665 F. App'x 439
6th Cir.2016Background
- Kenneth Sloss pled guilty to conspiracy to distribute over 1 kg of heroin and was sentenced to 240 months imprisonment (total offense level 34, CHC III).
- The district court imposed a five-month upward variance (to 240 months) for Sloss’s failure to appear at sentencing.
- On the Government’s Rule 35(b) motion for substantial assistance, the court reduced Sloss’s sentence to 144 months (a 96-month reduction).
- Sloss moved under 18 U.S.C. § 3582(c)(2)/Amendment 782; the Probation Office calculated an amended guideline range of 151–188 months and recommended 116 months.
- Sloss argued for 97 months based on subtracting the Rule 35(b) months; the Government and Probation recommended 116 months (reducing the amended high-end plus five months by 40%); the district court adopted 116 months.
- Sloss appealed, arguing the court erred by (1) including the earlier five‑month upward variance in the § 3582(c)(2) calculation and (2) using a percentage-based rather than a months-based method to make the reduction comparable to the Rule 35(b) reduction.
Issues
| Issue | Sloss's Argument | Government/Probation's Argument | Held |
|---|---|---|---|
| Whether the district court could factor the five-month upward variance into the § 3582(c)(2) reduction calculation | The five-month upward variance should not be included; Pembrook prohibits factoring guideline departures into the § 3582(c)(2) calculus | The five-month variance may be considered at the discretionary second step; Pembrook only governs step-one guideline range calculation | Court affirmed: Pembrook does not bar considering the variance at step two; district court did not abuse discretion |
| Whether the court was required to use the same methodology (months vs. percentage) to make the § 3582(c)(2) reduction comparable to the Rule 35(b) reduction | The § 3582(c)(2) reduction should mirror the Rule 35(b) reduction in methodology (subtract months originally granted) | The court has discretion to choose a reasonable method; comparable reduction can be achieved by percentage | Court affirmed: no required methodology; percentage-based approach was permissible and reasonable |
| Whether the district court exceeded its discretion by reducing sentence differently than Sloss proposed | Sloss contends his proposed arithmetic (188 + 5 − 96) yields the correct comparable reduction | Government/Probation used (188 + 5) reduced by 40% to account for the earlier Rule 35 percentage reduction | Court affirmed district court’s discretionary choice; no abuse of discretion |
| Whether § 3582(c)(2) creates a right to a reduction or limits district-court discretion in method | Implicitly, Sloss argues the statute requires a specific comparable method | Government: § 3582(c)(2) is permissive and district court discretion governs the extent and method of reduction | Held: § 3582(c)(2) is permissive; district courts have broad discretion in whether and how to reduce sentences |
Key Cases Cited
- United States v. Pembrook, 609 F.3d 381 (6th Cir. 2010) (guideline range for § 1B1.10 step one is the pre-departure range)
- United States v. Webb, 760 F.3d 513 (6th Cir. 2014) (standard of review: abuse of discretion for § 3582(c)(2) rulings)
- United States v. Watkins, 625 F.3d 277 (6th Cir. 2010) (describing two-step § 3582(c)(2) inquiry)
- Dillon v. United States, 560 U.S. 817 (Sup. Ct.) (interpretation of § 3582(c)(2) framework)
- United States v. Curry, 606 F.3d 323 (6th Cir. 2010) (§ 3582(c)(2) does not create a right to a reduced sentence; district court discretion)
- United States v. Chambliss, [citation="398 F. App'x 142"] (6th Cir. 2010) (upholding discretionary reductions below amended guideline range)
- United States v. Hayes, 762 F.3d 1300 (11th Cir. 2014) (district court discretion in methodology for calculating substantial-assistance departures)
- United States v. Fennell, 592 F.3d 506 (4th Cir. 2010) (recognizing multiple reasonable methods for calculating comparable reductions on resentencing)