                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   January 10, 2017
                   UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 16-3032
                                            (D.C. No. 2:03-CR-20123-CM-TJJ-6)
 TIMOTHY HANS FORD,                                       (D. Kan.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit
Judges. **


      Timothy Hans Ford pleaded guilty to possession with intent to distribute

cocaine base within one thousand feet of an elementary school. Ford and the

government agreed to a non-binding plea agreement stipulating the drug quantity

attributable to Ford. The parties agreed that Ford’s base offense level under the

United States Sentencing Guidelines should be determined according to that


      *
        This order and judgment is not binding precedent except under the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.
      **
         Per the court’s June 28, 2016 Order, the panel granted the Appellant’s
motion to waive oral arguments. This case was submitted on the briefs.
stipulated amount. Before sentencing, however, the Presentence Report (PSR)

recommended a higher guidelines range of 262–327 months, based on a greater

drug quantity than that set forth in the plea agreement, which would have

produced a lesser guidelines range of 168–210 months.

      The parties disputed which drug quantity and corresponding guidelines

range the court should adopt, but ultimately agreed they would both accept a

sentence within the lower range of 168–210 months. The district court sentenced

Ford to 188 months’ imprisonment, indicating in its written statement of reasons

that it had adopted the PSR without change, determined the guidelines range was

262–327 months, and varied downward to a sentence to which the parties agreed.

      In 2014, the Sentencing Commission adopted amendments to the guidelines

(Amendments 782 and 788) that retroactively reduced base-offense levels

corresponding to drug quantities. Ford then filed a motion for sentence reduction

pursuant to 18 U.S.C. § 3582(c)(2), which allows courts to modify a defendant’s

term of imprisonment if the defendant was sentenced based on a guidelines range

“that has been subsequently lowered by the Sentencing Commission . . . if such a

reduction is consistent with applicable policy statements issued by the Sentencing

Commission.” Ford claimed he was eligible for a two-level sentence reduction

under Amendment 782, because he was sentenced based on an agreement

governing the applicable guidelines range. Ford also argued his 188-month




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sentence was a guidelines sentence within the 168–210 months range, not a

variance, and thus he was eligible for a reduction.

      The district court disagreed and concluded Ford’s sentence was the result of

a downward variance from a guidelines range of 262–327 months. Because the

two-level reduction would result in a new range of 210–262 months, which was

still above Ford’s existing 188-month sentence, Ford was legally ineligible for

relief. Thus, the district court denied his motion for lack of jurisdiction. Ford

appealed, arguing the district court’s conclusion was based on a clearly erroneous

factual finding—namely, that the sentencing court adopted the higher range and

varied downward.

      Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we

affirm.

                                 I. Analysis

      We review the district court’s denial of a motion for sentence reduction for

an abuse of discretion. United States v. Battle, 706 F.3d 1313, 1317 (10th Cir.

2013). “A district court abuses its discretion when it relies on an incorrect

conclusion of law or a clearly erroneous finding of fact.” Id. A finding of fact

“is clearly erroneous only ‘if it is without factual support in the record or if [this]

court, after reviewing all the evidence, is left with a definite and firm conviction

that a mistake has been made.’” United States v. Patron-Montano, 223 F.3d 1184,

1188 (10th Cir. 2000) (alteration in original) (quoting Manning v. United States,

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146 F.3d 808, 812 (10th Cir. 1998)). “If the district court’s account of the

evidence is plausible in light of the record viewed in its entirety,” we may not

reverse, even if we would have weighed the evidence differently. See Anderson

v. Bessemer City, 470 U.S. 564, 573–74 (1985).

      Courts may modify a defendant’s term of imprisonment if the defendant

was sentenced based on a guidelines range “that has been subsequently lowered

by the Sentencing Commission . . . if such a reduction is consistent with

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

§ 3582(c)(2). In Amendment 782, the Sentencing Commission revised the

Guidelines applicable to drug trafficking offenses by changing how the base

offense levels incorporate the statutory mandatory minimum penalties. See U.S.

Sentencing Guidelines Manual, app. C, Amend. 782 (U.S. Sentencing Comm’n

2014). And Amendment 788 makes Amendment 782 applicable retroactively.

See id., Amend. 788.

      Any sentence reduction under § 3582(c)(2), however, must not result in a

reduced term of imprisonment that is “less than the minimum of the amended

guideline range.” See USSG § 1B1.10. Thus, a defendant is eligible for a

sentence reduction if (1) Amendment 782 is applicable and lowers the defendant’s

previously calculated guidelines sentencing range; and (2) the defendant did not

previously receive a sentence at or below the bottom of the now-amended range.




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      Ford contends the district court erred in concluding he was legally

ineligible for a § 3582(c)(2) sentence reduction, because the court based its denial

of Ford’s motion on a clearly erroneous factual finding: that his sentencing range

was 262–327 months and his 188-month sentence was the result of a downward

variance from that range. Ford believes the sentencing court adopted the parties’

agreed-upon range of 168–210 months at the sentencing hearing, notwithstanding

the written statement of reasons. The government, on the other hand, argues the

court indicated orally and in the statement of reasons that it intended to impose a

downward variant sentence. On this record, the government contends, the district

court’s factual finding is at least plausible—all that is required under clear-error

review. We agree, because we find the sentencing court’s written statement of

reasons resolves any ambiguity in the court’s oral pronouncements.

      “It is a firmly established and settled principle of federal criminal law that

an orally pronounced sentence controls over a judgment and commitment order

when the two conflict.” United States v. Villano, 816 F.2d 1448, 1451 (10th Cir.

1987). “When an orally pronounced sentence is ambiguous, however, the

judgment and commitment order is evidence which may be used to determine the

intended sentence.” Id. (citations omitted); see also United States v. Thomas, 757

F.3d 806, 809–10 (8th Cir. 2014) (looking to written statement of reasons where

the court’s oral pronouncement was ambiguous as to the applicable sentencing

range and basis for imposing the chosen sentence). In determining whether an

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oral sentence is ambiguous, we consider “only the words used by the sentencing

court in formally pronouncing a sentence.” United States v. Barwig, 568 F.3d

852, 856 (10th Cir. 2009) (citing Villano, 816 F.2d at 1450–53, 1451 n.3). Most

sentencing ambiguities can be resolved by reviewing the record, including the

written judgment and commitment order, “to ascertain the intent of the sentencing

judge and identify the terms of the sentence.” See United States v. May, 52 F.3d

885, 893 (10th Cir. 1995). If the record, including the statement of reasons, does

not resolve the ambiguity, “the best course of action is [to remand] to allow the

district court the opportunity to clarify its intentions.” Thomas, 757 F.3d at 810.

      Here, the court’s statements at the sentencing hearing were ambiguous as to

the basis for the court’s decision to impose a 188-month sentence. On the one

hand, the court found the PSR was accurate. On the other hand, the court stated

the 168–210-month range agreed to by the parties was sufficient to meet the

sentencing purposes in § 3553(a). The court also referred to “the presentence

investigation report as modified by the court and the previously stated findings.”

App., Vol. 2 at 53. Based on these conflicting oral pronouncements, it is unclear

whether the court adopted the range in the PSR and varied downward or adopted

the lower range and selected a 188-month sentence within that range.

      Because the oral explanation for the sentence is ambiguous, we look to the

record, including the written statement of reasons, to discern the court’s intent in

imposing the sentence. Cf. May, 52 F.3d at 893. The statement of reasons

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resolves any ambiguity here: it makes clear that the court adopted the PSR

“without change”; determined a total offense level of 34, criminal history

category of VI, and guidelines imprisonment range of 262–327 months; imposed a

sentence below that range; and did so for a reason other than a plea agreement or

motion by the parties. Aple. Br. at 22. Thus, the district court’s finding that the

sentencing court adopted the guidelines range of 262–327 months and varied

downward is, at the very least, plausible in light of the record. This is true

especially when, as here, the reviewing court was also the sentencing court.

      Nevertheless, Ford maintains the court could not have varied downward in

imposing his sentence, because it never used the word “variance” at the

sentencing hearing. But “we need not rely solely on the district court’s isolated

use of the terms ‘variance’ or ‘departure’ when the court’s language is ambiguous

and our reading of the entire record suggests a contrary conclusion.” United

States v. Alapizco-Valenzuela, 546 F.3d 1208, 1222 (10th Cir. 2008). As

explained above, in its statement of reasons the court expressly adopted the PSR

“without change,” determined the guidelines range to be 262–327 months, and

imposed a sentence below that range. Echoing its comments from the sentencing

hearing, the court further explained it selected the sentence because it “found this

guideline range as agreed upon by the parties was a reasonable sentencing range

to meet the purposes identified by 18 U.S.C. § 3553(a).” Aple. Br. at 22–23.




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      On this record, we cannot agree with Ford that the district court’s finding

that the sentencing court varied downward to a sentence of 188 months was

clearly erroneous. Instead, the district court acted within its discretion when it

held Ford was legally ineligible for a reduction.

                                 II. Conclusion

      For these reasons, we AFFIRM the district court’s denial of Ford’s motion

for sentence reduction for lack of jurisdiction.

                                         Entered for the Court


                                         Timothy M. Tymkovich
                                         Chief Judge




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