UNITED STATES of America, Plaintiff-Appellee, v. Thomas James LOWE, AKA Thomas Edward Blake, Defendant-Appellant

136 F.3d 1231, 98 Daily Journal DAR 1606, 98 Cal. Daily Op. Serv. 1147, 1998 U.S. App. LEXIS 2590, 1998 WL 63553
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 18, 1998
Docket96-50397
StatusPublished
Cited by28 cases

This text of 136 F.3d 1231 (UNITED STATES of America, Plaintiff-Appellee, v. Thomas James LOWE, AKA Thomas Edward Blake, Defendant-Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
UNITED STATES of America, Plaintiff-Appellee, v. Thomas James LOWE, AKA Thomas Edward Blake, Defendant-Appellant, 136 F.3d 1231, 98 Daily Journal DAR 1606, 98 Cal. Daily Op. Serv. 1147, 1998 U.S. App. LEXIS 2590, 1998 WL 63553 (9th Cir. 1998).

Opinion

HUG, Chief Judge:

Appellant Thomas Lowe pled guilty and was convicted of conspiracy to manufacture marijuana in violation of 21 U.S.C. §§ 841 and 846. He appeals the district court’s denial of his 18 U.S.C. § 3582(c) motion for modification of his 87-month sentence, which motion he made after the Sentencing Commission amended the Sentencing Guideline under which he was sentenced, U.S.S.G. § 2Dl.l(e). We conclude that we lack jurisdiction over this appeal, and we therefore dismiss the appeal.

I.

Pursuant to a written plea agreement with the Government, Lowe pled guilty to conspiracy to manufacture and distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and to two counts of manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). As part of the plea agreement, Lowe accepted responsibility for growing 1,317 marijuana plants. Lowe was sentenced under U.S.S.G. § 2D1.1(c), which provided:

In the case of an offense involving marijuana plants,- if the offense involved (A) 50 or more marijuana plants, treat each plant as equivalent to 1 KG of marijuana; (B) fewer than 50 marijuana plants, treat each plant as equivalent to 100 G of marijuana.

*1232 Under this guideline, Lowe would be penalized for growing the equivalent of 1,317 kilograms of marijuana, meriting a base offense level of thirty-two because Lowe was in Criminal History Category I. Two separate enhancements.of two levels each were added to his sentence for possession of a firearm and for Lowe’s aggravating role in the conspiracy. Lowe’s PSR recommended 151 months of incarceration. At sentencing on December 6,1993, the district court departed downward by four levels for substantial assistance, a three level adjustment was granted for acceptance of responsibility, and Lowe received a sentence of 87 months of incarceration.

On November 1,1995, the U.S. Sentencing Commission adopted an amendment to the marijuana plant equivalency ratios found in U.S.S.G. § 2D1.1(c). Under the new guideline, a marijuana plant is equivalent to 100 grams of marijuana. Lowe’s base offense level would be 26 under the new guideline, rather than the 32 under which he was sentenced.

On April 17, 1996, Lowe moved in the district court, under 18 U.S.C. § 3582, to reduce his sentence based on the retroactive amendment to the sentencing guideline. Lowe’s codefendant, Schumacher, filed a similar motion on December 12, 1995. On May 23, 1996, the district court granted Schumacher’s request and denied Lowe’s motion in a joint order. Lowe filed a motion for reconsideration on May 29, 1996. It was denied on July 16, 1996. Lowe timely appealed.

II.

We must first determine whether we have jurisdiction over this appeal. We have on numerous occasions entertained appeals from denials of motions for reduction of sentence made under § 3582(c)(2). See, e.g., United States v. Mullanix, 99 F.3d 323 (9th Cir.1996). However, these cases did not discuss the issue of appellate jurisdiction, and so are not controlling on the question before us. United States v. Morales, 898 F.2d 99, 101-02 (9th Cir.1990). On at least one occasion we have stated, albeit without discussion, that we have jurisdiction to hear such a challenge. United States v. Townsend, 98 F.3d 510, 511 (9th Cir.1996). However, the appeal in Townsend raised only questions of law—whether an amendment to a guideline effected a change in the sentence applicable to Townsend, and whether Townsend was entitled to counsel and an evidentiary hearing for his § 3582(c)(2) motion. Lowe’s appeal, in contrast, challenges the district court’s exercise of its discretionary power to determine whether Lowe was entitled to reduction of sentence. As will be explained below, this distinction is significant; the nature of Lowe’s challenge leads us to conclude that we lack jurisdiction to entertain it.

Lowe made his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2), which authorizes the district court to modify an imposed sentence “in the case of a defendant who has been sentenced to a term of imprisonment based upon a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The district court may in its discretion reduce the sentence “after considering the factors set forth in [18 U.S.C. § 3553(a) ] to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. The district court denied Lowe’s motion after applying the relevant factors and concluding that Lowe was not entitled to a reduction of sentence.

Our jurisdiction to review sentencing decisions comes from 18 U.S.C. § 3742(a), which provides that a defendant may seek review of an otherwise final sentence if the sentence:

(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range ...; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

18 U.S.C. § 3742(a); Townsend, 98 F.3d at 511; Morales, 898 F.2d at 101.

Because there was a sentencing guideline applicable to Lowe’s offense, and because the district court sentenced within the then-ap *1233 plicable guideline range, subsections (3) and (4) cannot confer jurisdiction over this appeal. Lowe argues that we have jurisdiction pursuant to subsections (1) and (2) because the district court abused its discretion in determining that Lowe was not entitled to the requested reduction.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Facon
District of Columbia Court of Appeals, 2023
United States v. Owen Dunn
728 F.3d 1151 (Ninth Circuit, 2013)
United States v. Bowers
615 F.3d 715 (Sixth Circuit, 2010)
United States v. Colson
573 F.3d 915 (Ninth Circuit, 2009)
United States v. Leniear
Ninth Circuit, 2009
United States v. Hooks
325 F. App'x 561 (Ninth Circuit, 2009)
United States v. Hicks
228 F. App'x 746 (Ninth Circuit, 2007)
United States v. Harrington
228 F. App'x 747 (Ninth Circuit, 2007)
United States v. Delfino Lomeli Gonzalez
365 F.3d 796 (Ninth Circuit, 2004)
United States v. Robert David Linn, Jr.
362 F.3d 1261 (Ninth Circuit, 2004)
United States v. Daniels
86 F. App'x 296 (Ninth Circuit, 2004)
United States v. Martin
84 F. App'x 804 (Ninth Circuit, 2003)
United States v. Edwards
37 F. App'x 899 (Ninth Circuit, 2002)
United States v. Brown
35 F. App'x 616 (Ninth Circuit, 2002)
United States v. Robins
32 F. App'x 444 (Ninth Circuit, 2002)
United States v. Diaz
26 F. App'x 621 (Ninth Circuit, 2001)
United States v. Ware
14 F. App'x 825 (Ninth Circuit, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
136 F.3d 1231, 98 Daily Journal DAR 1606, 98 Cal. Daily Op. Serv. 1147, 1998 U.S. App. LEXIS 2590, 1998 WL 63553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-plaintiff-appellee-v-thomas-james-lowe-aka-ca9-1998.