from the United States District Court for the District of New
Mexico (D.C. No. 1:05-CR-02373-WJ-5)
on the briefs:[*]
C. Loonam, Assistant Federal Public Defender, Albuquerque,
New Mexico, for Defendant-Appellant.
P. Martinez, United States Attorney, and C. Paige Messec,
Assistant United States Attorney, Albuquerque, New Mexico,
BRISCOE, SEYMOUR, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
Jason Gutierrez is serving a 192-month term in federal
prison. After the United States Sentencing Commission amended
several of the guidelines under which he was sentenced, Mr.
Gutierrez filed a motion under 18 U.S.C. § 3582(c)(2),
asking the district court to reduce his sentence to 168
months. Instead, the district court reduced his sentence to
188 months, concluding it lacked authority to go any lower.
Mr. Gutierrez appeals. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm.
Gutierrez pled guilty in 2006 to one count of conspiracy to
possess with intent to distribute methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
and 846. A probation officer prepared a presentence
investigation report ("PSR") which assigned Mr.
Gutierrez a total offense level of 35 and a criminal history
category of IV, together yielding a United States Sentencing
Guidelines ("U.S.S.G." or the
"Guidelines") imprisonment range of 235 to 293
months. The PSR arrived at a criminal history category of IV
after concluding that Mr. Gutierrez had accrued seven
criminal history points, one of which was a
"recency" point added because Mr. Gutierrez
committed the current offense within two years of being
released from custody on a prior conviction. Ultimately,
however, the PSR determined that category IV
"substantially over-represented" Mr.
Gutierrez's criminal history and recommended that a
criminal history category of III would be more appropriate.
sentencing, the district court agreed with the PSR's
recommendation and granted Mr. Gutierrez a downward departure
to criminal history category III, pursuant to
U.S.S.G. § 4A1.3(b)(1). The court also sentenced Mr.
Gutierrez using a total offense level of 34, rather than 35,
"to account for disparity with other defendants."
These alterations yielded a Guidelines imprisonment range of
188 to 235 months. On April 30, 2007, the district court
sentenced Mr. Gutierrez to 192 months in prison and five
years of supervised release.
the next seven years, the United States Sentencing Commission
("Commission") amended the Guidelines in several
ways relevant to this appeal. In 2010, the Commission issued
Amendment 742, which eliminated the use of recency points in
calculating a defendant's criminal history category.
See U.S.S.G. app. C, vol. III, amend. 742, Reason
for Amendment, at 355-56. The Commission did not make
Amendment 742 retroactive.
2011, the Commission issued Amendment 759, which modified
U.S.S.G. § 1B1.10, the policy statement governing
sentence-reduction proceedings under 18 U.S.C. §
3582(c)(2). See U.S.S.G. app. C, vol. III, amend.
759. Section 3582(c)(2) allows a district court to reduce a
defendant's sentence if the sentence was based on a
Guidelines range that the Commission has subsequently
lowered, so long as the reduction is consistent with the
strictures of § 1B1.10. See 18 U.S.C. §
3582(c)(2). Section 1B1.10 provides that, in considering a
sentence reduction, a district court must recalculate the
defendant's Guidelines range in light of any applicable
retroactive amendments and may reduce the defendant's
sentence to a term that falls within that amended range.
See U.S.S.G. § 1B1.10(a)-(b). Amendment 759
significantly impacted the courts' discretion during this
Amendment 759 went into effect, § 1B1.10 included a
meaningful exception to the requirement that a reduced
sentence must fall within the amended range. Specifically, it
endorsed sentence reductions below the amended Guidelines
range if the defendant's original sentence had been below
the then-applicable Guidelines range. In such cases, district
courts were free to reduce the sentence below the amended
range by a number of months comparable to the original
downward departure. See U.S.S.G. app. C, vol. III,
amend. 759, Reason for Amendment, at 420. Amendment 759
curtailed this practice substantially, modifying §
1B1.10 such that a district court now may reduce a
defendant's sentence below the amended Guidelines range
only if the defendant originally received a below-Guidelines
sentence for providing substantial assistance to the
government. See id.; see also id. §
in 2014, the Commission issued Amendment 782, which reduced
by two the offense levels ascribed to many drug offenses
under U.S.S.G. § 2D1.1, including Mr. Gutierrez's
offense. See U.S.S.G. supp. to app. C, amend. 782.
The Commission made Amendment 782 retroactive, and thus
available as a potential basis for a sentence reduction
pursuant to § 3582(c)(2). See U.S.S.G. supp. to
app. C, amend. 788, Reason for Amendment, at 86; see also
id. § 1B1.10(d).
February 24, 2015, Mr. Gutierrez filed a pro se motion
seeking a sentence reduction under § 3582(c)(2) in light
of Amendment 782, and seeking appointment of counsel. Counsel
was appointed soon thereafter. The government conceded that
Mr. Gutierrez was eligible for a sentence reduction because
Amendment 782 lowered his total offense level from 35 to 33,
and the parties entered a stipulation to that effect. The
parties disagreed, however, as to whether Mr. Gutierrez's
amended Guidelines range should be calculated using a
criminal history category of III or IV. Under category III,
his amended range would be 168 to 192 months; under category
IV, it would be 188 to 192 months. Mr. Gutierrez filed a
"Motion to Have [the District] Court Impose a Reduced