U.S. v. Darton

• Decision Date: 17 February 2010
• Docket Number: No. 09-1137.,09-1137.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Corey L. DARTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

595 F.3d 1191

UNITED STATES of America, Plaintiff-Appellee, v. Corey L. DARTON, Defendant-Appellant.

No. 09-1137.

United States Court of Appeals, Tenth Circuit.

February 17, 2010.

Rudy E. Verner, Davis Graham & Stubbs LLP, Denver, CO, for Appellant.

John M. Hutchins, Assistant U.S. Attorney (David M. Gaouette, United States Attorney, and Michelle Korver, Assistant U.S. Attorney, with him on the brief), Denver, CO, for Appellee.

Before TACHA, SEYMOUR and LUCERO, Circuit Judges.

TACHA, Circuit Judge.

Corey L. Darton appeals the district court's denial of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2)LQ and Amendment 706 to the United States Sentencing Guidelines ("U.S.S.G."). He argues that the district court erred in determining that his sentence was based on the career-offender provision of the guidelines, see U.S.S.G. § 4B1.1, rather than on the provision governing crack cocaine offenses, see § 2D1.1(c). We take jurisdiction under 28 U.S.C. § 12910005 and AFFIRM.

I. BACKGROUND

On November 15, 2005, Mr. Darton pleaded guilty to unlawful possession of cocaine base (crack cocaine) with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). The plea agreement¹ calculated his sentence as follows. Mr. Darton received a base offense level of 26 for the quantity and type of drug under United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1(c)(7). Two levels were added because he possessed a firearm. See § 2D1.1(b)(1). After a three-level reduction for acceptance of responsibility, see § 3E1.1, the total offense level was 25. With a criminal history category of IV, the resulting guideline range was 84-105 months' imprisonment. The parties tentatively agreed that Mr. Darton did not qualify as a career offender under § 4B1.1.

Thereafter, the probation office prepared a presentence report ("PSR"). In contrast to the parties' position on the applicability of § 4B1.1, the PSR determined that Mr. Darton qualified as a career offender under that provision.² If a defendant is a career offender, § 4B1.1 instructs the court to compare the § 4B1.1 offense level (which is calculated according to the maximum statutory sentence for the offense of conviction) to the offense level that would apply in the absence of the career-offender provision. See § 4B1.1(b); United States v. Jeppeson, 333 F.3d 1180, 1183 (10th Cir.2003). If the career-offender offense level is greater than the otherwise applicable offense level, the sentencing court must use the career-offender offense level and assign the defendant a criminal history category of VI. See § 4B1.1(b); Jeppeson, 333 F.3d at 1183. In Mr. Darton's case, the career-offender offense level was 32, see § 4B1.1(b)(C), which was greater than the otherwise applicable level of 25 calculated under § 2D1.1(c). Thus, the PSR assigned him an offense level of 32, which, after his three-level reduction for acceptance of responsibility, produced a total offense level of 29. An offense level of 29 and a criminal history category of VI results in a recommended guideline range of 151-188 months' imprisonment.

Mr. Darton objected to the career-offender classification. Alternatively, he argued that even if § 4B1.1 applied, he should be granted a downward departure under §§ 4A1.3 and 5K2.0 because his career-offender status significantly overrepresented the seriousness of his criminal history. At sentencing, the district court agreed with the recommendations of the PSR and determined that the advisory guideline range was 151-188 months. The court then exercised its discretion and departed downward from that range under §§ 4A1.3 and 5K2.0 as requested by Mr. Darton. Ultimately, the court imposed a sentence of 96 months, roughly in the middle of the sentencing range contemplated by the parties in the plea agreement. In departing downward, the court stated:

[T]he court believes that it should depart downward, and will do so, on the basis of overrepresentation, to offense level 25 and criminal history category IV, which in turn will produce a guideline sentencing range of 84 to 105 months, which importantly is consistent with the tentative expectation of the parties as they presented then known information and circumstances to the court in their plea agreement.

In November 2007, the United States Sentencing Commission promulgated Amendment 706, which is retroactive and generally provides a two-level reduction in the base offense level for crack cocaine offenses under § 2D1.1(c). See United States v. Rhodes, 549 F.3d 833, 835 (10th Cir.2008). Thereafter, Mr. Darton moved for a sentence modification under 18 U.S.C. § 3582(c)(2), arguing that Amendment 706 rendered him eligible for a reduced sentence. The district court denied the motion, stating:

This case presents the issue of whether the defendant is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendment 706 when his base offense level is set under the § 4B1.1 career offender guideline, and thereafter the sentencing court departs downward and imposes a sentence that is less than the advisory range for a career offender. As a matter of law, I conclude and hold . . . that the defendant is not eligible for a sentence modification in those circumstances.

The district court concluded in the alternative that even if Mr. Darton were eligible for relief, it would not exercise its discretion to reduce his sentence. This appeal followed. We conclude that the district court correctly determined that Mr. Darton did not qualify for a sentence modification under § 3582(c)(2). We therefore do not address the district court's alternative ruling.

II. DISCUSSION

A district court's authority to modify a previously imposed sentence is limited by § 3582(c), and, in this specific case, § 3582(c)(2). The interpretation of § 3582(c)(2) is a question of law that we review de novo. See Rhodes, 549 F.3d at 837. Under § 3582(c)(2),

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 Commission pursuant to 28 U.S.C. § 994(o)³ . . . the court may reduce the term of imprisonment, . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

Put another way, a defendant may have his sentence reduced only if his sentence is "based on a sentencing range that has subsequently been lowered [by Amendment 706]," and only when a reduction is "consistent with applicable policy statements issued by the Sentencing Commission." The applicable policy statements are binding on the district court and are found at U.S.S.G. § 1B1.10. See Rhodes, 549 F.3d at 840, 841. Under § 1B1.10(a)(2)(B), a sentence reduction is not authorized if the amendment at issue "does not have the effect of lowering the defendant's applicable guideline range."

We have explained that the two prerequisites to a § 3582(c)(2) sentence reduction—that the defendant's sentence is "based on a sentencing range that has subsequently been lowered" by an amendment and that the amendment would "lower[] the defendant's applicable guideline range"—are "identical" and "convey[] the same meaning." See United States v. Dryden, 563 F.3d 1168, 1170-71 (10th Cir. 2009). Thus, for purposes of § 3582(c)(2) motions involving Amendment 706, a sentence is "based on" the § 2D1.1 sentencing range when § 2D1.1 produces the defendant's "applicable guideline range."

Mr. Darton argues that his sentence, which is undisputably a downward departure under § § 4A1.3 and 5K2.0, is nonetheless "based on" the § 2D1.1 range. Under Dryden, then, this also must mean that the § 2D1.1 departure range constitutes the "applicable guideline range." The guidelines, however, preclude such a conclusion because they specifically define a departure under §§ 4A1.3 and 5K2.0 as "a sentence outside the applicable guideline range." See § 4A1.3 cmt. n. 1 ("[T]he terms `depart', `departure', `downward departure', and `upward departure' have the meaning given those terms in Application Note 1 of the Commentary to § 1B1.1"); § 5K2.0 cmt. n. 1 (same); § 1B1.1 cmt. n. 1(E) ("`Departure' means . . . a sentence outside the applicable guideline range"). Put another way, a departure only exists apart from the applicable guideline range; there is no such thing as a departure to the applicable guideline range. See United States v. Tolliver, 570 F.3d 1062, 1066 (8th Cir.2009).

Because the guideline range to which a court departs cannot constitute the "applicable guideline range" or, in other words, the range upon which a sentence is "based" for purposes of a sentence reduction under § 3582(c), it becomes apparent that the "applicable guideline range" is properly defined as the one calculated after determining the defendant's total offense level and his criminal history category but prior to any departures. Our decision in Dryden supports this conclusion. There, we explained that "[a] sentence is `based on a sentencing range' when the court imposes sentence after calculating the sentencing range derived from the defendant's offense level and criminal-history category." 563 F.3d at 1170-71. Thus, "[i]f a change in the guidelines would not lower the offense level or criminal-history category of the defendant (or lower the sentencing range for that combination of offense level and criminal history), then the defendant cannot say that he `has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.'" Id. at 1171.

Applying this framework in Mr. Darton's case, the "applicable guideline range" (and, accordingly, the range upon which his sentence is based) is the one calculated via the career-offender provision of § 4B1.1. This range is unaffected by Amendment 706, which only lowers the sentencing range produced by § 2D1.1. See United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir.2...