United States v. Ornelas
| Decision Date | 03 June 2016 |
| Docket Number | No. 15-10522,15-10522 |
| Citation | 825 F.3d 548 |
| Parties | United States of America, Plaintiff–Appellee, v. Hector Ornelas, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Balazs (argued), Law Office of John P. Balazs, Sacramento, California, for Defendant–Appellant.
Jason Hitt (argued) and Camil A. Skipper, Assistant United States Attorneys; Benjamin B. Wagner, United States Attorney; United States Attorney's Office, Sacramento, California, for Plaintiff–Appellee.
Before: Andrew J. Kleinfeld, Sandra S. Ikuta, and Paul J. Watford, Circuit Judges.
IKUTA
, Circuit Judge:
Hector Ornelas appeals the district court's order denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2)
. He argues that the district court erred in calculating the guideline range that applied to him at sentencing because it did not take into account a downward departure to his criminal history, see U.S.S.G. § 4A1.3. Had the court included this downward departure, Ornelas argues, he would have been eligible for a sentence reduction. We have jurisdiction under 28 U.S.C. § 1291 and review de novo whether a district court has jurisdiction to resentence a defendant under § 3582. See
United States v. Pleasant , 704 F.3d 808, 810 (9th Cir. 2013). We hold that the district court was correct to calculate the guideline range that applied to Ornelas at sentencing without taking into account the § 4A1.3 downward departure, and we therefore affirm.
Before addressing the facts of this case, we explain the framework for analyzing Ornelas's argument that the district court erred in declining to reduce his sentence.
“As a general matter, courts may not alter a term of imprisonment once it has been imposed.” United States v. Hicks , 472 F.3d 1167, 1169 (9th Cir. 2007)
, abrogated on other grounds by
Dillon v. United States , 560 U.S. 817, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Congress has created an exception to this rule in 18 U.S.C. § 3582(c)(2).1 Under this section, a court may reduce a defendant's term of imprisonment if (1) the defendant was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission” by an amendment to the Guidelines2 and (2) “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2)
.
The “applicable policy statement” relevant here is § 1B1.10 of the Sentencing Guidelines. See Pleasant , 704 F.3d at 809–10
. Under this section, if “a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment” that is listed in § 1B1.10(d),3 the court has the discretion to “reduce the defendant's term of imprisonment” consistent with § 1B1.10. U.S.S.G. § 1B1.10(a)(1).
In order to determine the defendant's eligibility under this section, the court must determine “the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines” listed in § 1B1.10(d)
“had been in effect at the time the defendant was sentenced.” Id. § 1B1.10(b)(1).4 In determining this amended guideline range, the court substitutes the new amendment “for the corresponding guideline provisions that were applied when the defendant was sentenced,” but must “leave all other guideline application decisions unaffected.” Id. After the court calculates the amended guideline range, it must determine whether the defendant's term of imprisonment is greater or less than the minimum of this amended guideline range. Under § 1B1.10(a)(2)(B), “[a] reduction in the defendant's term of imprisonment” is not authorized if the new amendment “does not have the effect of lowering the defendant's applicable guideline range.” Id. § 1B1.10(a)(2)(B).5 Therefore, if the defendant's term of imprisonment is less than the minimum of the amended guideline range, then the defendant is ineligible for a sentence reduction.
Before 2011, the Guidelines did not provide guidance on how a court should determine the applicable guideline range under § 1B1.10
. The Second, Third, and Fourth Circuits agreed that at a minimum, the applicable guideline range included a reduction in a defendant's criminal history category, as allowed under § 4A1.3 (2009) (“Departures Based on Inadequacy of Criminal History Category (Policy Statement)”), if such a criminal history category “substantially over-represents the seriousness of the defendant's criminal history,” id. § 4A1.3(b)(1). See
United States v. Flemming , 617 F.3d 252, 271–72 (3rd Cir. 2010) ; United States v. Munn , 595 F.3d 183, 194–95 (4th Cir. 2010)
; United States v. McGee , 553 F.3d 225, 228–30 (2d Cir. 2009). These courts generally reasoned as follows: When a sentencing court follows the Guidelines' seven steps for calculating a defendant's applicable guideline range, § 1B1.1(a)–(g) (2009), the sentencing court must determine the defendant's criminal history category at step six, § 1B1.1(f).6 According to the Fourth Circuit, a sentencing court deciding to apply a departure under § 4A1.3 is merely determining the defendant's correct criminal history category at step six, before calculating the guideline range that corresponds to the “offense level and criminal history category determined above” at step seven, § 1B1.1(g). See
Munn , 595 F.3d at 192–93. Therefore, in determining whether a new amendment has lowered the guideline range applicable to the defendant, Munn explained, the sentencing court should look at the guideline range as calculated with the criminal history category that was determined after the § 4A1.3 departure. Id. ; see also
Flemming , 617 F.3d at 268–69 (). The Third Circuit explained that to the extent the guidelines are ambiguous regarding how to determine the guideline range applicable to a defendant, a court must “apply the rule of lenity and resolve the conflict in the defendant's favor.” Flemming , 617 F.3d at 269–72 & n. 26 (quoting Munn , 595 F.3d at 194 ); see also
On the other side of this split, the Sixth, Eighth, and Tenth Circuits held that the guideline range applicable to a defendant is the range that the district court calculated before granting any departures, including the downward departure allowed by § 4A1.3
. These circuits noted that “departure” is defined “for purposes of § 4A1.3 ” as the “assignment of a criminal history category other than the otherwise applicable criminal history category, in order to effect a sentence outside the applicable guideline range.” U.S.S.G. § 1B1.1 cmt. n.1(E). Because a departure by definition takes the sentence “outside the applicable guideline range,” a court must determine the applicable guideline range before any departures were granted. See, e.g. , United States v. Pembrook , 609 F.3d 381, 385–86 (6th Cir. 2010) ; United States v. Darton , 595 F.3d 1191, 1196–97 (10th Cir. 2010) ; United States v. Blackmon , 584 F.3d 1115, 1116 (8th Cir. 2009) (per curiam).
In 2011, the Commission issued Amendment 759, which amended § 1B1.10
Application Note 1 to address this circuit split. As the Commission explained in its statement of reasons, the “First, Second, and Fourth Circuits have held that, for § 1B1.10 purposes, at least some departures (e.g. , departures under § 4A1.3 (Departures Based on Inadequacy of Criminal History Category) (Policy Statement)) are considered before determining the applicable guideline range, while the Sixth, Eighth, and Tenth Circuits have held that the only applicable guideline range is the one established before any departures.” U.S.S.G. supp. app'x C, amend. 759 (Reason for Amendment) (internal quotation marks omitted). The Commission stated that its amendment “adopts the approach of the Sixth, Eighth, and Tenth Circuits and amends Application Note 1 to clarify that the applicable guideline range referred to in § 1B1.10
is the guideline range determined pursuant to § 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” Id. The Commission noted that this approach was also consistent with its 2010 amendment to § 1B1.1 (), which had clarified that a court first determines the guideline range and then considers “the policy statements and commentary to determine whether a departure is warranted.” Id. § 1B1.1(b) ; see also U.S.S.G. supp. app'x C, amend. 759 (Reason for Amendment) ( ).
As amended, Application Note 1 to § 1B1.10
now states: “Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (d) that lowers the applicable guideline range (i.e., the guideline range that corresponds to the offense level and criminal history category determined pursuant to § 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance ).” U.S.S.G. § 1B1.10 cmt. n.1(A) (effective Nov. 1, 2011) (emphasis added).
As a result of the Sentencing Commission's Amendment 759, all circuits that have addressed the issue after 2011, including those on the wrong side of the circuit split, have recognized that a court must not consider any departures or variances (including departures under § 4A1.3
) in determining the applicable guideline range for purposes of § 1B1.10...
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