United States v. Mowery, 694 F. App'x 638

Background

In 2009 Mowery pleaded guilty to possession with intent to distribute methamphetamine; PSR set Guidelines range at 168–210 months (total offense level 34, CH II).
District court imposed a 168-month sentence, split on the judgment as 121 months for the underlying offense and 47 months attributable to a § 3147(1) enhancement (required to be consecutive).
Amendment 782 reduced base offense levels (later made retroactive by Amendment 788), which would lower Mowery’s base level from 34 to 32 and his amended Guidelines range to 135–168 months after accounting for adjustments.
Mowery moved under 18 U.S.C. § 3582(c)(2) for resentencing based on Amendment 782; the district court initially dismissed, concluding Amendment 782 did not produce a lower sentencing range than the sentence previously imposed.
On reconsideration the government conceded eligibility, but the district court again denied relief, reasoning the 121-month portion attributed to the underlying offense was below the amended Guidelines minimum (relying on United States v. Kurtz).
The Tenth Circuit reversed, holding the proper comparison is the defendant’s total original sentence (168 months), not the portion attributed to the underlying offense, and remanded for resentencing procedures under § 3582(c)(2).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court had authority under 18 U.S.C. § 3582(c)(2) to resentence Mowery after Amendment 782	Mowery: Amendment 782 lowered the applicable Guidelines range (to 135–168), making him eligible for resentencing	Government (initially): Amendment 782 did not produce a lower range than the sentence actually imposed; District court: compared the 121-month portion to amended range and found ineligibility	Reversed: Court held eligibility exists because Amendment 782 lowered the applicable Guidelines range and Mowery’s total original sentence (168 months) is within/above the amended low end (135)
Whether the court should compare only the portion of the original sentence attributable to a § 3147(1) enhancement or the total sentence when assessing eligibility under § 3582(c)(2)	Mowery: Eligibility must be assessed against the defendant’s total original sentence, since § 3147(1) is an enhancement and not a separate conviction	District court: Must compare the months attributed to the underlying offense (121) to the amended guideline minimum, per Kurtz	Reversed: Comparison is against the total punishment; the § 3147(1) attribution does not change that analysis
Whether a § 3147(1) enhancement creates a separate sentence for purposes of § 3582(c)(2) eligibility	Mowery: § 3147(1) is a sentencing enhancement and does not create a separate offense or independent sentence for this analysis	Government/district court: Treated the attributed months as the dispositive measure, disqualifying Mowery under Kurtz	Held: § 3147(1) is an enhancement; the sentencing attribution requirement does not alter that the court must look to total sentence
Effect of precedent limiting reductions to not below the amended guideline range	District court relied on Kurtz to prevent a reduction where part of the previously imposed months for the underlying offense fell below the amended guideline minimum	Mowery: Kurtz was misapplied when focusing on the attributed portion instead of total sentence	Held: Kurtz does not support comparing only the attributed portion; proper application permits § 3582(c)(2) eligibility here

Key Cases Cited

United States v. Rhodes, 549 F.3d 833 (10th Cir.) (standard of de novo review for § 3582(c)(2) eligibility)
Dillon v. United States, 560 U.S. 817 (2010) (eligibility under § 3582(c)(2) requires that the Guideline range was subsequently lowered)
United States v. Kurtz, 819 F.3d 1230 (10th Cir.) (district court may not reduce a sentence below the minimum of the amended guideline range; discussed and distinguished)
United States v. Browning, 61 F.3d 752 (10th Cir.) (§ 3147 is a sentencing enhancement, not a separate offense)