United States v. Hancock

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 26, 2018
• Docket: 18-8056
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 26, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 18-8056 v. (D.C. No. 1:13-CR-00162-NDF-1) (D. Wyo.) STEVEN WAYNE HANCOCK,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges. _________________________________

Defendant Steven Wayne Hancock appeals the order of the United States District

Court for the District of Wyoming denying his motion under 18 U.S.C. § 3582(c)(2) to

reduce his sentence because of a retroactive amendment to the United States Sentencing

Guidelines. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Our conclusion

follows easily from a review of his original sentence, the pertinent change in the

guidelines, and the law governing sentence reductions.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Defendant pleaded guilty to conspiracy to possess with intent to distribute and to

distribute methamphetamine. His plea agreement, entered under Fed. R. Crim. P.

11(c)(1)(C), called for a stipulated sentence of 151 months’ imprisonment. The

presentence report (PSR) calculated his base offense level at 34 (based on 270 grams of

actual methamphetamine), his total offense level at 33, and his criminal-history category

as IV, producing a guidelines sentencing range of 188–235 months’ imprisonment. The

PSR noted that a downward variance in Defendant’s offense level to 31 would be

required to reach a sentencing range that would include the 151-month sentence

contemplated by his plea agreement. The district court accepted the plea agreement and

sentenced Defendant to 151 months’ imprisonment.

The United States Sentencing Commission later issued Amendment 782 to the

guidelines, which reduced by two the base offense level for the quantity of

methamphetamine attributable to Defendant. Amendment 788 declared that Amendment

782 should be applied retroactively.

We affirmed the denial of Defendant’s first motion for relief under § 3582(c)(2).

See United States v. Hancock, 667 F. App’x 704, 705–06 (10th Cir. 2016). He then filed

a second motion but was again denied relief. He appeals that denial.

We review de novo the district court’s interpretation of the Sentencing Guidelines.

See United States v. Boyd, 721 F.3d 1259, 1261 (10th Cir. 2013). A court generally “may

not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). But

a defendant may be eligible for a sentence reduction if he was “sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission” when a sentence reduction “is consistent with applicable policy

statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis

added).

The policy statements specify that to determine whether a defendant is entitled to a

sentence reduction, the district court must calculate “the amended guideline range that

would have been applicable to the defendant if the amendment(s) to the

guidelines . . . had been in effect at the time the defendant was sentenced.” USSG

§ 1B1.10(b)(1). To determine the amended guideline range, “the court shall substitute

only the [retroactive] amendments . . . for the corresponding guideline provisions that

were applied when the defendant was sentenced and shall leave all other guideline

application decisions unaffected.” Id. The amended guideline range does not account for

departures or variances from the guidelines applied in setting the defendant’s original

sentence. See USSG § 1B1.10 n.1(A); Boyd, 721 F.3d at 1261, 1263–64.

The policy statements then instruct the district courts that they cannot “reduce the

defendant’s term of imprisonment . . . to a term that is less than the minimum of the

amended guideline range.” USSG § 1B1.10(b)(2)(A). This limitation applies even “[i]f

the term of imprisonment imposed [originally] was outside the guideline range applicable

to the defendant at the time of sentencing.” USSG § 1B1.10, n.3. The sole exception is

for a sentence that was lowered “pursuant to a government motion to reflect the

defendant’s substantial assistance to authorities.” USSG § 1B1.10(b)(2)(B).

Although on Defendant’s prior appeal we held that he was ineligible for a sentence

reduction under § 3582(c)(2) because his original sentence had not been “based on” his guideline sentencing range, see Hancock, 667 F. App’x 704, the Supreme Court has since

modified the test for whether a sentence is so based, see Hughes v. United States, 138 S.

Ct. 1765, 1775 (2018). We therefore assume that Defendant has now satisfied that

condition for a sentence reduction. But Defendant is still ineligible for relief because his

sentence could not be further reduced.

Defendant’s base offense level under Amendment 782 would be 32, rather than

34. The further adjustments to his offense level would be the same as before, so his

newly adjusted total offense level would be 31. The two-level downward variance in

Defendant’s offense level contemplated by his original sentence is irrelevant. See Boyd,

721 F.3d at 1264. With an unchanged criminal-history category of IV, Defendant’s new

guidelines range is 151–188 months.

Under the policy statements, Defendant is not entitled to a sentence reduction

below 151 months—the minimum of that range. See USSG § 1B1.10(b)(2)(A); see also

United States v. Rhodes, 549 F.3d 833, 841 (10th Cir. 2008) (policy statement that “a

sentencing court shall not . . . impose a sentence below the amended guideline range” is

“binding on district courts”). Because Defendant was originally sentenced to 151

months’ imprisonment, the policy statements prohibit any further reduction in his

sentence.

Defendant argues that the policy statements can be ignored, suggesting that they

are “advisory only.” Aplt. Br. at 5 (citing United States v. Booker, 543 U.S. 220 (2005)).

But Booker does not apply in sentence-modification proceedings under § 3582(c)(2). See

Dillon v. United States, 560 U.S. 817, 828 (2010); Rhodes, 549 F.3d at 839–41. The district court therefore correctly held that Defendant is not entitled to a

sentence reduction.

I. CONCLUSION

We AFFIRM the district court’s dismissal of Defendant’s motion.

Entered for the Court

Harris L Hartz Circuit Judge