                               FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                          JUN 03 2016

                            FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No. 15-10522

              Plaintiff - Appellee,              D.C. No. 2:03-cr-00284-JAM-1

 v.
                                                 OPINION
HECTOR ORNELAS,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                        Argued and Submitted May 13, 2016
                             San Francisco, California

Before: Andrew J. Kleinfeld, Sandra S. Ikuta, and Paul J. Watford, Circuit Judges.

                              Opinion by Judge Ikuta:

      Hector Ornelas appeals the district court’s order denying his motion to

reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). He argues that the district

court erred in calculating the guideline range that applied to him at sentencing

because it did not take into account a downward departure to his criminal history,

see U.S.S.G. § 4A1.3. Had the court included this downward departure, Ornelas
argues, he would have been eligible for a sentence reduction. We have jurisdiction

under 28 U.S.C. § 1291 and review de novo whether a district court has

jurisdiction to resentence a defendant under § 3582. See United States v. Pleasant,

704 F.3d 808, 810 (9th Cir. 2013). We hold that the district court was correct to

calculate the guideline range that applied to Ornelas at sentencing without taking

into account the § 4A1.3 downward departure, and we therefore affirm.

                                          I

      Before addressing the facts of this case, we explain the framework for

analyzing Ornelas’s argument that the district court erred in declining to reduce his

sentence.

      “As a general matter, courts may not alter a term of imprisonment once it

has been imposed.” United States v. Hicks, 472 F.3d 1167, 1169 (9th Cir. 2007),

abrogated on other grounds by Dillon v. United States, 560 U.S. 817 (2010).

Congress has created an exception to this rule in 18 U.S.C. § 3582(c)(2).1 Under

      1
       Section 3582(c)(2) provides:
      [I]n the case of a defendant who has been sentenced to a term of
      imprisonment based on a sentencing range that has subsequently been
      lowered by the Sentencing Commission ..., upon motion of the defendant
      or the Director of the Bureau of Prisons, or on its own motion, the court
      may reduce the term of imprisonment, after considering the factors set
      forth in section 3553(a) to the extent that they are applicable, if such a
      reduction is consistent with applicable policy statements issued by the
                                                                         (continued...)

                                          2
this section, a court may reduce a defendant’s term of imprisonment if (1) the

defendant was “sentenced to a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing Commission” by an

amendment to the Guidelines2 and (2) “such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(2).

      The “applicable policy statement” relevant here is § 1B1.10 of the

Sentencing Guidelines. See Pleasant, 704 F.3d at 809–10. Under this section, if

“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” that

is listed in § 1B1.10(d),3 the court has the discretion to “reduce the defendant’s

term of imprisonment” consistent with § 1B1.10. U.S.S.G. § 1B1.10(a)(1).




      1
       (...continued)
      Sentencing Commission.
      2
       The parties do not address the first prong of § 3582(c)(2), which requires
the defendant to have been sentenced “based on” a sentencing range lowered by an
amendment to the Guidelines.
      3
       U.S.S.G. § 1B1.10(d) provides: “Covered Amendments.—Amendments
covered by this policy statement are listed in Appendix C as follows: 126, 130,
156, 176, 269, 329, 341, 371, 379, 380, 433, 454, 461, 484, 488, 490, 499, 505,
506, 516, 591, 599, 606, 657, 702, 706 as amended by 711, 715, 750 (parts A and
C only), and 782 (subject to subsection (e)(1)).”

                                           3
      In order to determine the defendant’s eligibility under this section, the court

must determine “the amended guideline range that would have been applicable to

the defendant if the amendment(s) to the guidelines” listed in § 1B1.10(d) “had

been in effect at the time the defendant was sentenced.” Id. § 1B1.10(b)(1).4 In

determining this amended guideline range, the court substitutes the new

amendment “for the corresponding guideline provisions that were applied when the

defendant was sentenced,” but must “leave all other guideline application decisions

unaffected.” Id. After the court calculates the amended guideline range, it must

determine whether the defendant’s term of imprisonment is greater or less than the

minimum of this amended guideline range. Under § 1B1.10(a)(2)(B), “[a]

reduction in the defendant’s term of imprisonment” is not authorized if the new

amendment “does not have the effect of lowering the defendant’s applicable




      4
       U.S.S.G. § 1B1.10(b)(1) provides:
      In General.--In determining whether, and to what extent, a reduction in
      the defendant’s term of imprisonment under 18 U.S.C. 3582(c)(2) and
      this policy statement is warranted, the court shall determine the amended
      guideline range that would have been applicable to the defendant if the
      amendment(s) to the guidelines listed in subsection (d) [Covered
      Amendments] had been in effect at the time the defendant was
      sentenced. In making such determination, the court shall substitute only
      the amendments listed in subsection (d) for the corresponding guideline
      provisions that were applied when the defendant was sentenced and shall
      leave all other guideline application decisions unaffected.

                                          4
guideline range.” Id. § 1B1.10(a)(2)(B).5 Therefore, if the defendant’s term of

imprisonment is less than the minimum of the amended guideline range, then the

defendant is ineligible for a sentence reduction.

      Before 2011, the Guidelines did not provide guidance on how a court should

determine the applicable guideline range under § 1B1.10. The Second, Third, and

Fourth Circuits agreed that at a minimum, the applicable guideline range included

a reduction in a defendant’s criminal history category, as allowed under § 4A1.3

(2009) (“Departures Based on Inadequacy of Criminal History Category (Policy

Statement)”), if such a criminal history category “substantially over-represents the

seriousness of the defendant’s criminal history,” id. § 4A1.3(b)(1). See United

States v. Flemming, 617 F.3d 252, 271–72 (3rd Cir. 2010); United States v. Munn,

595 F.3d 183, 194–95 (4th Cir. 2010); United States v. McGee, 553 F.3d 225,

228–30 (2d Cir. 2009). These courts generally reasoned as follows: When a

sentencing court follows the Guidelines’ seven steps for calculating a defendant’s

applicable guideline range, § 1B1.1(a)–(g) (2009), the sentencing court must



      5
       U.S.S.G. § 1B1.10(a)(2)(B) provides:
      Exclusions.—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— . . . (B) [a]n amendment listed in
      subsection (d) [Covered Amendments] does not have the effect of
      lowering the defendant’s applicable guideline range.

                                          5
determine the defendant’s criminal history category at step six, § 1B1.1(f).6

According to the Fourth Circuit, a sentencing court deciding to apply a departure

under § 4A1.3 is merely determining the defendant’s correct criminal history

category at step six, before calculating the guideline range that corresponds to the

“offense level and criminal history category determined above” at step seven,

§ 1B1.1(g). See Munn, 595 F.3d at 192–93. Therefore, in determining whether a

new amendment has lowered the guideline range applicable to the defendant, Munn

explained, the sentencing court should look at the guideline range as calculated

with the criminal history category that was determined after the § 4A1.3 departure.

Id.; see also Flemming, 617 F.3d at 268–69 (noting a similar rationale for

determining the guideline range applicable to a defendant for purposes of

§ 1B1.10(a)). The Third Circuit explained that to the extent the guidelines are

ambiguous regarding how to determine the guideline range applicable to a



      6
       U.S.S.G. § 1B1.1(f) (2009) provides: “Determine the defendant’s criminal
history category as specified in Part A of Chapter Four. Determine from Part B of
Chapter Four any other applicable adjustments.” Part A of Chapter Four sets forth
the method for determining criminal history. It includes § 4A1.3, “Departures
Based on Inadequacy of Criminal History Category (Policy Statement).” Part B of
Chapter Four provides adjustments for Career Offenders and other recidivists.

U.S.S.G. § 1B1.1(g) (2009) provides “Determine the guideline range in Part A of
Chapter Five that corresponds to the offense level and criminal history category
determined above.”

                                          6
defendant, a court must “apply the rule of lenity and resolve the conflict in the

defendant’s favor.” Flemming, 617 F.3d at 269–72 & n.26 (quoting Munn, 595

F.3d at 194); see also McGee, 553 F.3d at 229 (applying the rule of lenity in

holding the same).

      On the other side of this split, the Sixth, Eighth, and Tenth Circuits held that

the guideline range applicable to a defendant is the range that the district court

calculated before granting any departures, including the downward departure

allowed by § 4A1.3. These circuits noted that “departure” is defined “for purposes

of § 4A1.3” as the “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.” U.S.S.G. § 1B1.1 cmt. n.1(E). Because a

departure by definition takes the sentence “outside the applicable guideline range,”

a court must determine the applicable guideline range before any departures were

granted. See, e.g., United States v. Pembrook, 609 F.3d 381, 385–86 (6th Cir.

2010); United States v. Darton, 595 F.3d 1191, 1196–97 (10th Cir. 2010); United

States v. Blackmon, 584 F.3d 1115, 1116 (8th Cir. 2009) (per curiam).

      In 2011, the Commission issued Amendment 759, which amended § 1B1.10

Application Note 1 to address this circuit split. As the Commission explained in its

statement of reasons, the “First, Second, and Fourth Circuits have held that, for


                                           7
§ 1B1.10 purposes, at least some departures (e.g., departures under § 4A1.3

(Departures Based on Inadequacy of Criminal History Category) (Policy

Statement)) are considered before determining the applicable guideline range,

while the Sixth, Eighth, and Tenth Circuits have held that the only applicable

guideline range is the one established before any departures.” U.S.S.G. supp.

app’x C, amend. 759 (Reason for Amendment) (internal quotation marks omitted).

The Commission stated that its amendment “adopts the approach of the Sixth,

Eighth, and Tenth Circuits and amends Application Note 1 to clarify that the

applicable guideline range referred to in § 1B1.10 is the guideline range

determined pursuant to § 1B1.1(a), which is determined before consideration of

any departure provision in the Guidelines Manual or any variance.” Id. The

Commission noted that this approach was also consistent with its 2010 amendment

to § 1B1.1 (the instructions for determining the appropriate guidelines range),

which had clarified that a court first determines the guideline range and then

considers “the policy statements and commentary to determine whether a departure

is warranted.” Id. § 1B1.1(b); see also U.S.S.G. supp. app’x C, amend. 759

(Reason for Amendment) (“As amended, subsection (a) addresses how to apply the

provisions in the Guidelines Manual to properly determine the kinds of sentence

and the guideline range. Subsection (b) addresses the need to consider the policy


                                          8
statements and commentary to determine whether a departure is warranted.”

(quoting U.S.S.G. supp. app’x C, amend. 741 (Reason for Amendment))).

      As amended, Application Note 1 to § 1B1.10 now states: “Eligibility for

consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment

listed in subsection (d) that lowers the applicable guideline range (i.e., the

guideline range that corresponds to the offense level and criminal history category

determined pursuant to § 1B1.1(a), which is determined before consideration of

any departure provision in the Guidelines Manual or any variance).” U.S.S.G.

§ 1B1.10 cmt. n.1(A) (effective Nov. 1, 2011) (emphasis added).

      As a result of the Sentencing Commission’s Amendment 759, all circuits

that have addressed the issue after 2011, including those on the wrong side of the

circuit split, have recognized that a court must not consider any departures or

variances (including departures under § 4A1.3) in determining the applicable

guideline range for purposes of § 1B1.10. See United States v. Hogan, 722 F.3d

55, 59–61 (1st Cir. 2013); United States v. Montanez, 717 F.3d 287, 292–94 (2d

Cir. 2013); United States v. Flemming, 723 F.3d 407, 411–13 (3rd Cir. 2013);

United States v. Boyd, 721 F.3d 1259, 1262–64 (10th Cir. 2013); United States v.

Hargrove, 732 F.3d 1253, 1254 n.1 (11th Cir. 2013). In Montanez, for instance,

the Second Circuit rejected the defendants’ argument that § 1B1.1 required a


                                           9
sentencing court to apply a departure under § 4A1.3 as part of the calculation of

criminal history before determining the defendant’s applicable guideline range,

because “the Commission has foreclosed the exact approach” that the defendants

were advocating. 717 F.3d at 294. Similarly, the Third Circuit acknowledged that

its prior reading of the Guidelines was superseded by the new definition of

“applicable guidelines range” and that the language of the amendment “makes

clear that regardless of when a § 4A1.3 departure is calculated, that departure is

ignored for purposes of determining the ‘applicable guideline range.’” Flemming,

723 F.3d at 412. Therefore, the court held that the “applicable guideline range” is

“the range calculated pursuant to the career offender designation of § 4B1.1, and

not the range calculated after applying any departure or variance.” Id.

      We have likewise concluded that the “applicable guideline” range for

purposes of a sentencing reduction under § 3582(c)(2) “is derived pre-departure

and pre-variance.” Pleasant, 704 F.3d at 812. Pleasant held that a defendant who

qualified as a career offender (a defendant who has a criminal history category of

Category VI), but who was sentenced under a crack-cocaine guideline

range—which was later amended—pursuant to a plea agreement, nevertheless was

ineligible for a sentencing reduction because his “applicable guideline range” for

purposes of § 1B1.10 was the career offender guideline range. Id. at 811–12. In so


                                          10
holding, we relied on the plain language of the Commission’s amended

Application Note 1(A), which states the applicable range is “determined before

consideration of any departure provision,” and that the Commission added the

relevant language to resolve the circuit split in favor of courts that held the same.

Id. at 812. Although Pleasant did not address the situation where a court had

granted a defendant a departure from the defendant’s criminal history category

under § 4A1.3, its reasoning is applicable in this context as well.

                                           II

      We now turn to the facts of this case. Hector Ornelas was arrested after he

was spotted leaving 766 grams of methamphetamine in a red and white cooler at a

house in Sacramento, California. In March 2004, he pleaded guilty to: (1)

possession with intent to distribute at least 500 grams of methamphetamine in

violation of 21 U.S.C. § 841(a)(1) and (2) being a deported alien found in the

United States in violation of 8 U.S.C. § 1326(a).

      The presentence investigation report (PSR) made the following calculations.

First, it determined the base offense level for a violation of § 841(a)(1). Under the

drug quantity table set forth at § 2D1.1(c)(2), offenses involving at least 500 grams

but less than 1.5 kilograms of methamphetamine were assigned a base offense




                                          11
level of 36.7 This base offense level was reduced three points for an adjustment for

acceptance of responsibility, see § 3E1.1, leading to a total offense level of 33.

The PSR calculated Ornelas’s criminal history score of 14, establishing a criminal

history category of VI. A total offense level of 33 and a criminal history category

of VI corresponded to a resulting guideline range of 235 to 293 months. The PSR

also noted that the plea agreement stated the criminal history category VI was

overstated and recommended a category IV, which corresponded to a guideline

sentencing range of 188 to 235 months.

      On June 29, 2004, the district court held a sentencing hearing and

determined that the total offense level was 33, that a criminal history category of

VI was appropriate, but that a downward departure was also appropriate because

the record overstated Ornelas’s criminal history. The court then imposed a term of

178 months.8




      7
       Under § 3D1.4 (providing directions for determining the combined offense
level when there are multiple counts) the § 1326(d) conviction did not add to the
base offense level.
      8
       Although the record is not entirely clear, the parties do not dispute that the
court granted this departure pursuant to § 4A1.3. The district court did not identify
the criminal history category it deemed to be applicable to Ornelas under this
departure.

                                          12
      In November 2014, the Sentencing Commission promulgated Amendment

782, which generally amended the drug quantity table in § 2D1.1(c) to reduce the

base offense levels assigned to specified quantities of specified controlled

substances by two levels. See U.S.S.G. supp. app’x C, amend. 782. This

amendment is listed in § 1B1.10(d) as a “covered amendment,” and the Sentencing

Commission authorized district courts to apply Amendment 782 retroactively. See

U.S.S.G. supp. app’x C, amend. 788.

      Because Amendment 782 would have applied to his sentence, Ornelas filed a

motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). After hearing

argument, the district court denied the motion. It stated that at the 2004 sentencing

hearing, the sentencing court found that Ornelas had a total offense level of 33 and

a criminal history of VI, resulting in a guideline range of 235 to 293 months, but

the sentencing court then imposed a 178-month sentence. Under Amendment 782,

Ornelas would have a total offense level of 31. Substituting this offense level for

the original offense level of 33, and leaving “all other guidelines application

decisions unaffected,” U.S.S.G. § 1B1.10(b)(1), the court calculated that a total

offense level of 31 and a criminal history of VI resulted in a guideline range of 188

to 235 months. Because Ornelas’s sentence of 178 months was less than the

minimum of the amended applicable guideline range (188 months), as determined


                                          13
pre-departure and pre-variance, the court determined that Ornelas was not eligible

for a reduction. Ornelas timely appealed.

                                          III

      On appeal, Ornelas argues that the district court erred by not including a

§ 4A1.3 downward departure in calculating the applicable guideline range for

purposes of § 3582(c)(2) and § 1B1.10. Specifically, Ornelas contends that in

sentencing him to a 178-month term of imprisonment, the sentencing court used a

criminal history category of III (after departing from the criminal history category

of VI pursuant to § 4A1.3), and a total offense level of 33, resulting in a guideline

range of 168 to 210 months of imprisonment. Amendment 782 lowers his total

offense level to 31, and with a criminal history category of III, this would result in

a range of 135 to 168 months. Since the minimum of the amended guideline range

applicable to Ornelas (135 months) is less than his actual term of imprisonment

(178 months), according to Ornelas, the district court should have found he is

eligible for a reduction.

      In making this argument, Ornelas relies on the pre-2011 decisions in the

First, Second, Third, and Fourth Circuits, which had held that a § 4A1.3 departure

is incorporated into the applicable guideline range for purposes of § 1B1.10

because it is part of the “guideline range that corresponds to the offense level and


                                          14
criminal history category determined pursuant to § 1B1.1(a),” as defined by

Application Note 1(A). See U.S.S.G. § 1B1.10 cmt. n.1(A). He also argues, again

echoing those pre-2011 decisions, that § 1B1.10 is ambiguous, so the Guidelines

should be interpreted in his favor in light of the rule of lenity. Ornelas

acknowledges that after Amendment 759 was issued in 2011, every circuit that has

ruled on this issue has rejected these arguments. He also acknowledges that we

have held the applicable guideline range must be determined before applying

departures or variances. See Pleasant, 704 F.3d at 812. Nevertheless, as he notes,

we have not directly ruled that a court must determine the applicable guideline

range before considering any downward departure under § 4A1.3.

      We now do so. We defer to the Application Notes, see Stinson v. United

States, 508 U.S. 36, 38 (1993), and look to the Commission’s statements of reason

for guidance, see Boyd, 721 F.3d at 1263–64; see also Pleasant, 704 F.3d at 812

(relying on the Sentencing Commission’s statement of reasons for Amendment

759); Hogan, 722 F.3d at 61 (same); Montanez, 717 F.3d at 294 (same); Flemming,

723 F.3d at 413 (same). A defendant is eligible for a sentence reduction under

§ 3582(c)(2) only if a new amendment lowers the “applicable guideline range,”

which must be determined “before consideration of any departure provision in the

Guidelines Manual.” U.S.S.G. § 1B1.10 cmt. n.1(A). Section 4A1.3 is identified


                                          15
as a departure provision, see § 4A1.3 (“Departures Based on Inadequacy of

Criminal History Category (Policy Statement)).” For purposes of § 4A1.3, the

term “departure” has the meaning given that term in 1B1.1, see U.S.S.G. § 4A1.3

cmt. n.1, and § 1B1.1 defines departure “for purposes of §4A1.3” as the

“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.” U.S.S.G. § 1B1.1 cmt. n.1(E). Because § 4A1.3 is a “departure”

that effects a sentence “outside the applicable guideline range,” the applicable

guideline range for purposes of § 1B1.10 must be determined before considering

§ 4A1.3. Further, the Commission’s November 2010 amendment to § 1B1.10

makes clear that this interpretation is consistent with § 1B1.1. See U.S.S.G. supp.

app’x C, amend. 741 (Reason for Amendment). Section 4A1.3 is identified as a

policy statement, and under the current version of § 1B1.1, a court must first

determine the applicable guideline range, id. § 1B1.1(a), and only then consider

any “policy statements” that might warrant consideration, id. § 1B1.1(b).

Accordingly, we conclude that for purposes of determining a defendant’s eligibility

for a sentence reduction under § 3582(c) and § 1B1.10, a court must calculate the

guideline range applicable to the defendant before considering any departure,

including a departure under § 4A1.3. Our conclusion is supported by the


                                          16
Commission’s statement that it amended Application Note 1(A) of § 1B1.10 to

resolve a circuit split on this very issue, by the fact that every other circuit that has

addressed this issue after Amendment 759 is in agreement, and by our binding

precedent, see Pleasant, 704 F.3d at 812.

       Because the district court here correctly determined Ornelas’s applicable

guideline range by using the criminal history category applicable to Ornelas before

consideration of a downward departure under § 4A1.3, it did not err in concluding

that Ornelas was not eligible for a sentence reduction under § 3582(c).9

AFFIRMED.




       9
       Ornelas argues that, in the alternative, application of § 1B1.10(b)(1)
violates the Ex Post Facto Clause of the United States Constitution. We have
already rejected that argument. United States v. Waters, 771 F.3d 679, 680–81 (9th
Cir. 2014).

                                            17
                                     COUNSEL


John Balazs (argued), Sacramento, California, for defendant-appellant.


Benjamin B. Wagner, United States Attorney, Camil A. Skipper, Assistant United
States Attorney, Jason Hitt (argued), Assistant United States Attorney, for plaintiff-
appellee.




                                          18
