United States v. Jeffrey Michael Jenney ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11753
Non-Argument Calendar
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D.C. Docket No. 0:04-cr-60004-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY MICHAEL JENNEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 30, 2015)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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In March 2005, Jeffrey Jenney pled guilty to conspiracy to possess with
intent to distribute at least 1,000 kilograms of marijuana, in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(A) (Count 3), conspiracy to commit money laundering, in
violation of 18 U.S.C. §§ 1956(h) and (a)(1)(A) (Count 4), and witness tampering,
in violation of 18 U.S.C. § 1512(b)(3) (Count 66). At sentencing, the District
Court determined that, under the Sentencing Guidelines, Jenney’s total offense
level was 38 and his criminal history category II, which yielded a sentence range of
262-327 months’ imprisonment. The court then sustained Jenney’s objection to
the criminal history category II on the ground that category II overstated the
seriousness of his criminal history and departed downward under U.S.S.G. § 4A1.3
to criminal history category I. This lowered the sentence range to 235-293 months.
Using that range, the court sentenced Jenney to concurrent sentences: 235 months
on Counts 3 and 4 and 120 months on Count 66.
In January 2015, Jenney moved the District Court for a reduction of sentence
pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 782 to the Sentencing
Guidelines, arguing that the amendment reduced his total offense level to 36 and
that based on that level and criminal history category I, his sentence range would
be reduced to 188-235 months. The court rejected Jenney’s argument that it
should calculate his amended guideline sentence range based on a category I
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criminal history, but reduced his sentences on Counts 3 and 4 to 210 months’
imprisonment.
Jenny appeals the reduced sentences on those two counts, arguing that the
court erred in using a criminal history category II, instead of a criminal history
category I, in calculating his amended sentence range. We reject his argument and
accordingly affirm.
A district court may modify a term of imprisonment in the case of a
defendant who was sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing Commission. 18
U.S.C. § 3582(c)(2). Amendment 782 provides for a two-level reduction in the
base offense level for most drug offenses. U.S.S.G. App. C, amend. 782. Any
reduction, however, must be “consistent with applicable policy statements issued
by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The policy statements
provide that the court cannot reduce a defendant’s term of imprisonment under 18
U.S.C. § 3582(c)(2) “to a term that is less than the minimum of the amended
guideline range” unless the defendant received a departure for substantial
assistance. U.S.S.G. § 1B1.10(b)(2)(A) & (B).
The commentary to U.S.S.G. § 1B1.10 provides that eligibility under 18
U.S.C. § 3582(c)(2) is triggered only if the amendment lowers the “applicable
guideline range”, that is, “the guideline range that corresponds to the offense level
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and criminal history category determined pursuant to § 1B1.1(a), which is
determined before consideration of any departure provision in the Guidelines
Manual or variance.” Id. § 1B1.10, comment. (n.1(A)). The commentary further
states that if the defendant received a term of imprisonment “outside the guideline
range at the time of sentencing, the limitation prohibiting” the court from reducing
the sentence below the amended guideline range still applies. Id. § 1B1.10,
comment. (n.3).
Section 4A1.3 provides for departures based on the inadequacy of criminal
history. Id. § 4A1.3. A defendant may receive a downward departure if “reliable
information indicates that the defendant’s criminal history category substantially
over-represents the seriousness of the defendant’s criminal history category or the
likelihood the defendant will commit other crimes.” Id. § 4A1.3(b)(1).
In 2011, the Sentencing Commission amended the commentary to § 1B1.10
to address a circuit split over which departures are considered part of the
“applicable guideline range” referred to in § 1B1.10. U.S.S.G. App. C, amend.
759 (Reasons for Amendment). Some circuits held that some departures, such as
departures under § 4A1.3 for inadequacy of criminal history, were part of the
applicable guideline range, while others held that no departures should be
considered part of the applicable guidelines range. Id. The Sentencing
Commission amended Application Note 1 to § 1B1.10 to clarify that the
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“applicable guideline range” is the range before any departure provision or
variance. Id. Accordingly, we have stated that, as a result of the amendment, a
§ 4A1.3 departure is not included in the “applicable guideline range” for the
purposes of § 3582(c)(2). United States v. Hargrove, 732 F.3d 1253, 1254 n.1
(11th Cir. 2013).
The District Court did not err in using a criminal history category II to
calculate Jenney’s amended guideline sentence range. Jenney’s original sentence
range had a criminal history category of II, from which the court departed
downward pursuant to § 4A1.3. However, a § 4A1.3 departure is not included in
the applicable sentence range for the purposes of § 3582(c)(2). Hargrove, 732
F.3d at 1254 n.1; see also U.S.S.G. App. C, amend. 759 (Reasons for
Amendment). Pursuant to § 1B1.10(b)(2), the court cannot reduce a defendant’s
sentence to a term less than the amended guideline range. U.S.S.G.
§ 1B1.10(b)(2)(A). Thus, even though Jenney received a criminal history
departure in his original sentence, he cannot receive the departure here because any
further reduction beyond 210 months would result in a sentence below Jenney’s
amended sentence range of 210-262 months’ imprisonment. See id. § 1B1.10
comment. (n.3).
AFFIRMED.
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