101 F.3d 80
9th Cir.
1996

Lead Opinion

BOOCHEVER, Circuit Judge:

The United States appeals the district court’s reduction of the prison term imposed on Gregory Alan Etherton (“Etherton”) following the revocation of his supervised release to time served. We affirm.

I. FACTS AND PROCEDURAL HISTORY

In February of 1991 Etherton pleaded guilty to a one-count information charging him with conspiraсy to manufacture and distribute more than 50 marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. The marijuana equivalency guidelines in effect at the time treаted each marijuana plant as equivalent to one kilogram of dry marijuana. Etherton’s 683 marijuana plants were thus equivalent to 683 kilograms of dry marijuana. [ER 9] See U.S.S.G. § 2Dl.l(c) (Nov.1994) (amended 1995). After adjustments, the final guideline range called for 51-68 months in prison.

*81The district court sentenced Etherton to 51 months in prison to be followed by a three-year term of supervised release subject to standard and special conditions. [ER 6-7] Etherton completed his prison term and began serving his supervised-release term in March 1995. Three months later, Etherton’s probation officer informed the district court that Etherton hаd violated his release conditions. Following a hearing at which Ether-ton admitted to violating the terms of his supervised release, the district court rеvoked Etherton’s supervised release and sentenced him to seven months in prison.

In November of that year the Sentencing Commission issued a retroactive amendment reducing the marijuana plant equivalency ratio to treat each marijuana plant as equivalent to 100 grams of mаrijuana. U.S.S.G. §§ 1B1.10, 2Dl.l(c)(E) (Nov.1995). Ether-ton filed a motion pursuant to 18 U.S.C. ‍​​‌‌​​​‌‌​‌‌‌‌​‌‌‌​​​‌‌​‌​‌​‌‌​​‌‌​​‌‌‌​‌‌​​‌​‌‌‍§ 3582(c) requesting that the district court reduce his release-violation prison term to time served. Sеction 3582(c)(2) grants the court discretion to modify a previously imposed term of imprisonment, when the sentencing range has subsequently been lowerеd by the Sentencing Commission.

The district court held a hearing at which the Government argued that section 3582(c) did not grant the court authority to reduce thе sentence for the supervised-release violation. The court issued a summary order reducing the seven-month term to time served.

II. ANALYSIS

The question presented is whether the district court had discretion under section 3582(c)(2) to reduce Etherton’s sentence pursuant to the revocation of suрervised release. Section 3582(c)(2) provides in relevant part that:

The court may not modify & term of imprisonment once it has been imposed except that—
(2) in the case of a defendant who has been sentenced to a tеrm of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the dеfendant ..., the court may reduce the term of imprisonment. ...

The sentencing range for Etherton’s underlying offense, conspiracy to manufacture and distribute marijuana, was substantially reduced when the. Sentencing Commission amended the marijuana plant equivalency ratio. Under the original guidelines, Etherton served 51 months, the minimum sentence for a base level of 28 with six points of reduction and a criminal history score of III. He was then subject to three years supervised release. Under the amended guidelines, Etherton’s base level would be 22, which, with the same reductions, would call for a sentenсe of 27-33 months. See U.S.S.G. § lB1.10(b) (Nov.1995) (“In determining whether ... a reduction ... is warranted ... under 18 U.S.C. § ‍​​‌‌​​​‌‌​‌‌‌‌​‌‌‌​​​‌‌​‌​‌​‌‌​​‌‌​​‌‌‌​‌‌​​‌​‌‌‍3582(c)(2), the court should consider the sentence that it would have imposed” under the аmended guidelines.).

The seven months imprisonment is not punishment -for a new substantive offense, rather “it is the original sentence that is executed when the defendant is returned to prison after a violation of the terms of ... supervised release.” United States v. Pas-kow, 11 F.3d 873, 881 (9th Cir.1993). We held in Paskow that “a term of supervised release ... is ‘simply part оf the whole matrix of punishment which arises out of a defendant’s original crimes.’ ” Id. at 883 (citation omitted). Moreover, in Koon v. United States, — U.S.-, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the Supreme Court recognized that even in this era of the Sentencing Guidelines, district courts retain broad sentencing discretion. — U.S. at-, 116 S.Ct. at 2046 (“[a] district court’s decision ... will in most cases be due substantial deference, for it embоdies, the traditional exercise of discretion by a sentencing court”). In light of Paskow and the sentencing discretion granted to district courts in Koon, we interpret the statute’s directive that “the court may reduce the term of imprisonment” as extending to the entirety ‍​​‌‌​​​‌‌​‌‌‌‌​‌‌‌​​​‌‌​‌​‌​‌‌​​‌‌​​‌‌‌​‌‌​​‌​‌‌‍of the original sentence, including terms of imprisonment imposed upon revocation of supеrvised release.

Because Etherton had been sentenced “based on a sentencing range that has subsequently been lowered,” the cоurt had authority to exercise its discretion to reduce the sentence under section 3582(c)(2). In the *82short order reducing the sentence, the court referred to the defendant’s motion under 18 U.S.C. § 3582(c) without specifying a subsection. The only applicable portion of section 3582(c) is subsection (2), which specifies that the court “may reduce the term of imprisonment.” On the basis of that reference, it is apparent that the court exerсised its discretion, as authorized by the statute, in reducing the sentence.

Alternatively, Etherton argues that the district court had authority to reduce his sentеnce under 18 U.S.C. § 3585(b) by giving him credit for the extra 24 months he served on his original sentence. Because we find that the district court properly exercised its discretion to reduce the sentence under 3582(c)(2), we need hot reach this second argument.

Accordingly, we affirm.





Dissenting Opinion

T.G. NELSON, Circuit Judge,

dissenting:

At the time Mr. Etherton was released by the district court, he had been sent back to prison for violating the terms of his supervised release. The statute the district judge relied on in releasing ‍​​‌‌​​​‌‌​‌‌‌‌​‌‌‌​​​‌‌​‌​‌​‌‌​​‌‌​​‌‌‌​‌‌​​‌​‌‌‍him provides that а district court may modify a term of imprisonment if it is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission_” 18 U.S.C. § 3582(e)(2).

The errоr in the majority’s analysis can be seen by asking and answering three simple questions: ■

1. What term of imprisonment was imposed on Mr. Etherton based on a sentеncing range subsequently lowered by the Commission? Answer: Fifty-one months, pursuant to § 2Dl.l(c).

2. What term of imprisonment was Mr. Etherton serving when released? Answer: Seven months for violation of supervised release, pursuant to § 7B1.4.

3. Was the sentencing range under § 7B1.4 lowered by the Commission? Answer: No.

The answers to these questions lеad inexorably to the conclusion that the term of imprisonment for violation ‍​​‌‌​​​‌‌​‌‌‌‌​‌‌‌​​​‌‌​‌​‌​‌‌​​‌‌​​‌‌‌​‌‌​​‌​‌‌‍of supervised release was- not subject to modification by thе district court under § 3582(e)(2).

We are not free to ignore the terms of the statute by conflating “sentence” with “term of imprisonment.” While it is correct to say that the -incarceration imposed for violation of supervised release can be considered to be an element of the original sentence, by no stretch of logic, language or precedent can Mr. Etherton’s later incarceration be considered part of the originаl term of imprisonment based on a sentencing range lowered by the Commission. The seven-month term was separately imposed and was to be separately served based on considerations having nothing to do with the marijuana plant equivalency addressed in Amendment 516.

The district court lacked authority to rеduce the term of imprisonment imposed for violation of supervised release. The district court’s unquestioned discretion in sentencing matters сannot supply statutory authority to reduce a term of imprisonment which is otherwise lacking. Allowing defendants to bank time served in this manner removes any incentive for complying with the terms of supervised release.

I respectfully dissent.