United States v. Jordan
2017 U.S. App. LEXIS 6581
| 10th Cir. | 2017Background
- Gregory Jordan pleaded guilty in 2009 under Fed. R. Crim. P. 11(c)(1)(C) to conspiracy to distribute cocaine; the plea agreement proposed a Guidelines offense level of 31 and a sentencing range of 135–168 months.
- The plea agreement included both an express proposed Guidelines range and a disclaimer stating the parties were not requesting imposition of an advisory Guidelines sentence.
- The PSR calculated a higher total offense level (33) and a Guidelines range of 168–210 months (based on 15 kg rather than 10 kg), which the district court adopted; the court nevertheless accepted the 11(c)(1)(C) agreement and imposed a 168-month sentence.
- Amendment 782 (2014) retroactively lowered certain drug offense base levels (reducing the base levels for both 10 kg and 15 kg quantities), prompting Jordan to move under 18 U.S.C. § 3582(c)(2) for a sentence reduction to 135 months.
- The district court denied § 3582(c)(2) relief, concluding Jordan’s sentence was not “based on” the Guidelines because the plea disclaimer and the court’s different Guidelines calculation severed the link; Jordan appealed.
Issues
| Issue | Plaintiff's Argument (Jordan) | Defendant's Argument (Gov't / District Court) | Held |
|---|---|---|---|
| Whether a sentence imposed under an 11(c)(1)(C) plea that expressly proposes a Guidelines sentencing range is “based on” the Guidelines for § 3582(c)(2) eligibility | The plea expressly proposes a Guidelines range (31 → 135–168), so the sentence is based on the Guidelines and thus eligible for reduction | The plea’s disclaimer and omission of some variables (e.g., criminal history language) and the court’s higher Guidelines calculation show the sentence was not based on the Guidelines | Court held the sentence was “based on” the Guidelines: an 11(c)(1)(C) agreement that calls for a Guidelines range satisfies Freeman’s “based on” test |
| Effect of a disclaimer in a plea saying parties are not requesting an advisory Guidelines sentence | Ambiguity exists when the plea both cites a Guidelines range and disclaims reliance; construing ambiguities against the government supports eligibility | The disclaimer shows parties did not rely on the Guidelines, negating § 3582(c)(2) eligibility | Held the disclaimer creates ambiguity when read with the rest of the plea and is not dispositive against § 3582(c)(2) relief |
| Whether a parties’ agreed-upon Guidelines range must match the district court’s calculated, "applicable" Guidelines range for § 3582(c)(2) eligibility | Freeman allows an 11(c)(1)(C) defendant to be eligible if the parties’ chosen range was subsequently lowered, even if the court calculated a different range | The “applicable” range must be the district court’s calculated range; discrepancy negates that the sentence was based on the Guidelines | Held the two inquiries ("based on" vs. "applicable to") can differ in (c)(1)(C) context; an agreement-based range may satisfy the "based on" prong even if the court calculated a different range |
| Whether Jordan met the policy-statement requirement that the "applicable guideline range" was lowered by the Commission | Both the plea range and the district-court range were lowered by Amendment 782; Jordan seeks relief to the low end of the amended district-court range | Government argued applicability questions could defeat relief | Held requirement satisfied because both ranges were lowered; court assumed (without deciding) the PSR/district-court range is the “applicable” range for computing the reduction on remand |
Key Cases Cited
- Freeman v. United States, 564 U.S. 522 (construing when an 11(c)(1)(C) sentence is “based on” the Guidelines for § 3582(c)(2))
- United States v. Leonard, 844 F.3d 102 (2d Cir.) (an 11(c)(1)(C) agreement invoking the Guidelines can satisfy § 3582(c)(2) even if court calculated a different range)
- United States v. Smith, 658 F.3d 608 (6th Cir.) (holding an agreement-based range can support § 3582(c)(2) relief)
- United States v. White, 765 F.3d 1240 (10th Cir.) (distinguishing non-(c)(1)(C) "based on" line of cases)
- United States v. Darton, 595 F.3d 1191 (10th Cir.) (pre-Freeman treatment equating "based on" and "applicable to" in non-(c)(1)(C) cases)
- United States v. Dryden, 563 F.3d 1168 (10th Cir.) (same as Darton)
- United States v. Graham, 704 F.3d 1275 (10th Cir.) (treating Freeman's narrowest opinion as controlling for this circuit)