                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  July 31, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 12-1025
          v.                                           (D. Colorado)
 VICTOR VALDEZ,                             (D.C. No. 1:05-CR-00374-PAB-22)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant, Victor Valdez, moved for a sentence reduction

pursuant to 18 U.S.C. § 3582(c)(2) to take advantage of the amended provisions


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of the United States Sentencing Commission, Guidelines Manual (“USSG”),

relating to crack cocaine. The district court granted the motion and revised

Valdez’s sentence to the extent allowed by the cocaine Guidelines amendments.

The court denied, however, any further reduction (like the one Valdez received in

his original sentence) based upon Valdez’s criminal history. On appeal, Valdez

contends that the court erred when it refused to depart downward one criminal

history category. For the reasons stated below, we hold that the Guidelines do not

permit the further remedy in question; thus, the district court did not err and we

affirm the revised sentence.



                                 BACKGROUND

      On March 31, 2006, Valdez pled guilty to one count of a second

superceding indictment charging him with conspiracy to possess with intent to

distribute five kilograms or more of cocaine and more than fifty grams of crack

cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) and

(b)(1)(A)(iii). After granting the Government’s motion for a 25% downward

departure for substantial assistance, pursuant to USSG §5K1.1, the district court

initially sentenced Valdez to 202 months’ imprisonment. Significantly for this

appeal, in calculating that sentence, the court reduced Valdez’s criminal history

from a category III to a category II after concluding that category III

“significantly over-represents the seriousness of [Valdez’s] criminal history and

                                         -2-
the likelihood that he will commit further crimes.” Mem. of Sent. Hr’g at 4, R.

Vol. 2 at 83.

      A series of motions followed, including Valdez’s motion to reduce his

sentence under 18 U.S.C. § 3582(c) in reliance on Amendment 706 to the

Guidelines, which retroactively lowered the base offense levels for crack cocaine

offenses. See USSG app. C, amend. 706 (effective Nov. 1, 2007). Because the

drug quantities involved in this case did not permit a reduction in Valdez’s base

offense level, the district court denied Valdez’s § 3582(c) motion based upon

Amendment 706. Our court affirmed that decision on direct appeal. United

States v. Valdez, 320 Fed. Appx. 863 (10th Cir. April 8, 2009) (unpublished).

      On November 1, 2011, another amendment altered the Guidelines

pertaining to crack cocaine. See USSG app. C, amend. 750 (effective Nov. 1,

2011). Amendment 750 retroactively implemented the Fair Sentencing Act

(“FSA”), which reduced the disparity between crack and powder cocaine

sentences from 100:1 to 18:1. 1 See Dorsey, 132 S. Ct. at 2329; United States v.

Osborn, 679 F.3d 1193, 1194 (10th Cir. 2012). Following this retroactive

Amendment, Valdez filed motions invoking Amendment 750 and seeking a

sentence of 128 or 129 months.

      1
       The FSA took effect on August 3, 2010. The Sentencing Commission
promulgated emergency Guidelines amendments implementing the FSA’s cocaine
revisions, which became effective on November 1, 2010. 75 Fed. Reg. 66188
(2010). A permanent version of those Guidelines amendments took effect on
November 1, 2011. See Dorsey v. United States, 132 S. Ct. 2321, 2329 (2012).

                                        -3-
      Subsequently, on December 2, 2011, the Government and the Federal

Public Defender appointed to represent Valdez jointly filed an “Unopposed

Motion for Retroactive Application of Sentencing Guidelines.” This motion

asked the court to reduce Valdez’s sentence to 176 months’ imprisonment. On

December 6, 2011, the United States Probation Office filed an Addendum to the

presentence report (“PSR”) recommending a 176-month sentence as well. Neither

the motion nor the addendum advocated for a further sentence reduction based on

a criminal history category reduction from III to II.

      One week later, Valdez, in turn, filed a pro se “Objection and Response,”

arguing that the joint “Unopposed Motion” was inadequate in that it failed to

advocate for an even lower sentence of 162 months, on the ground that the new

sentence should contain the same departure from criminal history category III to

II that the original sentence did. The district court then requested briefs from the

parties regarding the issue of whether USSG §1B1.10(b)(2)(B) allowed such a

criminal history departure and, if it did, whether it would be appropriate to so

depart in this case.

      Both the Government and the Federal Public Defender argued that such a

further departure was prohibited by the November 1, 2011, amendment to USSG

§1B1.10(b)(2)(B). Prior to its amendment, §1B1.10(b)(2)(B) provided in

pertinent part:




                                         -4-
      If the original term of imprisonment was less than the term of
      imprisonment provided by the guideline range applicable to the
      defendant at the time of sentencing, a reduction comparably less than
      the amended guideline range determined under subdivision (1) of this
      subsection may be appropriate. However, if the original term of
      imprisonment constituted a non-guideline sentence determined
      pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543
      U.S. 220 (2005), a further reduction generally would not be
      appropriate.

USSG §1B1.10(b)(2)(B) (2010). Following the 2011 permanent amendment, the

section now reads:

      If the term of imprisonment imposed was less than the term of
      imprisonment provided by the guideline range applicable to the
      defendant at the time of sentencing pursuant to a government motion
      to reflect the defendant’s assistance to authorities, a reduction
      comparably less than the amended guideline range determined under
      subdivision (1) of this subsection may be appropriate.

USSG §1B1.10(b)(2)(B) (2011) (emphasis added). The amended Application

Note 1 to the amended §1B1.10(b)(2)(B) provides that the “guideline range” in

the amended (current) section is “the offense level and criminal history category

determined pursuant to §1B1.10(a), which is determined before consideration of

any departure provision in the Guidelines Manual or any variance.” USSG

§1B1.10, comment. (n.1). The Government argues that this “change dramatically

narrowed the prior general provision, . . . and precluded [counsel] from arguing

that this guideline provision permits reductions based on prior grants of criminal

history departures.” Appellee’s Br. at 7.




                                         -5-
      On January 12, 2012, the district court issued its decision regarding

Valdez’s motion to further reduce his sentence:

      under §1B1.10(b)(2)(B), as amended effective November 1, 2011, the
      Court cannot reduce the term of imprisonment to a term comparably
      less than the amended guidelines range since §1B1.10(b)(2)(B) is
      now limited to below guideline sentences that occurred as a result of
      a government motion pursuant to § 5K1.1. A departure for over
      representation of criminal history would constitute an impermissible
      reduction below the minimum of the amended range. Thus, the Court
      will not reduce the defendant’s sentence to make it consistent with
      criminal history category II.

Mem. Regarding Def.’s Mot. to Reduce Sent. at 4, R. Vol. 2 at 409. Furthermore,

the court stated, “[a]fter considering the factors set forth in 18 U.S.C. § 3553(a),

the factors set forth in Paragraph 6 above, and the December 7, 2011 addendum to

the presentence investigation report, the Court determines that a sentence of 176

months is appropriate in this case.” Id. This appeal followed.



                                   DISCUSSION

      Valdez argues that the “district court imposed an unreasonable sentence

when it committed procedural and substantive error during the resentencing

process.” Appellant’s Br. at 11. More specifically, he claims the court erred

when it held, as a matter of law, that it could not reduce Valdez’s sentence on

resentencing on the ground that his criminal history category overrepresented his

actual criminal history. Valdez argues that “the uniqueness of the 3553(a)

factors, the fact that Mr. Valdez’s criminal history calculation significantly over-

                                          -6-
represents the seriousness of his actual criminal history, and the need to avoid

inconsistency between Mr. Valdez’s original sentence and his new sentence”

mandate a sentence no greater than 157 months. Id.

      The issue of the district court’s authority to reduce Valdez’s sentence based

on criminal history is the sole issue in this appeal, and it is a legal question which

we review de novo. United States v. Williams, 575 F.3d 1075, 1076 (10th Cir.

2009) (“We review de novo the scope of a district court’s authority in a

proceeding under § 3582(c)(2).”).

      After carefully considering the language of § 3582(c)(2), as well as the

relevant Guidelines provisions, we conclude that the district court correctly held

that it lacked authority to reduce Valdez’s sentence to a level below the amended

Guideline range based on the criminal history downward departure from category

III to category II made at Valdez’s original sentencing. Under 18 U.S.C.

§ 3582(c)(2), after a sentence has been imposed “a district court has the authority

to modify the sentence ‘in 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[,] . . . 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 Commission policy statements. Osborn, 679 F.3d at

1196 (quoting 18 U.S.C. § 3582(c)(2)); see also Dillon v. United States, 130 S.




                                          -7-
Ct. 2683, 2687 (2010). We accordingly consider the applicable Commission

policy statements.

       The policy statement governing § 3582(c)(2) proceedings is USSG

§1B1.10(b)(2)(B). By its current terms, it only permits a further reduction below

the minimum of an amended Guideline range to the extent the original term of

imprisonment was below the range then applicable “pursuant to a government

motion to reflect the defendant’s substantial assistance.” USSG

§1B1.10(b)(2)(B). Thus, on its face, the applicable Commission policy statement

appears to prohibit a sentence reduction based on anything other than substantial

assistance. 2

       Furthermore, the Commission policy statement provides that a court

proceeding under § 3582(c)(2) “shall substitute” the amended Guidelines range

for the initial range “and shall leave all other guideline application decisions

unaffected.” USSG §1B1.10(b)(1). Valdez suggests that the language relating to

leaving “all other guideline application decisions unaffected” actually supports

his view that his reduced criminal history category should be applied in the

§ 3582(c)(2) sentence reduction proceedings. As we explain more fully below,

the relevant Application Notes reject Valdez’s interpretation, because they make

it clear that the “guideline range” affected by a § 3582(c)(2) proceeding is the

       2
       Valdez has already received a reduction based upon his substantial
assistance. The issue in this case is whether he is entitled to a further reduction
based upon a criminal history category adjustment.

                                         -8-
range calculated before any departure or variance from the Guideline calculation.

See USSG §1B1.10, comment. (n.1(A)); see also Dillon, 130 S. Ct. at 2694

(“Because the aspects of his sentence that [defendant] seeks to correct were not

affected by the Commission’s amendment to §2D1.1, they are outside the scope of

the proceeding authorized by § 3582(c)(2), and the District Court properly

declined to address them.”).

      The Application Notes for §1B1.10 reinforce this interpretation:

“[e]ligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by

an amendment . . . that lowers the applicable guideline range (i.e., the guideline

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

which is determined before consideration of any departure provision in the

Guidelines Manual or any variance.” USSG §1B1.10, comment. (n.1(A)).

Additionally, the Application Notes expressly state that “[s]ubsection (b)(2)(B)

. . . applies if the term of imprisonment imposed was less than the term of

imprisonment provided by the guideline range applicable to the defendant at the

time of sentencing pursuant to a government motion to reflect the defendant’s

substantial assistance.” USSG §1B1.10, comment. (n.3). Thus, only “if” the term

of imprisonment was lowered pursuant to a substantial assistance motion may a

defendant seek a further reduction under USSG §1B1.10(b)(2)(B).

      Valdez further argues that 18 U.S.C. § 3553(a), which provides the

sentencing factors to be considered when a court imposes a sentence, supports his

                                         -9-
entitlement to a criminal history reduction upon resentencing. We disagree,

because a sentence reduction proceeding under § 3582(c)(2) does not provide a

new plenary sentencing opportunity. Dillon, 130 S. Ct. at 2694 (stating that

“§ 3582(c)(2) does not authorize a resentencing. Instead, it permits a sentence

reduction within the narrow bounds established by the Commission.”); United

States v. McGee, 615 F.3d 1287, 1293 (10th Cir. 2010) (noting that the Court in

Dillon “made clear that proceedings under § 3582(c)(2) are neither sentencing nor

resentencing proceedings”) (further quotation omitted). There is therefore no

obligation to re-examine all of those sentencing factors in the same manner as a

court does in an initial sentencing proceeding. 3

      Finally, the sparse case law on this issue supports our view. In United

States v. Glover, ___ F.3d ___, 2012 WL 2814303 (11th Cir. July 11, 2012), the

court stated, “[a]fter Amendment 759, . . . a district court may lower a

defendant’s sentence below the amended guidelines range only if the original

sentence was below the original guidelines range because the defendant provided

substantial assistance to the government.” Id. at *4 (emphasis added); accord,


      3
       In particular, Valdez alleges that the failure to grant him a criminal history
reduction in his § 3582(c)(2) sentence reduction proceeding violates § 3553(a)
because it allows there to be a disparity in applicable criminal history category
between his original sentence and his newer sentence. While § 3553(a)
disapproves of sentencing disparities, those prohibited disparities are between
different defendants in similar situations; the disfavored disparities are not
between an original sentence and a later reduced sentence for the same defendant.


                                         -10-
United States v. Anderson, ___ F.3d ___, 2012 WL 3023497, at *3 (8th Cir.

July 25, 2012) (noting that the Commission policy statement “limit[ed] reductions

below the amended guideline range to an amount comparable to an earlier

reduction for substantial assistance”); United States v. Anderson, 2012 WL

2673106, at *2 (7th Cir. July 6, 2012) (unpublished) (stating that a defendant

“whose original sentence was below the new Guideline range is eligible for relief

only if his original sentence was based on a downward departure based on

substantial assistance to the government”) (emphasis added).

      In United States v. Penn, 2012 WL 3017865 (W.D. Pa. July 23, 2012), the

defendant made the identical argument as Valdez makes in this case: defendant

“argues that the appropriate amended advisory guideline [pursuant to an 18

U.S.C. § 3582(c)(2) proceeding] should also include a reduction in his criminal

history category from V to IV, to reflect the fact that at [his original] sentencing

we stated that criminal history category IV was likely more reflective of

[defendant’s] actual criminal history.” Id. at *2. The court squarely rejected this

argument:

             Prior to the recent Amendments to the section 1B1.10, its
      Commentary, and Application Notes, it was permissible for a court
      who had varied or departed at the original sentencing upon imposing
      a retroactive reduction to a defendant’s sentence to reduce the
      sentence in the same proportion as the court varied or departed. That
      avenue is now foreclosed except in the cases of substantial
      assistance.




                                         -11-
Id. at *8 (emphasis added); accord, United States v. Flemming, 2012 WL 33019

(E.D. Pa. Jan. 5, 2012).

      Furthermore, courts have made it clear that, consistent with the language of

Application Note 1(A), the relevant Guideline range eligible for reduction under

an amended Guideline is the range determined before any departure provision,

such as a criminal history category reduction, in the Guidelines. See, e.g., United

States v. Rivera, 662 F.3d 166, 183 (2d Cir. 2011) (recognizing that the

November 1, 2011, amendment to §1B1.10 “prescribe[s] the precise construction

of applicable guideline range” . . . [to be] the pre-departure range from the initial

sentencing); United States v. Hinds, 2012 WL 73191, at *4 (E.D. Wis. Jan. 10,

2012) (noting that “the Commission clarified that the applicable guideline range

referred to in §1B1.10 is the guideline range determined before consideration of

any departure or variance”).

      In short, it is clear as a matter of law that the district court correctly held

that, except for a reduction for substantial assistance, it lacked the authority to

depart further from the amended Guideline on the ground that Valdez had

received a criminal history category reduction in his original sentencing

proceeding.




                                          -12-
                                CONCLUSION

      We accordingly affirm the district court’s decision denying Valdez any

further sentence reduction, and AFFIRM the sentence as revised.

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




                                      -13-
