms of marijuana, resulting in a base
offense level of 32.3 Lopez received a two-level enhancement because he
committed the offense as part of a criminal livelihood, and a four-level
1
18 U.S.C. § 3582(c)(2).
2
U.S. Sent’g Guidelines Manual §§ 3D1.2(b), (d) (U.S. Sent’g
Comm’n 2010) [hereinafter USSG].
3
Id. § 2D1.1(a)(5).
2
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enhancement for his aggravating role in the offense. 4 Those enhancements
resulted in an adjusted offense level of 38.
The PSR also stated that Lopez qualified as a career offender under
section 4B1.1 of the Guidelines, which would result in an offense level of 37. 5
However, because the adjusted offense level from the drug quantity finding
(38) was higher than the offense level from the career offender determination
(37), the PSR used the drug quantity offense level. After a three-level
reduction for acceptance of responsibility,6 Lopez’s total offense level was
35. Because Lopez was a career offender, his criminal history category was
Category VI.7 The total offense level of 35 combined with his Category VI
criminal history produced a guideline range of 292 to 365 months’
imprisonment.8
Under section 5G1.1(a) of the Guidelines, if a “statutorily authorized
maximum sentence is less than the minimum of the applicable guideline
range, the statutorily authorized maximum sentence shall be the guideline
sentence.”9 Accordingly, because the statutory maximum sentence for
Lopez’s marijuana count was only twenty years,10 his “guideline sentence”
for that count was 240 months.11
Prior to sentencing, the Government moved for a three-level
4
Id. § 3B1.1(a).
5
Id. § 4B1.1.
6
Id. § 3E1.1.
7
Id. § 4B1.1(b).
8
Id. at ch. 5, pt. A, sentencing tbl.
9
Id. § 5G1.1(a).
10
21 U.S.C. § 841(b)(1)(C).
11
USSG § 5G1.1(a).
3
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downward departure pursuant to section 5K1.1 of the Guidelines. That
provision provides that “[u]pon motion of the government stating that the
defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense, the court may
depart from the [G]uidelines.”12 The departure would place Lopez at a level
32 with a possible guideline range of 210 to 262 months. At sentencing, the
district court adopted the PSR, including the Guidelines calculations,
without change. The court implicitly granted the Government’s motion for
downward departure, creating new hypothetical sentencing ranges of 210 to
262 months on the cocaine count and 210 to 240 months on the marijuana
count. The district court imposed concurrent sentences of 210 months on
each count. The court’s Statement of Reasons indicated that its sentence
departed from the advisory guideline range because of the Government’s
5K1.1 motion for downward departure.
More than three years after the court sentenced Lopez, Amendment
782 to the Guidelines retroactively lowered the base offense levels for most
drug offenses by two levels.13 The district court appointed the Federal Public
Defender to represent prisoners, including Lopez, who were potentially
eligible for a sentence reduction based on the amendment.
A probation officer prepared revised Guidelines calculations.
Subtracting two levels from Lopez’s original adjusted offense level of 38, the
officer determined that Lopez’s revised adjusted offense level for the drug
quantities would be 36, while his career offender offense level would remain
at 37 and thus control. The officer determined that, with the three-level
12
Id. § 5K1.1.
13
U.S. Sent’g Guidelines Manual supp. app. C, amend. 782, 788 (U.S.
Sent’g Comm’n 2014).
4
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reduction for acceptance of responsibility, Lopez’s new total offense level
was 34. In light of Lopez’s revised total offense level of 34, the officer
determined that Lopez’s revised guideline range was 262 to 327 months. 14
But because the statutory maximum sentence for the marijuana count was
only twenty years,15 the “guideline sentence” for that count continued to be
240 months.16 The officer found that Lopez’s original 210-month sentences
represented a 28.09% decrease from the original guideline range of 292 to 365
months on the cocaine count and a 12.5% decrease from the original 240-
month “guideline range” on the marijuana count. So, the officer determined
that a sentence of 188 months represented a “proportionate” sentence with
a 28.09% reduction from the “new applicable range” for the cocaine count
and that a sentence of 210 months represented a “proportionate” sentence
with a 12.5% reduction from the “new applicable guideline range” for the
marijuana count.
The Federal Public Defender and the Government submitted a joint
Agreed Order Amending Judgment, which asked the district court to
sentence Lopez to 188 months on each count. Instead, the district court
reduced Lopez’s sentence on the cocaine count to 188 months but did not
reduce his original 210-month sentence on the marijuana count. For the
marijuana count, the district court stated, the original and amended
“guideline range” was 240 months, which would make Lopez ineligible for a
sentence reduction on that count.17 Lopez appeals, arguing that the district
14
USSG ch. 5, pt. A, sentencing tbl.
15
21 U.S.C. § 841(b)(1)(C).
16
See USSG § 5G1.1(a).
17
See id. § 1B1.10(a)(2)(B) (“A reduction . . . is not authorized . . . if . . . an
amendment . . . does not have the effect of lowering the defendant’s applicable guideline
range.”).
5
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court incorrectly held that the guideline range was not reduced on the
marijuana count. To lessen confusion regarding many similar terms, we
adopt the following definitions:
• “Initial guideline range” refers to Lopez’s first guideline range at
his original sentencing, based on his offense level and criminal
history category, before the application of section 5G1.1 or section
5K1.1. Lopez’s “initial guideline range” was 292 to 365 months.
• “Guideline sentence” refers to Lopez’s guideline calculation after
the operation of section 5G1.1, which says that Lopez’s statutory
maximum supersedes his initial guideline range because his
statutory maximum (240 months) is less than the minimum of the
initial guideline range (292 to 365 months). Lopez’s “guideline
sentence” is 240 months.
• The “guideline range applicable” to Lopez, as used in section
1B1.10, is disputed.
o Lopez contends that the “guideline range applicable” to
him is the same as his “initial guideline range”—292 to 365
months.
o The Government contends that the “guideline range
applicable” to Lopez is his “guideline sentence”—240
months.
• “Revised guideline range” refers to Lopez’s guideline range after
Amendment 782, which reduced the quantity-determined base
offense levels in the drug-trafficking guideline by two levels.
Lopez’s “revised guideline range” is 262 to 327 months.
Lopez argues that the district court erred in holding that his guideline
range for the marijuana count did not change, thus making him ineligible for
an 18 U.S.C. § 3582 reduction on that count. Section 3582(c)(2) permits the
discretionary modification of a defendant’s sentence “in 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
6
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Commission pursuant to 28 U.S.C. [§] 994(o),” so long as the “reduction is
consistent with applicable policy statements.”18 If the court determines that
§ 3582 applies,19 we conduct a two-step inquiry when considering a
§ 3582(c)(2) motion.20 First, we must determine whether a reduction is
consistent with section 1B1.10 of the Guidelines by determining the
defendant’s eligibility for a reduction and the extent of the authorized
reduction.21 Under that section, a defendant is eligible for a reduction only if
an amendment lowered the “guideline range applicable.”22 The 2018
Guidelines define this term as “the guideline range that corresponds to the
offense level and criminal history category determined pursuant to
[section ]1B1.1(a), which is determined before consideration of any departure
provision in the Guidelines Manual or any variance.” 23 Then, if the
defendant is eligible for a reduction, a district court considers the applicable
18 U.S.C. § 3553(a) factors to determine whether that reduction is
warranted, either in whole or in part, under the particular circumstances of
the case.24 We first consider whether Lopez preserved error.
II
If Lopez preserved the error “by specific objection in the trial
18
18 U.S.C. § 3582(c)(2); accord United States v. Doublin, 572 F.3d 235, 237 (5th
Cir. 2009) (per curiam).
19
See Koons v. United States, 138 S. Ct. 1783, 1790 (2018) (holding that defendants
must “satisfy § 3582(c)(2)’s threshold ‘based on’ requirement” to be eligible for a
sentence reduction).
20
Dillon v. United States, 560 U.S. 817, 826 (2010).
21
Id. at 826-27.
22
See USSG § 1B1.10(a)(1).
23
U.S. Sent’g Guidelines Manual § 1B1.10 cmt. 1(A) (U.S. Sent’g
Comm’n 2018).
24
Dillon, 560 U.S. at 826.
7
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court,”25 the court should “review the decision whether to reduce a
sentence under § 3582(c)(2) for abuse of discretion, its interpretation of the
[G]uidelines de novo, and its findings of fact for clear error.”26 If Lopez
“failed to make his objection . . . sufficiently clear, the issue is considered
forfeited, and we review only for plain error.”27 “Plain error review requires
four determinations: whether there was error at all; whether it was plain or
obvious; whether the defendant has been substantially harmed by the error;
and whether this court should exercise its discretion to correct the error in
order to prevent a manifest miscarriage of justice.”28 We conclude that
Lopez preserved error.
Our circuit lacks a bright-line rule for determining whether a litigant
raised an argument below.29 We often frame the inquiry as whether the
argument was raised to such a degree that the district court had an
opportunity to rule on it.30 In N.Y. Life Ins. Co. v. Brown, the plaintiff
complained that by not adequately raising the argument below, the defendant
forfeited the issue of whether he “appeared” in the action. 31 After a grant of
summary judgment for the plaintiff, the defendant filed a motion to vacate,
25
United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir 2012) (citing
United States v. Gharbi, 510 F.3d 550, 554 (5th Cir. 2007)).
26
United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009) (citations and emphasis
omitted).
27
Chavez-Hernandez, 671 F.3d at 497 (citations omitted).
28
Id. (first citing United States v. Olano, 507 U.S. 725 (1993); and then citing United
States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005)).
29
N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 n.4 (5th Cir. 1996) (citing First United
Fin. Corp. v. Specialty Oil Co., Inc.–I, 5 F.3d 944, 948 n.9 (5th Cir. 1993)).
30
See, e.g., Belt v. EmCare, Inc., 444 F.3d 403, 409 (5th Cir. 2006); F.D.I.C. v.
Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994).
31
84 F.3d at 141 n.4.
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complaining that he never received notice before the granting of summary
judgment.32 After the court denied his motion, the defendant appealed,
arguing again that he did not receive notice of the summary judgment, and
more specifically, that he was entitled to such notice because he “appeared”
in the proceedings.33 The court reasoned that “[w]hile [the defendant] might
have raised the issue more specifically, we are persuaded that his motion to
vacate the judgment met the threshold level to avoid forfeiture.”34
Here, the Government and Lopez submitted an agreed order to
reduce Lopez’s sentence. Through the order, Lopez informed the court of
the action he wished the court to take.35 The argument, albeit an implied one,
that the law entitled Lopez to a sentence reduction was raised to such a
degree that the district court had an opportunity to rule on it. Indeed, it is
the only thing the district court ruled on.
Because the district court was on notice of the action that Lopez
wished the court to take, our review of the district court’s order is not
confined to plain error. Instead, we review the district court’s interpretation
of the Guidelines de novo.36
III
We now evaluate whether Lopez’s term of imprisonment was “based
on a sentencing range that has subsequently been lowered.” 37 “For a
32
Id. at 141.
33
Id. at 141-42 & n.4.
34
Id. at 141 n.4.
35
See Fed. R. Crim. P. 51(b).
36
See United States v. Quintanilla, 868 F.3d 315, 319 (5th Cir. 2017) (quoting United
States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009)).
37
18 U.S.C. § 3582(c)(2).
9
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sentence to be ‘based on’ a lowered Guidelines range, the range must have
at least played ‘a relevant part in the framework the sentencing judge used’
in imposing the sentence.”38 “The Guidelines range will often play that part,
for district judges must calculate the defendant’s advisory range and then will
frequently tie the sentence they impose to that range.”39
In Koons v. United States, the Supreme Court considered whether
defendants satisfied this threshold eligibility requirement. 40 Critically,
Guidelines section 5G1.1 provides 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.”41 In Koons, in “each of petitioners’ cases, the top end of the
Guidelines range fell below the applicable mandatory minimum sentence,
and so the [lower] court concluded that the mandatory minimum superseded
the Guidelines range.”42 The defendants sought a reduced sentence under
18 U.S.C. § 3553(e) and its corresponding Guidelines provision, which
provide that the court may impose a sentence below the mandatory minimum
if the defendant has substantially assisted the government in the prosecution
of other crimes.43 The Supreme Court held that the defendants’ sentences
were not based on a lowered Guidelines range, but rather on the mandatory
minimum guideline sentence:
Their sentences were not “based on” the lowered Guidelines
38
Koons v. United States, 138 S. Ct. 1783, 1788 (2018) (brackets omitted) (quoting
Hughes v. United States, 138 S. Ct. 1765, 1778 (2018)).
39
Id. (citing Hughes, 138 S. Ct. at 1775-76).
40
Id.
41
USSG § 5G1.1(b).
42
Koons, 138 S. Ct. at 1787.
43
Id. at 1787-88.
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ranges because the District Court did not consider those ranges
in imposing its ultimate sentences. On the contrary, the court
scrapped the ranges in favor of the mandatory minimums, and
never considered the ranges again; as the court explained, the
ranges dropped out of the case.44
Here, after granting the section 5K1.1 motion for downward
departure, the district court determined that Lopez’s guideline range for the
marijuana count was 210 months (the lower end of the Guidelines range) to
240 months (the statutory maximum). Thus, the guideline range was “a
relevant part of the analytic framework the judge used to determine the
sentence.”45 The Government’s motion under section 5K1.1 was framed in
terms of a departure from total offense levels. The Government requested
“a departure amount of Three (3) levels,” which “would place [Lopez] at a
level Thirty-Two (32) with a possible guideline range of 210-262 months.”
Unlike the district court in Koons, the court here did not discard or “scrap[]
the ranges in favor of the mandatory minimums . . . never consider[ing] the
ranges again.”46 The district court here explicitly relied on Lopez’s initial
guideline range in calculating the level of departure under section 5K1.1.
Therefore, Lopez passes the threshold “based on” requirement.
IV
Finally, we determine whether Lopez is eligible for a reduction under
Guidelines section 1B1.10, which requires that the “guideline range
applicable” to him be lowered. Again, the 2018 Guidelines define this as
“the guideline range that corresponds to the offense level and criminal
44
Id. at 1788.
45
Hughes v. United States, 138 S. Ct. 1765, 1776 (2018) (quoting Freeman v. United
States, 564 U.S. 522, 530 (2011) (plurality opinion)).
46
Koons, 138 S. Ct. at 1788.
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history category determined pursuant to [section ]1B1.1(a), which is
determined before consideration of any departure provision in the Guidelines
Manual or any variance.”47 Lopez argues that the “guideline range
applicable” to him is his “initial guideline range”—the range that was
calculated before considering the statutory maximum that became his
“guideline sentence” by operation of section 5G1.1. He argues that the
“guideline range applicable” to him is his “initial guideline range” of 292 to
365 months, not his “guideline sentence” of 240 months. Because the
“guideline range applicable” to him is his “initial guideline range,” and
Amendment 782 lowered his “initial guideline range,” Lopez argues, he is
eligible for a sentence reduction.
The Government leans heavily on United States v. Carter48 in support
of its position that the “guideline range applicable” to Lopez is
indistinguishable from his “guideline sentence,” but Carter’s holding has
been abrogated by subsequent Guidelines amendments. In Carter, the
defendant’s “guideline range” was 87 to 108 months.49 However, the
statutory minimum was 120 months.50 Thus, under section 5G1.1 of the
Guidelines, the “statutory minimum became the applicable ‘guideline
sentence.’”51 A later Guidelines amendment changed Carter’s guideline
range to 70 to 87 months.52 The statutory minimum, 120 months, remained
47
U.S. Sent’g Guidelines Manual § 1B1.10 cmt. 1(A) (U.S. Sent’g
Comm’n 2018).
48
595 F.3d 575 (5th Cir. 2010) (per curiam).
49
Id. at 577.
50
Id. at 576.
51
Id. at 577 (quoting USSG § 5G1.1(b)).
52
Id.
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the guideline sentence.53 Carter, like Lopez, argued that he was eligible for a
reduction because his guideline range was lowered. 54 The Carter court
framed the question before it as “whether the district court correctly
concluded that Carter is ineligible for a sentence reduction under 18 U.S.C.
§ 3582(c)(2) and [section 1B1.10 of the Guidelines], in light of the statutory
minimum sentence.”55
The Carter court considered what constituted “the guideline range
applicable” to Carter under section 1B1.10 of the Guidelines.56 Carter argued
that the court should consider the guideline range in the sentencing table
“even though a statutory minimum guideline sentence superseded that
range.”57 The court “reject[ed] this argument because . . . the term
‘guideline range applicable’ in [section] 1B1.10 includes a statutory
minimum sentence when such a minimum applies.” 58 The Carter court
“agree[d] with the Eleventh Circuit that for purposes of determining
eligibility for a sentence reduction, the statutory-minimum ‘guideline
sentence’ becomes the applicable ‘guideline range,’” 59 and that “a
subsequent amendment to . . . the unutilized guideline range calculation[]
does not provide grounds for a sentence reduction.”60
The Government argues that Carter’s holding be extended to the
53
See id. at 577, 579.
54
Id. at 579-80.
55
Id. at 577.
56
Id. at 580.
57
Id. (citing USSG § 5G1.1(b)).
58
Id.
59
Id.
60
Id. at 581.
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present case, involving a statutory maximum. However, in 2014, after Carter
was decided, section 1B1.10 was amended.61 Amendment 780, incorporated
at Guidelines section 1B1.10(c), effectively abrogated Carter’s holding.62
Amendment 780 created a special rule for determining the revised guideline
range for defendants like Carter—those who were subject to a statutory
minimum penalty when originally sentenced but were relieved of that
statutory minimum because of the government’s motion for substantial
assistance.63 The rule holds that when an offender is thereby eligible for a
sentence below a statutory minimum, the defendant’s guideline range when
he seeks a sentence reduction under § 3582(c)(2) “shall be determined
without regard” to the statutory minimum.64 In essence, the statutory
minimum does not supersede the “initial guideline range”—therefore, the
“guideline range applicable” to the defendant is the “initial guideline
range,” not the “guideline sentence.”65
In enacting this amendment, the Sentencing Commission disagreed
with the principle announced by this court in Carter and similar holdings in
other circuits—that the “guideline range applicable” to the defendant
becomes the statutory minimum.66 Amendment 780 has thus abrogated
61
See U.S. Sent’g Guidelines Manual supp. app. C, amend. 780 (U.S.
Sent’g Comm’n 2014).
62
Id. at supp. app. C, amend. 780; id. § 1B1.10(c) (policy statement incorporating
Amendment 780).
63
See 18 U.S.C. § 3553(e) (allowing a district court to sentence a defendant below
the statutory minimum pursuant to the government’s motion for substantial assistance).
64
See U.S. Sent’g Guidelines Manual § 1B1.10(c) (U.S. Sent’g
Comm’n 2014).
65
See id.
66
The Supreme Court in Koons acknowledged the policy statement but did not
apply it because the defendants there did not pass the threshold “based on” requirement
in § 3582(c)(2). See Koons v. United States, 138 S. Ct. 1783, 1790 (2018) (“[B]ecause
14
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Carter; in so doing, the Commission sought to “ensure[] that defendants who
provide substantial assistance to the government in the investigation and
prosecution of others have the opportunity to receive the full benefit of a
reduction that accounts for that assistance.”67 As explained more fully
below, the Government’s theory would deny Lopez the full benefits of his
assistance.
In addition to Amendment 780, two cases from neighboring circuits
provide further support for our conclusion: In re Sealed Case68 and United
States v. Savani.69 In In re Sealed Case, the D.C. Circuit held that the
defendant was eligible for a sentence reduction despite the presence of a
statutory minimum. The Government argued, similar to the Government’s
argument today, that “a mandatory minimum ‘guideline sentence’ does not
just defeat a defendant’s ‘applicable guideline range’; it becomes the
defendant’s applicable guideline range.” 70 The court held that the
defendants were eligible for a reduction, in part because the “plain language”
of the Guidelines “distinguishes between an ‘applicable guideline range’ and
petitioners do not satisfy § 3582(c)(2)’s threshold ‘based on’ requirement, the
Commission had no power to enable their sentence reductions.”); U.S. Sent’g
Guidelines Manual supp. app. C, amend. 780 (U.S. Sent’g Comm’n 2014)
(stating that the amendment “generally adopts the approach of . . . the District of Columbia
Circuit in In re Sealed Case”); In re Sealed Case, 722 F.3d 361, 368-70 (D.C. Cir. 2013)
(disagreeing with Carter and similar cases in other circuits and holding that a defendant in
Carter’s position was eligible for a reduction).
67
U.S. Sent’g Guidelines Manual supp. app. C, amend. 780 (U.S.
Sent’g Comm’n 2014).
68
722 F.3d 361 (D.C. Cir. 2013).
69
733 F.3d 56 (3d Cir. 2013).
70
In re Sealed Case, 722 F.3d at 369 (emphasis in original).
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a ‘guideline sentence.’”71
In re Sealed Case specifically distinguished Carter. The D.C. Circuit
explained, “A sentencing court uses a defendant’s offense level and criminal
history category to find a guideline range at step seven of the Application
Instructions . . . prior to determining whether a mandatory minimum applies
at step eight.”72 A “mandatory minimum cannot ‘correspond to’ [a
defendant’s] offense level and criminal history category under the Guidelines
because it is a creature of statute, unaffected by those variables.”73 United
States v. Savani further explains this “step seven” point:
In support of their position, appellants point out that the
terminology the Commission selected for the description of
“applicable guideline range” mirrors, in-part, the language
of § 1B1.1(a)(7). Section 1B1.1(a)(7) requires the sentencing
court to calculate a defendant’s initial guideline sentence by
“[d]etermin[ing] the guideline range” from the table in § 5A
“that corresponds to the offense level and criminal history category
determined ” in steps (a)(1)-(a)(6). In Application Note 1(A)
of § 1B1.10, the Sentencing Commission defines “applicable
guideline range” as “the guideline range that corresponds to the
offense level and criminal history category determined pursuant
to § 1B1.1(a) . . . .”
We presume that this choice of language by the
Sentencing Commission is deliberate. Appellants contend that
the Sentencing Commission’s choice to incorporate this
language into the new definition of “applicable guideline
range” demonstrates the Commission’s intent to define the
phrase as the initial guidelines sentencing range calculated
under § 5A; if the Commission had not intended such a result,
71
Id. (citing USSG § 5G1.1(b)).
72
Id. (emphasis in original) (citations omitted).
73
Id. (citing Savani, 733 F.3d at 63 n.5).
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it would not have utilized this language. Appellants urge that
the sentencing range ascertained at § 1B1.1(a)(7) is the result of
the culmination of steps § 1B1.1(a)(1)-(a)(6), i.e., that the steps
of § 1B1.1(a)(1)-(a)(6) are the prerequisite steps the sentencing
court must proceed through before it can reach
step § 1B1.1(a)(7) and determine the range associated with the
offense level and criminal history category. Thus, the
definition’s reference to § 1B1.1(a), combined with the
inclusion of terminology that mirrors § 1B1.1(a)(7), indicates
that the Commission intended “applicable guideline range” to
refer to the intersection between the offense level and criminal
history category at § 1B1.1(a)(7), not the sentence required by
a mandatory minimum as subsequently determined at
step § 1B1.1(a)(8).74
The appellants’ argument in Savani is persuasive. Based on Koons and
the overarching purpose of § 3582(c)(2), we conclude the “guideline range
applicable” to Lopez was his “initial guideline range.” Because that range
has been subsequently lowered, Lopez is eligible for a sentence reduction.
Here, the court assigned Lopez a total offense level of 35 and a criminal
history category of VI, resulting in an initial guideline range of 292 to 365
months. The Government moved for a three-level downward departure for
substantial assistance pursuant to Guidelines section 5K1.1. Significantly,
the court calculated this departure from Lopez’s “initial guideline range.”
Indeed, that is the only conceivable way to implement the Government’s
motion, as the court cannot depart three levels from the “guideline
sentence” of 240 months. Now that a Guidelines amendment has reduced
this “initial guideline range,” the Government contends that the reduction
should be calculated from the “guideline sentence” as the starting point, as
opposed to the “initial guideline range.” That is not how the district court
74
733 F.3d at 62-63 (alterations and emphasis in original) (citations omitted).
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calculated Lopez’s reduction at his original sentencing, and it is not how we
calculate it now.
The overarching purpose of § 3582(c)(2)—to impose the sentence the
defendant would have received if the revised Guidelines had applied at the
time of his sentencing—also militates in favor of a reduction.75 If the revised
Guidelines were in place at the time Lopez was sentenced, his offense level
would have been 37, and his criminal history category would have stayed at
VI. This would have placed him in the guideline range of 262 to 327 months.
The Government would have moved for a three-level downward departure
under section 5K1.1, reducing his range to 188 to 235 months.
* * *
We hold that Lopez’s sentence is “based on” his initial guideline
range because that range “played ‘a relevant part in the framework the
sentencing judge used’ in imposing [Lopez’s] sentence.”76 We further hold
that the “guideline range applicable” to Lopez is his “initial guideline range”
of 292 to 365 months. Amendment 780 lowered the “guideline range
applicable” to Lopez from 292 to 365 months to 262 to 327 months.
Therefore, we VACATE the judgment and REMAND to the district court
for the ultimate determination of whether a reduction of Lopez’s sentence is
warranted. This decision is left to the discretion of the district court, as
75
See USSG § 1B1.10(b)(1) (“[T]he court shall determine the amended guideline
range that would have been applicable to the defendant if the [revised Guidelines] had been
in effect at the time the defendant was sentenced.”).
76
Koons v. United States, 138 S. Ct. 1783, 1788 (2018) (brackets omitted) (quoting
Hughes v. United States, 138 S. Ct. 1765, 1778 (2018)).
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No. 17-50806
guided by the policy statement and the sentencing factors listed at 18 U.S.C.
§ 3553(a).77
77
See USSG § 1B1.10(b); 18 U.S.C. § 3582(c)(2) (providing that “the court may
reduce the term of imprisonment, after considering the factors set forth in section 3553(a)
to the extent that they are applicable”).
19