FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 25, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2247
(D.C. No. 1:08-CR-02436-JAP-1)
MATTHEW MOWERY, (D.N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Defendant Matthew Mowery appeals the district court’s dismissal of his
motion for resentencing under 18 U.S.C. § 3582(c)(2). Because we conclude the
district court had authority to resentence Mowery, we reverse.
In 2009, Mowery pleaded guilty to possession of methamphetamine with intent
to distribute. The Presentence Investigation Report (PSR) calculated a Guidelines
*After examining the briefs and appellate record, this panel has
determined unanimously that oral argument wouldn’t 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 isn’t binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. But it
may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
range of 168 to 210 months in prison. The district court adopted the PSR’s findings
and imposed a 168-month sentence.
In 2015, Mowery filed a motion for sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) and Amendment 782 to the United States Sentencing Guidelines.
Mowery asserted that Amendment 782, when applied retroactively to his sentence,
would reduce his offense level and result in a lower Guidelines range. The
government opposed the motion, and the district court dismissed the motion on the
basis that “Amendment 782 has not resulted in a lower sentencing range than what
this Court imposed previously.” R. vol. 1, 42; see § 3582(c)(2) (authorizing
resentencing only when the original sentence was “based on a sentencing range that
has subsequently been lowered by the Sentencing Commission”).
Mowery filed a motion to reconsider the district court’s dismissal. This time,
the government conceded that the district court was authorized under § 3582(c)(2) to
resentence Mowery. Nevertheless, the district court again concluded that it lacked
authority to resentence Mowery, and it denied his motion to reconsider.
Mowery appeals.1 The government concedes, as it did below, that Mowery is
eligible for resentencing. Exercising de novo review, see United States v. Rhodes,
1
Although Mowery’s notice of appeal designates only the district court’s
denial of his motion for reconsideration, we may review the district court’s initial
dismissal of Mowery’s motion for resentencing. See Bowdry v. United Airlines, Inc.,
58 F.3d 1483, 1489 n.11 (10th Cir. 1995) (holding that notice of appeal explicitly
designating denial of motion to reconsider was nevertheless sufficient to designate
original order); United States v. McKinney, No. 16-3252, 2017 WL 1130169, at *1-2
(10th Cir. Mar. 27, 2017) (unpublished) (reviewing underlying motion for
2
549 F.3d 833, 837 (10th Cir. 2008), we reverse. The district court was authorized to
resentence Mowery because Amendment 782 lowered the applicable Guidelines
range.
We begin by explaining Mowery’s original sentence. Based on the amount of
actual methamphetamine attributed to Mowery, his base offense level was 34. He
received a three-level reduction for accepting responsibility. And because he
committed the underlying offense while on supervised release for a 2005 drug
conviction, he received a three-level enhancement pursuant to U.S.S.G. § 3C1.3 and
18 U.S.C. § 3147(1). Accordingly, his total offense level was 34, which, when
combined with his category II criminal history, yielded a range of 168 to 210 months.
The district court sentenced Mowery to 168 months in prison. But the district
court divided the sentence into two consecutive terms—the court attributed 121
months to the underlying drug offense and 47 months to the § 3147(1) enhancement.
This division was mandated by § 3147(1) itself, which provides that “[a] term of
imprisonment imposed under this section shall be consecutive to any other sentence
of imprisonment.” In explaining that requirement, the Guidelines state that “the court,
in order to comply with the statute, should divide the sentence on the judgment form
between the sentence attributable to the underlying offense and the sentence
attributable to the enhancement.” U.S.S.G. § 3C1.3 cmt. n.1. But despite that
resentencing even though “the notice of appeal designated the district court’s order
dismissing [defendant’s] motion to reconsider as the order appealed from”).
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division, Mowery’s sentence remained a “total punishment” that fell within the
applicable Guidelines range for the drug offense. Id.
That Guidelines range—168 to 210 months—was subsequently lowered by
Amendment 782. Under the 2008 Guidelines, the drug quantity attributable to
Mowery resulted in a base offense level of 34. Amendment 782 lowered the base
offense level to 32, and Amendment 788 made that reduction retroactive. When
calculating an amended Guidelines range under § 3582(c)(2), “the court shall . . .
leave all other guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1).
Here, after lowering Mowery’s new base offense level by three for accepting
responsibility and raising it by three for the § 3147(1) enhancement—just as the first
sentencing court did—Mowery’s amended total offense level is 32. That corresponds
to a Guidelines range of 135 to 168 months. Because that range is lower than
Mowery’s original range of 168 to 210 months, he is eligible for resentencing under
§ 3582(c)(2). See Dillon v. United States, 560 U.S. 817, 819 (2010).2
In dismissing Mowery’s motion, the district court relied on our decision in
United States v. Kurtz, 819 F.3d 1230 (10th Cir. 2016). There, we noted that a court
can’t “reduce the defendant’s term of imprisonment . . . to a term that is less than the
minimum of the amended guideline range.” Id. at 1234 (alteration in original)
(quoting U.S.S.G. § 1B1.10(b)(2)(A)). The original sentencing court in Kurtz
2
Of course, Mowery’s mere eligibility for resentencing doesn’t require the
district court to lower his sentence. See Dillon, 560 U.S. at 827 (explaining that
“§ 3582(c)(2) instructs a court to consider any applicable § 3553(a) factors and
determine whether, in its discretion, the reduction . . . is warranted”).
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sentenced the defendant to 78 months in prison based on a Guidelines range of 151 to
188 months. Id. at 1235 & n.1. When Amendment 782 subsequently lowered the
defendant’s Guidelines range to 121 to 151 months, the district court therefore lacked
authorization to reduce the defendant’s sentence (because 78 months is less than 121
months). Id. at 1235.
Here, the district court noted that the portion of Mowery’s original sentence
attributed to the drug offense was 121 months. Relying on Kurtz, the district court
concluded that because 121 months is lower than the low end of Mowery’s amended
Guidelines range of 135 to 168 months, Mowery is ineligible for a reduced sentence.
The district court erred in bifurcating Mowery’s sentence and considering only
the 121 months attributed to the underlying drug offense. Although the original
sentencing court was required to delineate the portions of the sentence attributed to
the drug offense and the § 3147(1) enhancement, Mowery’s “total punishment” was
168 months. See U.S.S.G. § 3C1.3 cmt. n.1. The Guidelines offer the following
illustration: “For example, if the applicable adjusted guideline range is 30-37 months
and the court determines a ‘total punishment’ of 36 months is appropriate, a sentence
of 30 months for the underlying offense plus 6 months under 18 U.S.C. [§] 3147
would satisfy this requirement.” Id.
The original sentencing court determined that Mowery’s total sentence was
168 months. And it constructed a divided sentence that satisfied § 3147(1) and
U.S.S.G. § 3C1.3 cmt. n.1. But as the government notes, § 3147(1) doesn’t set forth
“a separate offense of conviction.” United States v. Browning, 61 F.3d 752, 756 (10th
5
Cir. 1995). Rather, it is “strictly a sentencing enhancement provision.” Id.
Accordingly, a § 3147(1) enhancement operates in the same way “as in any other
case in which a [Guidelines] adjustment applies.” U.S.S.G. § 3C1.3 cmt. n.1. It
differs from ordinary adjustments only in that the sentencing court is required to
attribute to it a specific number of months. Id.; see § 3147(1). But that attribution
doesn’t change the fact that the court renders a “total punishment” that must fall
within “the guideline range for the offense committed.” U.S.S.G. § 3C1.3 cmt. n.1.
Thus, when determining whether a defendant’s original sentence falls below an
amended Guidelines range, the correct point of comparison is the defendant’s total
original sentence—even when that sentence includes a § 3147(1) enhancement. And
because Mowery’s 168-month sentence is higher than the low end of his amended
Guidelines range—135 to 168 months—Mowery is eligible for resentencing.
Accordingly, we reverse the district court’s order dismissing Mowery’s motion
for resentencing and remand for further proceedings.3
Entered for the Court
Nancy L. Moritz
Circuit Judge
3
In his opening brief, Mowery requests a certificate of appealability (COA).
But because this appeal doesn’t concern a habeas corpus proceeding, no COA is
required. Cf. 28 U.S.C. § 2253(c)(1). We therefore deny Mowery’s request for a COA
as moot.
6