                                                                            FILED
                     UNITED STATES COURT OF APPEALS
                                                                             JUN 06 2017
                            FOR THE NINTH CIRCUIT                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                         No. 13-10080

              Plaintiff - Appellant,              D.C. No. 4:09-cr-00745-DLJ-1
                                                  Northern District of California,
  v.                                              Oakland

JIMMY LEE THORNTON,
                                                  ORDER
              Defendant - Appellee.


Before: THOMAS, Chief Judge, and FISHER and BERZON, Circuit Judges.

       The disposition filed on December 27, 2016 is WITHDRAWN and replaced

by the superseding disposition filed concurrently with this order.

       With that substitution, the panel has voted to deny the petition for rehearing.

Chief Judge Thomas and Judge Berzon vote to deny the petition for rehearing en

banc, and Judge Fisher so recommends.

       The full court was advised of the petition for rehearing en banc and no judge

has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

Appellee’s petition for panel rehearing and petition for rehearing en banc are

DENIED.
                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 06 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10080

              Plaintiff - Appellant,             D.C. No. 4:09-cr-00745 DLJ-1

 v.                                              MEMORANDUM*


 JIMMY LEE THORNTON,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    D. Lowell Jensen, District Judge, Presiding

                       Argued and Submitted March 13, 2014
                            San Francisco, California

Before: THOMAS, Chief Judge, and FISHER and BERZON, Circuit Judges.

      The United States appeals from the district court’s order reducing the prison

sentence of defendant-appellee Jimmy Lee Thornton pursuant to 18 U.S.C. §

3582(c)(2). We ordered supplemental briefing regarding whether our en banc



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
opinion in United States v. Davis, 825 F.3d 1014 (9th Cir. 2016), affected

Thornton’s case. We conclude that Thornton is ineligible for a sentence reduction

even in light of Davis, and so reverse.

        A defendant is generally eligible for a sentence reduction when he or she is

sentenced “based on a sentencing range [under the United States Sentencing

Guidelines] that has subsequently been lowered by the Sentencing Commission.”

18 U.S.C. § 3582(c)(2). The parties agree that Thornton faced a mandatory

minimum sentence of 60 months’ imprisonment, that the calculated Guidelines

range in Thornton’s case was initially 46 to 57 months, and that subsequent

amendments to the Guidelines would have lowered the calculated range to 30-37

months. The parties dispute only whether Thornton’s sentence was actually “based

on” the calculated range.

        Davis adopted the reasoning of Justice Kennedy’s plurality opinion in

Freeman v. United States, 564 U.S. 522, 534 (2011), concluding that even when a

sentence is determined by a Rule 11(c)(1)(C) agreement, that sentence is “likely”

based on the Guidelines. Davis held that “a defendant should be eligible for a

sentence reduction when one factor in a defendant’s sentence was a ‘since-rejected

Guideline.’” 825 F.3d at 1027 (emphasis added) (quoting Freeman, 564 U.S. at

530).

                                           2
      Thornton’s plea agreement expressly stated that his sentence “should be

calculated pursuant to the Sentencing Guidelines,” and recognized that a “sentence

of imprisonment within the Guidelines range set forth [in the agreement]” was

reasonable. We therefore conclude that the calculated Guidelines range was a

factor in Thornton’s sentence.

      Thornton is nevertheless ineligible for a sentence reduction because the

mandatory minimum sentence applicable to him displaced the calculated

Guidelines range. Although the government concedes that it did not raise this

argument before the district court, we have held that eligibility for a sentencing

reduction under 18 U.S.C. § 3582(c)(2) is a jurisdictional question. United States

v. Spears, 824 F.3d 908, 916 (9th Cir. 2016). We are therefore required to consider

the question regardless of whether the parties raised it below.

      The Guidelines state that “[w]here a statutorily required minimum sentence

is greater than the maximum of the applicable guideline range, the statutorily

required minimum sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b)

(emphasis added). The policy statement applicable at the time of Thornton’s 2010

sentencing provides that a reduction is not appropriate when a mandatory

minimum displaces a Guidelines range. See 18 U.S.C. § 3582(c)(2) (requiring that

any reduction be “consistent with applicable policy statements issued by the

                                          3
Sentencing Commission.”).      The relevant policy statement instructed that “a

reduction in the defendant’s term of imprisonment is not authorized under 18

U.S.C. § 3582(c)(2) and is not consistent with this policy statement if . . . an

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

guideline range because of the operation of another guideline or statutory provision

(e.g., a statutory mandatory minimum term of imprisonment).” U.S.S.G. §

1B1.10(a) cmt. n.1 (emphasis added). Here, although Thornton’s Guidelines range

would normally have been 46 to 57 months, his 60-month mandatory minimum

sentence displaced that range. Thornton is thus ineligible for a sentence reduction.

      The circuits that have addressed this question have likewise concluded that

where a mandatory minimum is higher than a calculated Guidelines range, and is

binding on the district court, the mandatory minimum becomes the Guidelines

sentence, and the defendant is ineligible for § 3582(c) relief. The Ninth Circuit

also has so held, albeit in cases decided before Freeman and Davis. See United

States v. Jackson, 577 F.3d 1032, 1035–36 (9th Cir. 2009) and United States v.

Mullanix, 99 F.3d 323, 324 (9th Cir. 1996); see also United States v. Joiner, 727

F.3d 601, 606–08 (6th Cir. 2013); United States v. Robinson, 697 F.3d 443, 444

(7th Cir. 2012); United States v. McClain, 691 F.3d 774, 777–80 (6th Cir. 2012);

United States v. Glover, 686 F.3d 1203, 1206–07 (11th Cir. 2012); United States v.

                                           4
Williams, 551 F.3d 182, 185 (2d Cir. 2009).

      We hold that Thornton was ineligible for a sentence reduction because of the

applicability of a statutory minimum in excess of his calculated Guidelines range.

Accordingly, the district court’s order granting Thornton’s motion to reduce his

sentence is REVERSED, and the reduced sentence is VACATED. We remand to

the district court; on remand, the district court is to reinstate the original sentence

of 96 months’ imprisonment.




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