                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 6 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10542

                Plaintiff-Appellant,            D.C. No. 4:09-cr-00203-CW-1

 v.
                                                MEMORANDUM*
DESEAN NATHANIEL GARDNER,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                    Claudia Wilken, District Judge, Presiding

                      Argued and Submitted March 15, 2018
                           San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and RAKOFF,** Senior
District Judge.

      The Government appeals the district court’s order granting the pro se motion

of defendant Desean Nathaniel Gardner for a sentence reduction pursuant to 18

U.S.C. § 3582(c)(2) and U.S. Sentencing Guidelines Manual (“USSG”)



      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The Honorable Jed S. Rakoff, Senior United States District Judge for the
Southern District of New York, sitting by designation.
Amendment 782, which reduced the offense levels assigned to drug quantities in

USSG § 2D1.1 (U.S. Sentencing Comm’n 2016). We reverse.

      Although courts generally “may not alter a term of imprisonment once it has

been imposed,” United States v. Ornelas, 825 F.3d 548, 549 (9th Cir. 2016)

(quoting 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)), 18 U.S.C.

§ 3582(c)(2) allows modification when: (1) the sentence is “based on a sentencing

range that has subsequently been lowered by the Sentencing Commission” and (2)

“such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.” The primary policy statement relevant here provides that

a court may reduce a defendant’s sentence if “the guideline range applicable to that

defendant has subsequently been lowered as a result of an amendment to the

Guidelines.” USSG § 1B1.10(a)(1) (emphasis added). It further provides that “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.” USSG § 1B1.10(2)(A).

      Here, the district court’s re-sentencing order was erroneous as a matter of

law, and therefore an abuse of discretion, because it reduced Gardner’s term of

imprisonment to a term less than the minimum of the amended guideline range.

Gardner argues that his applicable guideline range is the non-career offender

powder cocaine guideline. We disagree. The “applicable” guideline range is “the


                                          2
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.” USSG §

1B1.10 cmt. n.1(A). The district court’s rejection of the crack/powder disparity on

policy grounds, and its rejection of the career offender guidelines’ implications to

Gardner’s case, constituted variances from Gardner’s “applicable” range. See

Kimbrough v. United States, 552 U.S. 85, 111 (2007) (holding that district court’s

“downward variance” from the guideline range based on a policy disagreement

with the crack/powder disparity was not an abuse of discretion); see also United

States v. Henderson, 649 F.3d 955, 963 (9th Cir. 2011) (“[S]imilar to the crack

cocaine Guidelines, district courts may vary from the child pornography

Guidelines, § 2G2.2, based on policy disagreement with them.” (emphasis added)).

      Therefore, Gardner’s applicable guideline range was the one determined

using an offense level of 37, based on the drug quantity guidelines,1 and a criminal

history category of VI, based on Gardner’s stipulation that he is a career offender.

As the parties agreed at sentencing, this offense level and criminal history category

correspond to a guideline range of 360 months to life. Amendment 782 lowers


      1
        Gardner stipulated in the plea agreement that his base offense level was 36
because his offense involved at least 2.8 but less than 8.4 kilograms or more of
crack cocaine. He further stipulated that his adjusted offense level was 37,
accounting for his role as an organizer/leader under USSG § 3B1.1(a) and his
acceptance of responsibility under USSG § 3E1.1.

                                          3
Gardner’s total offense level to 35, see USSG § 2D1.1(c)(3), resulting in a

guideline range of 292 to 365 months. The district court originally imposed a

sentence of 235 months. Since this sentence was below the minimum of the

amended guideline range, Gardner is ineligible for a sentence reduction. See USSG

§ 1B1.10(a)(2)(B); Ornelas, 825 F.3d at 550 (“[I]f 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.”).

      We would reach the same result even assuming, as the parties’ briefing does,

that the relevant drug quantity offense level was the powder cocaine offense level

rather than the crack offense level. Gardner stipulated to being a career offender.

The guideline range corresponding to his career offender status would then be the

“applicable” range because his offense level was higher when calculated using the

career offender guidelines than when calculated under the drug quantity tables for

powder cocaine. See USSG § 4B1.1.2 Since the career offender guidelines have not

subsequently been lowered, Gardner is ineligible for a sentence reduction. See



      2
        Gardner contends that the Government has waived the argument that
Gardner is ineligible for a sentence reduction under the “applicable to” prong
because the Government did not make this exact argument until its reply brief.
However, “it is claims that are deemed waived or forfeited, not arguments.” United
States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). The Government
argued below and in its opening brief here that Gardner is ineligible for a reduced
sentence. And to avoid any prejudice to Gardner, we allowed him to submit a
supplemental brief on the “applicable to” issue.

                                          4
United States v. Pleasant, 704 F.3d 808, 811-12 (9th Cir. 2013), overruled on other

grounds by United States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc).

      REVERSED.




                                        5
