APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Paul J. Barbadoro, U.S. District Judge].
John T. Ouderkirk, Jr. for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.
Judith H. Mizner, Assistant Federal Public Defender for the Federal Public Defender for the Districts of Massachusetts, New Hampshire and Rhode Island Federal Defender, amicus curiae.
Before Howard, Stahl, and Thompson, Circuit Judges.
THOMPSON, Circuit Judge.
Appellant Wyman Hogan ("Hogan") was sentenced to 262 months' imprisonment for crack-cocaine related offenses in 2002. When the United States Sentencing Guidelines ("U.S.S.G.") were amended in 2007 to reduce crack-cocaine base offense levels, Hogan moved for and was granted a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). The guidelines were amended again in 2011, retroactively lowering the base offense levels further for crack-cocaine offenses. Hogan again moved for a reduction of his sentence under § 3582(c)(2), but the district court denied the motion. Hogan appeals, arguing the district court erred in concluding he was ineligible to receive that reduction. We affirm.
In 2001, a jury found Hogan guilty of conspiracy to possess with intent to distribute and distribution of fifty grams or more of cocaine and cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and possession of cocaine base, in violation of 21 U.S.C. § 844(a). At Hogan's sentencing in 2002, the district court determined his base offense level ("BOL") was 34. After applying a three-level increase for an official victim enhancement and a two-level increase for a leadership role enhancement, as well as a downward adjustment of two levels for acceptance of responsibility, the court found Hogan's total offense level ("TOL") was 37. Although the Presentence Investigation Report ("PSR") determined Hogan's criminal history category ("CHC") was VI, Hogan requested and the court granted a downward departure pursuant to U.S.S.G. § 4A1.3. The court departed to a CHC of III, on the basis that the CHC of VI "over-represent[ed] the seriousness" of Hogan's criminal history. That departure reduced Hogan's advisory guideline range to 262 to 327 months and the court sentenced Hogan to 262 months and five years of supervised release.
Six years later, Hogan moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), which permits district courts to modify previously imposed sentences in certain circumstances to take into account retroactive guideline amendments. Hogan's motion was based on a 2007 amendment to the Sentencing Guidelines which retroactively reduced base offense levels for crack-cocaine offenses by two levels. See U.S.S.G. app. C, amends. 706, 713 (effective Nov. 1, 2007); United States v. Caraballo, 552 F.3d 6, 8 (1st Cir. 2008) (noting the amendment "adjust[ed] downward by two levels the base offense level ascribed to various quantities of crack cocaine" in the Guidelines Manual drug quantity table). The government and Hogan stipulated to the retroactive application of the sentencing guideline amendment and agreed Hogan's BOL should be reduced from 34 to 32, which reduced his TOL from 37 to 35, and yielded a guideline range of 210 to 262 months. The parties proposed the amended sentence should be 210 months. The district court concluded that the version of U.S.S.G. § 1B1.10 in effect at the time allowed it to apply the same departure in Hogan's CHC --from CHC VI to CHC III -- it had applied at his initial sentencing. See U.S.S.G. § 1B1.10(b)(2) (pre-2011 amendments) (providing that "[i]f the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, " the defendant could be granted "a reduction comparably less than the amended guideline range"). Applying the CHC departure, the court determined the revised guideline range was 210 to 262 months and agreed with the parties that Hogan's sentence should be reduced to 210 months.
In 2011, the Sentencing Commission adopted Amendments 750 and 759, both effective November 1, 2011. Amendment 750 retroactively implemented the Fair Sentencing Act of 2010 ("FSA"), which reduced the statutory penalties for crack-cocaine offenses. See Fair Sentencing Act of 2010 § 2(a), Pub. L. No. 111-220, 124 Stat. 2372; U.S.S.G. app. C, amend. 750 (effective Nov. 1, 2011). The change in drug amounts reduced the "100-to-1 crack-to-powder ratio to 18-to-1." Dorsey v. United States, 132 S.Ct. 2321, 2329 (2012). While Amendment 750 made further retroactive reductions to the crack-cocaine guidelines, Amendment 759 limited the availability of relief for prisoners who received below-guideline sentences in the first instance.
As part of Amendment 759, the Sentencing Commission amended policy statement § 1B1.10(b)(2). Prior to Amendment 759, § 1B1.10(b)(2)(A) prohibited reducing a defendant's sentence under 18 U.S.C. § 3582(c)(2) "to a term that is less than the minimum of the amended guideline range[.]" U.S.S.G. § 1B1.10(b)(2)(A) (2010). There was an exception to this rule under § 1B1.10(b)(2)(B), which allowed a "reduction comparably less than the amended guideline range" in cases where "the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing." Id. § 1B1.10(b)(2)(B) (2010). Amendment 759 kept § 1B1.10(b)(2)(A) intact, but changed the exception found in § 1B1.10(b)(2)(B) under which a court could further reduce a defendant's sentence. Now, § 1B1.10(b)(2)(B) allows a reduction comparably less than the amended guideline range only if the below-guideline sentence was due to the defendant's substantial assistance to the government. Specifically, newly-amended § 1B1.10(b)(2)(B) provides that if a defendant's term of imprisonment "was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing pursuant to a government motion to reflect the defendant's substantial assistance to authorities, a reduction comparably less than the amended guideline range . . . may be appropriate." U.S.S.G. § 1B1.10(b)(2)(B) (2011). In addition, the Commission amended Application Note 1 to § 1B1.10(b)(2) which says that the "guideline range" consisting of "the offense level and criminal history category determined pursuant to § 1B1.10(a) . . . is determined before consideration of any departure provision in the Guidelines Manual or any variance." Id. § 1B1.10 cmt. n.1.
Based on the retroactive application of the 2011 guideline amendments, Hogan moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). This time, the district court denied Hogan's motion. The court concluded that although the retroactive application of the 2011 guideline amendments resulted in a two-level reduction in Hogan's BOL from 32 to 30, and a corresponding reduction in his TOL from 35 to 33, the amended version of § 1B1.10(b)(2) did not entitle Hogan to a "reduction comparably less" than his amended guideline because he had been sentenced to a below-guideline sentence. United States v. Hogan, 00-CR-100-01-PB, 2011 WL 6337629, at *2 (D.N.H. Dec. 16, 2011).
The revised version of § 1B1.10(b)(2) under Amendment 759, the court said, did not permit it to apply the CHC III departure in calculating Hogan's guideline range -- the same departure the court had applied in 2002 at his initial sentencing and in 2008 when granting Hogan's motion to reduce his sentence based on the pre-2011 amendments. The court applied Hogan's original CHC (VI), instead of the reduced CHC (III), and a TOL of 33 (reduced per the 2011 guideline amendments), resulting in an amended guideline range of 235 to 293 months. Because the amended guideline range exceeded Hogan's modified sentence of 210 months, the court found the language of the newly-amended § ...