Thursday, April 20, 2017

When is a prior sentence "based on a sentencing range that has subsequently been lowered by the Sentencing Commission?"

Luckily for him, in Mr. Jordan's case. He originally agreed to an 11(c)(1)(C) agreement to 168 months. The agreement included generic language that the parties were "not requesting imposition of an advisory guideline sentence." But the plea agreement itself mentioned a base offense level of 31 and a Guidelines range of 135 to 168 months. And at the change of plea hearing the prosecutor mentioned that Mr. Jordan was a criminal history category III and that the resulting guideline range was 135 to 168 months.

When the PSR came back, it recommended a higher range of 168 to 210 months based on a two level enhancement for possession of firearms. Without an objection to that range, the district court accepted the agreement and sentenced Mr. Jordan to 168 months, mentioning such a sentence was "at the low end of what the guideline range would otherwise have been."

Five years later, "Guideline Amendments 782 and 788 went into effect, retroactively lowering the base offense levels for certain drug quantities." This amendment would have reduced Mr. Jordan's base offense level by two levels. Mr. Jordan filed a motion for sentence reduction under 18 U.S.C. § 3582(c)(2) and requested a sentence of 135 months, which would have been the low end of the new range. The district court denied the motion for lack of jurisdiction. Mr. Jordan's appeal resulted from that denial.

The Tenth Circuit, using the Supreme Court's decision in Freeman, held that Mr. Jordan's sentence was "based on" the Guidelines and remanded the case to the district court to determine if Mr. Jordan should receive the reduction he originally requested.

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