     Case: 16-10701    Document: 00514021879      Page: 1   Date Filed: 06/06/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fif h Circuit
                                  No. 16-10701                              FILED
                                                                         June 6, 2017
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

            Plaintiff-Appellee

v.

JASON DEJUAN LEATCH, also known as Criptonite,

            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas


Before REAVLEY, HAYNES, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      From time to time, the Sentencing Commission decides to lower the
guideline range applicable to an offense and gives retroactive effect to that
reduction for those sentenced before the change.        Amendment 782 to the
Guidelines was one such change. It lowered by two the offense level for most
drug crimes. 1 As a result of this change, Jason Dejuan Leatch, had his 262-
month sentence for trafficking in crack cocaine reduced to 235 months. His
appeal contends that he should have received a greater reduction to account


      1 As its reasons for the change, the Commission cited its “determination that
setting the base offense levels above mandatory minimum penalties is no longer
necessary and that a reduction would be an appropriate step toward alleviating the
overcapacity of federal prisons.” U.S.S.G. app. C, amend. 782 (Nov. 1, 2014).
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for the downward departure based on overrepresented criminal history that
the district court awarded him at his original sentencing. We decide whether
a district court considering a motion to reduce a sentence based on a retroactive
change to the Guidelines must disregard any downward departures previously
granted (other than one based on substantial assistance to the government)
and, if so, whether this poses any constitutional or other problems.
      Leatch was convicted of three counts of distributing cocaine base and one
count of conspiring to traffic in more than 50 grams of that substance. At
sentencing, the district court found that Leatch’s criminal history category of
V was overrepresented pursuant to U.S.S.G. § 4A1.3(b) and departed
downward to a category of IV. The court then imposed a sentence at the low
end of the guideline range that resulted from that reduced criminal history
category: 262 months for the conspiracy offense. 2
      After Amendment 782 was announced, Leatch sought a reduction to his
sentence. The district court determined that Amendment 782 reduced the
applicable sentencing range to 235-293 months and imposed a new sentence of
235 months. Leatch asserted that the district court should also reapply the
criminal history category departure in determining the new range. With that
departure included, the new range would be 210-262 months. The district
court reluctantly concluded, however, that U.S.S.G. § 1B1.10 forbade the
consideration of any departures in determining the applicable guideline range
for a sentencing reduction.
      A defendant is eligible for a sentence reduction if the guidelines range
originally applicable was subsequently lowered as a result of an amendment
to the Sentencing Guidelines that was given retroactive effect by being listed



      2 The sentence was 240 months for the substantive offenses as that was the
statutory maximum for those crimes.

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in section 1B1.10(d). U.S.S.G. § 1B1.10(a)(1). A district court considering a
reduction under section 3582(c)(2) must “determine the amended guideline
range that would have been applicable to the defendant if the amendment(s)
to the guidelines . . . had been in effect at the time the defendant was
sentenced.” Id. § 1B1.10(b)(1). With only one exception, the amended range
sets the lower limit of the court’s reduction authority: ““Except as provided in
subdivision (B) the court shall not reduce the defendant’s term of
imprisonment . . . to a term that is less than the minimum of the amended
guideline range.”    Id. § 1B1.10(b)(2)(A). The exception is for a case in which
the defendant received a downward departure at the original sentence hearing
for providing substantial assistance to the government. Id. § 1B1.10(b)(2)(B)
(explaining that a defendant at a sentencing reduction hearing may receive a
reduction from the new guideline range for cooperation under section 5K1.1
comparable to the one originally granted). There is no exception listed for any
other downward departures such as the one Leatch received because the court
believed his criminal history was overrepresented.
      Leatch nonetheless maintains that a section 4A1.3(b) criminal history
departure may be reapplied as part of a sentence reduction because he views
it is part of the original guideline calculation that just gets adjusted to take
account of the amendment. In other words, he is not seeking a departure from
the new range; he believes that the downward departure for overrepresented
criminal history should be used in calculating that new range. He argues that
the Guidelines clearly provide that a departure for unrepresentative criminal
history is part of the Guideline itself, citing the basic Guidelines instructions
found in section 1B1.1(a)(6). Among other things, that section provides that a
court shall “[d]etermine the defendant’s criminal history category as specified
in Part A of Chapter 4.” Id. § 1B1.1(a)(6). Because the departure he received



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is found in that part of the Guidelines, he contends it is part of the original
range that is simply adjusted at a sentencing reduction hearing to account for
the retroactive amendment.
      Even if his view has some merit to it, the Guidelines language does not
unambiguously support it. Chapter 4 first lists the points assigned to prior
convictions that a court uses to “determine the criminal history category.” Id.
§ 4A1.1 (emphasis added).     Only after that calculation is performed does
Section 4A1.3 come into play, which discusses the procedure for “[d]epartures
based on inadequate criminal history category.” A “departure” is a divergence
from the norm. By definition then, the departure Leatch received at his first
sentencing was something outside the originally calculated range. United
States v. Mejia-Huerta, 480 F.3d 713, 721 (5th Cir. 2007) (“When a sentencing
court found such an exception and exercised its limited discretion to sentence
outside the applicable Guidelines range, the court was said to be engaging in
a ‘departure’ from the Guidelines.”); United States v. Zuniga-Peralta, 442 F.3d
345, 347 (5th Cir. 2006) (noting that a Presentence Report discussed the
possibility that the “Court could depart from the guideline range under
U.S.S.G. § 4A1.3” (emphasis added)).   Indeed, the Rule of Criminal Procedure
recognize that a departure like the one Leatch received is apart from, rather
than part of, the “applicable sentencing range.” FED. R. CRIM. P. 32(d). The
rule provides that a presentence report must, among other things: 1) “calculate
the defendant’s offense level and criminal history category; 2) “calculate the
resulting sentencing range;” and 3) only then, “identify any basis for departing
from the applicable sentencing range.”      Id. Other features of sentencing
demonstrate that the calculation of the “applicable” range is a separate step
from determining whether a departure should apply. Notice must be given
before “the court may depart from the applicable sentencing range.” FED. R.



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CRIM. P. 32(h). And the difference between the applicable sentencing range and
the sentenced that resulted a departure is used by a reviewing court to assess
the reasonableness of the departure.               Zuniga-Peralta, 442 F.3d at 348
(assessing whether the district court abused its discretion in giving an
“ultimate sentence of sixty months” that was “nearly double the initial
sentencing range”). To be sure, there is a way to look at this process that
supports Leatch’s characterization.              Unlike a Booker variance which is
considered “outside the Guidelines,” a sentence that includes a Guidelines-
sanctioned departure is often still deemed a “Guidelines sentence that included
an upward or downward departure.” Mejia-Huerta, 480 F.3d at 721 (emphasis
added). But for the reasons we have explained, the Guidelines can also be read
to treat a departure as just that—something outside the guideline range.
       With that uncertainty, we are able to consider whether the Commission’s
commentary to the Guidelines provides a clear answer to our question. It does.
Recall that the key term the Guidelines use as the starting point for a reduction
is the “applicable” guideline range. 3 U.S.S.G. 1B1.10(b)(1); United States v.
Montanez, 717 F.3d 287, 292 (2d Cir. 2013) (noting that this section’s “use of
the word ‘applicable’ has technical significance”).               Commentary defines
“applicable guideline range” as “the guideline range that corresponds to the
offense level and criminal history category determined pursuant to
section 1B1.1(a), which is determined before consideration of any departure
provision in the Guidelines Manual or any variance.” § 1B1.10, comment.
n.1(A) (2014) (emphasis added). Another application note drives home the
point with the following example:
       If the term of imprisonment imposed [at a defendant's original
       sentencing] was outside the guideline range applicable to the defendant

       3 Notably, “applicable sentencing range” is also the language Rule 32 repeatedly uses
for the determination that comes before any departure is considered. FED. R. CRIM. P. 32(d),
(h).


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      at the time of sentencing, the limitation in subsection (b)(2)(A) ...
      applies. Thus, if the term of imprisonment imposed [based on an
      applicable guideline range of 70 to 87 months] ... was a sentence of 56
      months (constituting a downward departure or variance), the court ...
      may [, after a guideline amendment lowers the applicable range to 51 to
      63 months,] reduce the defendant's term of imprisonment, but shall not
      reduce it to a term less than 51 months.
U.S.S.G. § 1B1.10 cmt. n.3.
      Other sections of the commentary also directly counter Leatch’s view
that a departure for overrepresented criminal history is part of the guideline
range itself. The starting point for this analysis is commentary to section
4A1.3, which states that “departure” is defined pursuant to the commentary in
section 1B1.1. See id. § 4A1.3 cmt. n.1. That commentary defines a section
4A1.3 “departure” as “assignment of a criminal history category other than the
otherwise applicable criminal history category, in order to effect a sentence
outside the applicable guideline range.” § 1B1.1 cmt. n.1(E) (emphasis added).
The commentary thus “lead[s] to the ineluctable conclusion that a court does
not depart under § 4A1.3 when calculating a defendant’s applicable guideline
range, but instead departs from the applicable guideline range under § 4A.1.3
after having calculated that range.” United States v. Montanez, 717 F.3d 287,
292 (2d Cir. 2013). And that means the post-departure range cannot be used
as the starting point when calculating the amended range for a sentencing
reduction. Montanez, 717 F.3d at 291–94.
      This is the unanimous view of the circuits that have decided the
question since the Commission in 2011 added the commentary providing that
the “applicable guideline range” is “the guideline range that corresponds to the
offense level and criminal history category determined pursuant to
section 1B1.1(a), which is determined before consideration of any departure
provision in the Guidelines Manual or any variance.” U.S.S.G. app. C, amend
759 (2011). See Montanez, 717 F.3d at 294; United States v. Hogan, 722 F.3d


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55, 63 (1st Cir. 2013); United States v. Ornelas, 825 F.3d 548 (9th Cir. 2016);
United States v. Muldrow, 844 F.3d 434, 437 (4th Cir. 2016); United States v.
Beckham, 838 F.3d 731, 733 (6th Cir. 2016). Prior to the commentary, circuits
were split on whether district courts could take account of a prior departure
for overrepresented criminal history when reducing a sentence.         Compare
United States v. Fleming, 617 F.3d 252, 272 (3rd Cir. 2010), and United States
v. McGee, 553 F.3d 225, 229–30 (2d Cir. 2009) (both taking account of the
departure), with United States v. Pembrook, 609 F.3d 381, 384 (6th Cir. 2010),
and United States v. Darton, 595 F.3d 1191, 1197 (10th Cir. 2010) (both not
taking account of it). The commentary was aimed at resolving the split See
U.S.S.G. app. C (2011) (giving reasons for Amendment 759); see also United
States v. Muldrow, 844 F.3d 434, 437 (4th Cir. 2016). To give that commentary
effect, we must join the other circuits that have followed the Commission’s
instruction.
      That leaves Leatch’s arguments that this constraint in the Guidelines
for sentencing reductions is unlawful. He first contends that a district court’s
inability to impose the previously-applied departure violates United States v.
Booker, 543 U.S. 220 (2005). But we have previously held that Booker does not
apply to section 3582(c)(2) proceedings, because a sentence reduction under the
limited circumstances specified by the Sentencing Commission is not a full
resentencing. Dillon v. United States, 560 U.S. 817, 826 (2010); United States
v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). Nor has Leatch established a
due process violation, as he is unable to show that he had a protected interest
in receiving both a sentence reduction under section 3582(c)(2) and a reduced
criminal history category under section 4A1.3(b). See United States v. Chapple,
847 F.3d 227, 231 (5th Cir. 2017); Meza v. Livingston, 607 F.3d 392, 399 (5th
Cir. 2010). No ex post facto violation occurred, as the amendment to the section



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1B1.10 commentary did not have the effect of retroactively increasing the
punishment for an offense. See United States v. Caulfield, 634 F.3d 281, 283
(5th Cir. 2011).     And we have rejected the argument that Congress’s
instructions that the Sentencing Commission determine whether and when a
sentencing reduction should apply violates the separation of powers. United
States v. Garcia, 655 F.3d 426, 434-35 (5th Cir. 2011).
      Leatch has also not established that the district court’s inability to
reapply the departure violates res judicata or collateral estoppel, because a
section 3582(c)(2) reduction proceeding operates under a different set of rules
from a resentencing. Dillon, 560 U.S. at 825–26. The 3582(c)(2) proceeding
does not fit into a preclusion framework because it is not the same action as
the earlier resentencing.
      As for his contention that depriving him of the departure will undermine
the sentencing goal of proportionality between himself and his codefendants, a
sentence reduction under section 3582(c)(2) is distinct from a full resentencing
proceeding. Id. at 825–26; Doublin, 572 F.3d at 238. The failure to incorporate
the goals of sentencing into a provision constituting “a congressional act of
lenity intended to give prisoners the benefit of later enacted adjustments to the
judgments reflected in the Guidelines” does not render the proceedings unjust.
Dillon, 560 U.S. at 828.
      Some of the circuits that agree that the Guidelines disallow a sentencing
court from reapplying a prior criminal history departure have nonetheless
agreed with Leatch’s critique of that policy decision. See, e.g., Montanez, 717
F.3d at 294 (“[W]e question why a court should not have the discretion to give
defendants the benefit of section 4A1.3 departures during the sentencing
reduction proceedings.      A criminal history category that exaggerates a
defendant’s past crimes during an initial sentencing will continue to do so at a



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reduction.”); Hogan, 722 F.3d at 63 (“Because the Commission has made clear
that a defendant’s ‘amended guideline range’ does not incorporate previously
granted departures under §4A1.3, a defendant’s criminal history category that
overstates his past crimes during an initial sentencing will continue to do so
when that defendant moves for a reduction.”). They make some good points.
But as it is solely through the Commission’s grace that these retroactive
reductions come about, it is for that body to decide the wisdom of limits on the
scope of such reductions.
      The judgment of the district court is AFFIRMED.




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