United States Court of Appeals, District of Columbia Circuit
Submitted May 29, 2018
from the United States District Court for the District of
Columbia No. 1:11-cr-00313-1
Akers, pro se, filed the brief for appellant.
Before: Millett, Pillard, and Katsas, Circuit Judges.
Akers, proceeding pro se, appeals the district
court's order denying his motion to reduce his sentence
under 18 U.S.C. § 3582(c)(2). We affirm.
2012, Akers pleaded guilty to unlawful distribution of more
than 28 grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii). Because this was
Akers' third conviction for a felony controlled-substance
offense, his offense level and criminal history were
calculated under the career-offender provision of the
Sentencing Guidelines, U.S.S.G. § 4B1.1, which yielded
an advisory sentencing range of 188-235 months of
imprisonment. However, under Federal Rule of Criminal
Procedure 11(c)(1)(C), Akers and the government entered into
a plea agreement providing for a sentence of 156 months.
Under that rule, a district court must impose a sentence
agreed upon by the parties if it accepts a plea agreement.
Here, the district court accepted the plea agreement,
departed from the Guidelines, and imposed the agreed-upon
sentence of 156 months.
2016, Akers moved to reduce his sentence under 18 U.S.C.
§ 3582(c)(2), based on Amendment 782 to the Sentencing
Guidelines. This amendment, which took effect on November 1,
2014 and applies retroactively, reduced by two levels the
base offense level for most drug-trafficking offenses,
including the offense of which Akers was convicted.
See U.S.S.G. app. C, amends. 782 (reduction), 788
(retroactivity). The district court denied Akers' motion,
concluding that Akers was ineligible for a sentence reduction
because Amendment 782 did not lower the sentencing range
applicable to career offenders. Akers appealed, and our
review is de novo. See United States v.
Berry, 618 F.3d 13, 16 (D.C. Cir. 2010).
may reduce a sentence if it was "based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission, " and the reduction is "consistent with
applicable policy statements issued by the Sentencing
Commission." 18 U.S.C. § 3582(c)(2); see also
In re Sealed Case, 722 F.3d 361, 364 (D.C. Cir. 2013).
Although Akers' sentence was "based on" the
Sentencing Guidelines, see Hughes v. United States,
584 U.S. -, No. 17-155, slip op. at 9 (June 4, 2018), the
applicable sentencing range still was not "subsequently
. . . lowered" by the Sentencing Commission. In this
appeal, Akers does not challenge the district court's
determination that he is a career offender. The
career-offender guideline "requires taking the greater
offense level between the offense level calculated
independent of § 4B1.1, and the career offender offense
level, which is based on the statutory maximum."
United States v. Lawrence, 662 F.3d 551, 559 (D.C.
Cir. 2011). Where, as here, the career-offender provision
produces a higher offense level, the court calculates the
defendant's sentencing range by "adopt[ing] the
offense level for a career offender . . . and a criminal
history category of VI." United States v.
Tepper, 616 F.3d 583, 587 (D.C. Cir. 2010).
782, however, did not lower the offense levels applicable to
career offenders. Rather, it impacted only offense levels
calculated under the drug trafficking guideline, U.S.S.G.
§ 2D1.1. Accordingly, the drug trafficking guideline
"played no role in determining" Akers'
sentencing range. Tepper, 616 F.3d at 587. Thus, the
fact that Amendment 782 lowered the sentencing range for
Akers' underlying offense does not support a sentence
reduction under Section 3582(c)(2). See id. (finding
defendant ineligible for sentence reduction when sentencing
range was determined by career-offender provision, not crack
cocaine guideline amended by Sentencing Commission).
a reduction of Akers' sentence would not be
"consistent with applicable policy statements issued by
the Sentencing Commission." 18 U.S.C. § 3582(c)(2).
The governing policy statement is entitled "Reduction in
Term of Imprisonment as a Result of Amended Guideline
Range." In relevant part, it provides that, "[i]n a
case in which a defendant is serving a term of imprisonment,
and the guideline range applicable to that defendant has
subsequently been lowered as a result of an amendment to the
Guidelines Manual[, ] . . . any such reduction in the
defendant's term of imprisonment shall be consistent with
this policy statement." U.S.S.G. § 1B1.10(a)(1).
The statement further provides that "[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 . . . [an applicable
amendment] does not have the effect of lowering the
defendant's applicable guideline range." U.S.S.G.
§ 1B1.10(a)(2)(B). A defendant's "applicable
guideline range" is the one "produced from the
correct application of the Guidelines, " which, in
Akers' case, is the career-offender range. See
Berry, 618 F.3d at 18. Because Amendment 782 does not
lower the career-offender range, a sentence reduction would
be inconsistent with the above policy statement. See
id. at 17-18 (because amendment did not lower
career-offender guideline, reduction in sentence was
inconsistent with Guidelines Section 1B1.10(a)(2)(B) and thus
unauthorized by 18 U.S.C. § 3582(c)(2)).
therefore hold that Akers was ineligible for a sentence
reduction under Section 3582(c)(2), because Amendment 782 did
not lower the sentencing range in the career-offender
provision of the Sentencing Guidelines. In so doing, we join
our sister circuits that have addressed this issue.
See, e.g., United States v.
Thomas, 775 F.3d 982, 983 (8th Cir. 2014) (per curiam)
("Amendment 782 . . . did not lower the sentencing range
established for a career offender by § 4B1.1.");
see also United States v. Martin, 867 F.3d 428, 433
(3d Cir. 2017) (same); United States v. Quintanilla,
868 F.3d 315, 321 (5th Cir. 2017) (per curiam) (same);