                                                                               FILED
                                                                   United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                         May 25, 2017
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                        No. 16-2247
                                                (D.C. No. 1:08-CR-02436-JAP-1)
MATTHEW MOWERY,                                             (D.N.M.)

     Defendant - Appellant.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Defendant Matthew Mowery appeals the district court’s dismissal of his

motion for resentencing under 18 U.S.C. § 3582(c)(2). Because we conclude the

district court had authority to resentence Mowery, we reverse.

      In 2009, Mowery pleaded guilty to possession of methamphetamine with intent

to distribute. The Presentence Investigation Report (PSR) calculated a Guidelines




      *After examining the briefs and appellate record, this panel has
determined unanimously that oral argument wouldn’t 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.
This order and judgment isn’t binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. But it
may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
range of 168 to 210 months in prison. The district court adopted the PSR’s findings

and imposed a 168-month sentence.

      In 2015, Mowery filed a motion for sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2) and Amendment 782 to the United States Sentencing Guidelines.

Mowery asserted that Amendment 782, when applied retroactively to his sentence,

would reduce his offense level and result in a lower Guidelines range. The

government opposed the motion, and the district court dismissed the motion on the

basis that “Amendment 782 has not resulted in a lower sentencing range than what

this Court imposed previously.” R. vol. 1, 42; see § 3582(c)(2) (authorizing

resentencing only when the original sentence was “based on a sentencing range that

has subsequently been lowered by the Sentencing Commission”).

      Mowery filed a motion to reconsider the district court’s dismissal. This time,

the government conceded that the district court was authorized under § 3582(c)(2) to

resentence Mowery. Nevertheless, the district court again concluded that it lacked

authority to resentence Mowery, and it denied his motion to reconsider.

      Mowery appeals.1 The government concedes, as it did below, that Mowery is

eligible for resentencing. Exercising de novo review, see United States v. Rhodes,



      1
        Although Mowery’s notice of appeal designates only the district court’s
denial of his motion for reconsideration, we may review the district court’s initial
dismissal of Mowery’s motion for resentencing. See Bowdry v. United Airlines, Inc.,
58 F.3d 1483, 1489 n.11 (10th Cir. 1995) (holding that notice of appeal explicitly
designating denial of motion to reconsider was nevertheless sufficient to designate
original order); United States v. McKinney, No. 16-3252, 2017 WL 1130169, at *1-2
(10th Cir. Mar. 27, 2017) (unpublished) (reviewing underlying motion for
                                          2
549 F.3d 833, 837 (10th Cir. 2008), we reverse. The district court was authorized to

resentence Mowery because Amendment 782 lowered the applicable Guidelines

range.

         We begin by explaining Mowery’s original sentence. Based on the amount of

actual methamphetamine attributed to Mowery, his base offense level was 34. He

received a three-level reduction for accepting responsibility. And because he

committed the underlying offense while on supervised release for a 2005 drug

conviction, he received a three-level enhancement pursuant to U.S.S.G. § 3C1.3 and

18 U.S.C. § 3147(1). Accordingly, his total offense level was 34, which, when

combined with his category II criminal history, yielded a range of 168 to 210 months.

         The district court sentenced Mowery to 168 months in prison. But the district

court divided the sentence into two consecutive terms—the court attributed 121

months to the underlying drug offense and 47 months to the § 3147(1) enhancement.

This division was mandated by § 3147(1) itself, which provides that “[a] term of

imprisonment imposed under this section shall be consecutive to any other sentence

of imprisonment.” In explaining that requirement, the Guidelines state that “the court,

in order to comply with the statute, should divide the sentence on the judgment form

between the sentence attributable to the underlying offense and the sentence

attributable to the enhancement.” U.S.S.G. § 3C1.3 cmt. n.1. But despite that




resentencing even though “the notice of appeal designated the district court’s order
dismissing [defendant’s] motion to reconsider as the order appealed from”).
                                            3
division, Mowery’s sentence remained a “total punishment” that fell within the

applicable Guidelines range for the drug offense. Id.

      That Guidelines range—168 to 210 months—was subsequently lowered by

Amendment 782. Under the 2008 Guidelines, the drug quantity attributable to

Mowery resulted in a base offense level of 34. Amendment 782 lowered the base

offense level to 32, and Amendment 788 made that reduction retroactive. When

calculating an amended Guidelines range under § 3582(c)(2), “the court shall . . .

leave all other guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1).

Here, after lowering Mowery’s new base offense level by three for accepting

responsibility and raising it by three for the § 3147(1) enhancement—just as the first

sentencing court did—Mowery’s amended total offense level is 32. That corresponds

to a Guidelines range of 135 to 168 months. Because that range is lower than

Mowery’s original range of 168 to 210 months, he is eligible for resentencing under

§ 3582(c)(2). See Dillon v. United States, 560 U.S. 817, 819 (2010).2

      In dismissing Mowery’s motion, the district court relied on our decision in

United States v. Kurtz, 819 F.3d 1230 (10th Cir. 2016). There, we noted that a court

can’t “reduce the defendant’s term of imprisonment . . . to a term that is less than the

minimum of the amended guideline range.” Id. at 1234 (alteration in original)

(quoting U.S.S.G. § 1B1.10(b)(2)(A)). The original sentencing court in Kurtz


      2
         Of course, Mowery’s mere eligibility for resentencing doesn’t require the
district court to lower his sentence. See Dillon, 560 U.S. at 827 (explaining that
“§ 3582(c)(2) instructs a court to consider any applicable § 3553(a) factors and
determine whether, in its discretion, the reduction . . . is warranted”).
                                           4
sentenced the defendant to 78 months in prison based on a Guidelines range of 151 to

188 months. Id. at 1235 & n.1. When Amendment 782 subsequently lowered the

defendant’s Guidelines range to 121 to 151 months, the district court therefore lacked

authorization to reduce the defendant’s sentence (because 78 months is less than 121

months). Id. at 1235.

      Here, the district court noted that the portion of Mowery’s original sentence

attributed to the drug offense was 121 months. Relying on Kurtz, the district court

concluded that because 121 months is lower than the low end of Mowery’s amended

Guidelines range of 135 to 168 months, Mowery is ineligible for a reduced sentence.

      The district court erred in bifurcating Mowery’s sentence and considering only

the 121 months attributed to the underlying drug offense. Although the original

sentencing court was required to delineate the portions of the sentence attributed to

the drug offense and the § 3147(1) enhancement, Mowery’s “total punishment” was

168 months. See U.S.S.G. § 3C1.3 cmt. n.1. The Guidelines offer the following

illustration: “For example, if the applicable adjusted guideline range is 30-37 months

and the court determines a ‘total punishment’ of 36 months is appropriate, a sentence

of 30 months for the underlying offense plus 6 months under 18 U.S.C. [§] 3147

would satisfy this requirement.” Id.

      The original sentencing court determined that Mowery’s total sentence was

168 months. And it constructed a divided sentence that satisfied § 3147(1) and

U.S.S.G. § 3C1.3 cmt. n.1. But as the government notes, § 3147(1) doesn’t set forth

“a separate offense of conviction.” United States v. Browning, 61 F.3d 752, 756 (10th

                                           5
Cir. 1995). Rather, it is “strictly a sentencing enhancement provision.” Id.

Accordingly, a § 3147(1) enhancement operates in the same way “as in any other

case in which a [Guidelines] adjustment applies.” U.S.S.G. § 3C1.3 cmt. n.1. It

differs from ordinary adjustments only in that the sentencing court is required to

attribute to it a specific number of months. Id.; see § 3147(1). But that attribution

doesn’t change the fact that the court renders a “total punishment” that must fall

within “the guideline range for the offense committed.” U.S.S.G. § 3C1.3 cmt. n.1.

      Thus, when determining whether a defendant’s original sentence falls below an

amended Guidelines range, the correct point of comparison is the defendant’s total

original sentence—even when that sentence includes a § 3147(1) enhancement. And

because Mowery’s 168-month sentence is higher than the low end of his amended

Guidelines range—135 to 168 months—Mowery is eligible for resentencing.

      Accordingly, we reverse the district court’s order dismissing Mowery’s motion

for resentencing and remand for further proceedings.3


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




      3
        In his opening brief, Mowery requests a certificate of appealability (COA).
But because this appeal doesn’t concern a habeas corpus proceeding, no COA is
required. Cf. 28 U.S.C. § 2253(c)(1). We therefore deny Mowery’s request for a COA
as moot.
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