United States v. Valdez, 492 F. App'x 895

Valdez pled guilty to conspiracy to possess with intent to distribute cocaine and crack on March 31, 2006, with a 25% downward departure for substantial assistance, yielding 202 months’ imprisonment.
At original sentencing the court reduced Valdez’s criminal history from III to II, finding III significantly over-represented the danger posed by Valdez.
Amendment 706 (2007) lowered crack base offense levels retroactively, but the district court denied a §3582(c) motion based on Amendment 706 because drug quantities did not permit a reduction; this was affirmed on direct appeal.
Amendment 750 (2011) retroactively implemented the Fair Sentencing Act; Valdez sought a sentence of 176 months via a joint motion for retroactive application.
The district court, after briefing, held that §1B1.10(b)(2)(B) as amended prohibits a further reduction below the amended guideline range on the basis of a prior criminal history departure.
The district court ultimately declined to reduce Valdez’s sentence further and maintained a 176-month sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
May Valdez receive a further §3582(c)(2) reduction for criminal history downshift?	Valdez argues CH downshift should be recognized in §3582(c)(2) reduction.	Govt contends §1B1.10(b)(2)(B) limits reductions to substantial-assistance reductions; CH downshift not allowed.	No; further reduction based on CH departure not authorized.

United States v. Williams, 575 F.3d 1075 (10th Cir. 2009) (de novo review of §3582(c)(2) authority)
Dillon v. United States, 130 S. Ct. 2683 (U.S. 2010) (§3582(c)(2) is not a resentencing; narrow authority)
United States v. Osborn, 679 F.3d 1193 (10th Cir. 2012) (amended guidance for §1B1.10 permissions)
United States v. Rivera, 662 F.3d 166 (2d Cir. 2011) (pre-departure range governs §1B1.10 scope)
United States v. McGee, 615 F.3d 1287 (10th Cir. 2010) (§3582(c)(2) proceedings not resentencing)