United States v. Jenkins , 668 F. App'x 852 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 15, 2016
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 16-7016
v. (D.C. No. 6:14-CR-00014-RAW-1)
(E.D. Okla.)
JAMES HOWARD JENKINS, II,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MORITZ, Circuit Judges. **
Defendant-Appellant James Howard Jenkins, II, appeals from the district
court’s denial of his motion for a sentence reduction based upon Amendment 782
to the United States Sentencing Guidelines. 18 U.S.C. § 3582(c)(2). Our
jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), and we
reverse.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
In 2014, Mr. Jenkins pleaded guilty to possession with intent to distribute
methamphetamine. The plea agreement recited: “The United States agrees to join
with defense counsel in agreeing that U.S.S.G. § 2D1.1(c)(7) applies to the base
offense [level] calculation under U.S.S.G. § 2D1.1(a)(5) of the advisory
guidelines.” 2 R. 12. Mr. Jenkins was sentenced in accordance with the terms of
the plea agreement. Given a base offense level of 26 contained in referenced
guideline and an adjusted offense level of 23 (criminal history category of VI),
Mr. Jenkins was sentenced to 92 months’ imprisonment and four years’
supervised release. The guideline range was 92–115 months. Mr. Jenkins
appealed, but challenged a condition of supervised release. His direct appeal was
dismissed because it was barred by his appellate waiver. United States v. Jenkins,
608 F. App’x 710 (10th Cir. 2015).
The district court denied Mr. Jenkins’ motion for sentence reduction
explaining:
A review of Mr. Jenkins’ sentence in this case revealed that his 92
month sentence was based upon a binding plea agreement to a
specific sentencing range of 92 to 115 months, pursuant to Federal
Criminal Rule 11(c)(1)(C), which was accepted by the Court.
Therefore, Mr. Jenkins is not eligible to receive a reduction based on
retroactive Guideline Amendment 782.
I R. 30. Our review is for an abuse of discretion, considering any reason supplied
by the district court for the denial. United States v. Verdin-Garcia, 824 F.3d
1218, 1221 (10th Cir. 2016). A decision based upon a legal error constitutes an
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abuse of discretion. Koon v. United States, 518 U.S. 81, 100 (1996).
The government has maintained that the sentence was based on the
guidelines and that although the district court had the discretion to reduce the
sentence, it should not because Mr. Jenkins would receive a windfall. I R. Supp.
1; Aplee Br. 11–15; Freeman v. United States, 564 U.S. 522, 539 (2011)
(Sotomayor, J. concurring); United States v. Graham, 704 F.3d 1275, 1278 (10th
Cir. 2013). We agree with the latter proposition given that the Rule 11(c)(1)(C)
plea agreement explicitly identified the applicable base offense level in the drug
quantity table rather than a range.
The government argues that Mr. Jenkins has waived the issue of whether
the sentence is based upon the sentencing guidelines because he did not raise it in
his opening brief. Aplee. Br. at 11. In his reply brief, Mr. Jenkins argues that if
he had counsel on appeal, he could ask counsel to file a motion to supplement his
opening brief with the argument. We construe this as a motion to supplement his
opening brief with the argument, and grant it. Given this record, it is apparent
that the government was aware of this issue, having taken the same position in the
district court and flagging it on appeal. The district court’s statement that the
plea agreement specified a 92–115 month sentence is incorrect and indeed the
district court has the power to decide the motion given Freeman.
Accordingly, we reverse so the district court may exercise its discretion
regarding the motion on remand. Therefore, it is unnecessary to address Mr.
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Jenkins’ contentions on appeal that he did not waive his variance rights and that
he received ineffective assistance of counsel, arguments the government
maintains are both procedurally barred (as not raised below) and not cognizable
in this proceeding. See Dillon v. United States, 560 U.S. 817, 831 (2010). We
express no opinion on the ultimate outcome of the motion.
REVERSED and REMANDED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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