United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
the Court is defendant's Motion to Reconsider
Petitioner's Motion Pursuant to 18 U.S.C. §
3582(c)(2) and Amendments 782 & 788 (Dkt. # 146) based on
the holding in United States v. Mowery, 512
Fed.Appx. 824 (2013). Defendant argues that the Court erred when
it found that Amendment 782 to the United States Sentencing
Guidelines would not have lowered defendant's advisory
March 23, 2015, defendant filed a motion for reduction of
sentence under § 3582(c)(2), wherein he asked the Court
to reduce his total offense level by two levels. Dkt. # 129.
The Court entered an order denying defendant's motion for
a reduction of sentence, Dkt. # 132, and provided the
following explanation for the denial of defendant's
At the original sentencing, the Court granted a two-level
§ 3553(a) downward variance from the prescribed
guideline range of 210 to 262 months to a range of 168 to 210
months, and imposed a sentence of 168 months. Based on the
instant conviction, Amendment 782 is applicable, providing
for a two-level reduction in the total offense level,
resulting in an amended guideline range of 168 to 210 months,
the minimum of which is the same as the sentence imposed.
Amendment 782 does not have the effect of lowering the
defendant's applicable guideline range due to the
operation of another guideline or statutory provision ((i.e.,
reduction of sentence by variance). Accordingly,
defendant's sentence is not eligible for reduction
pursuant to § 3582(c) and Amendment 782. See
USSG § 1B1.10(a)(2)(B), comment. (n.1(A)).
Id. at 1. This ruling was affirmed by the Tenth
Circuit Court of Appeals (Dkt. # 144) in May 2016.
2017, the defendant filed a motion to reconsider and apply
the two-level reduction in his total offense level under
Amendment 782 with an additional two-level reduction under
§ 3553(a). Defendant states that “[o]ther circuit
Courts have done the same when it came to cases with
Amendment 782 and a variance at sentencing.”
Court notes that § 3582(c)(2) directs that “in the
case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission. . .
the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the
extent that they are applicable, if such a reduction
is consistent with applicable policy statements issued by the
Sentencing Commission.” (emphasis added). The United
States Sentencing Commission Guidelines Manual directs that
“Exclusions. - a reduction in the defendant's term
of imprisonment is not consistent with this policy statement
and therefore is not authorized under 18 U.S.C. §
3582(c)(2) if. . . (B) an amendment listed in subsection (d)
does not have the effect of lowering the defendant's
applicable guideline range.” Further, Limitations and
Prohibitions on Extent of Reduction subsection (A) provides:
“Except as provided in subsection (B), the court shall
not reduce the defendant's term of imprisonment under 18
U.S.C. § 3582(c)(2) and this policy statement to a term
that is less than the minimum of the amended guideline range.
. .” In this case, defendant received a sentence which
is equal to the minimum term of imprisonment provided by the
amended guideline range; therefore, the Court cannot reduce
the term of imprisonment to a term less than what the
defendant has already received.
only exception to this rule is for cases in which the
government filed a motion under USSG §5K1.1, to reflect
substantial assistance to authorities, which is not
applicable in this case. The Court finds that a sentencing
reduction to less than the minimum of the amended guideline
range would not be consistent with applicable policy
statements issued by the Sentencing Commission and therefore
is not authorized under § 3582(c)(2). The Court finds
that it lacks statutory authority to reduce defendant's
sentence under § 3582(c)(2). See United States v.
Kurtz, 819 F.3d 1230, 1235 (10th Cir. 2016) (holding
that the court does not have statutory authority to reduce a
sentence to less than the amended guideline range outside the
exception for §5K1.1).
THEREFORE ORDERED that defendant's Motion to Reconsider
Petitioner's Motion Pursuant to 18 U.S.C. §
3582(c)(2) and Amendments 782 & 788 (Dkt. # 146) is
dismissed for lack of jurisdiction.
 It is unclear why defendant cites
Mowery as a basis for relief. Mowery does
not concern the application of a guideline amendment to a
defendant's sentence, and the primary issue in
Mowery was whether defense counsel's performance
was deficient when counsel advised a defendant to reject a
plea agreement under Fed. R. Crim. P. 11(c)(1)(C). The Tenth
Circuit denied the defendant's request for a certificate