Submitted: October 15, 2018
from United States District Court for the District of
Minnesota - St. Paul
WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
COLLOTON, Circuit Judge.
government appeals an order of the district court reducing
Stirling Heaton's term of imprisonment in light of
Amendment 782 to the United States Sentencing Guidelines.
Consistent with United States v. Helm, 891 F.3d 740
(8th Cir. 2018), we conclude that the district court
impermissibly reduced Heaton's sentence below his amended
guideline range, so we reverse and remand for resentencing.
pleaded guilty in 2012 to a conspiracy to participate in
racketeering activity, and the district court sentenced him
to 115 months' imprisonment. The court arrived at the
sentence by first calculating an advisory guideline range of
130 to 162 months' imprisonment, based on a total offense
level of 28 and a criminal history category V, and choosing a
sentence of 136 months within that range. Applying USSG
§ 5G1.3(b)(1), the court then adjusted the sentence
downward by 18 months, based on time that Heaton had served
in state custody on an undischarged term of imprisonment for
an offense that was relevant conduct to the federal offense.
The court reduced the term by another three months under 18
U.S.C. § 3553(a) to account for "good time
credit" that Heaton could have earned in federal custody
for the 18 months served in state custody. Accordingly, the
court imposed a final sentence of 115 months'
2014, the Sentencing Commission promulgated Amendment 782,
which reduced the offense level for many drug-related
offenses. See USSG App. C, Amend. 782 (2014).
Because the underlying offenses for Heaton's racketeering
conspiracy involved drug trafficking, and thus triggered
application of the drug trafficking guideline, see
USSG § 1B1.2(a), the amendment reduced Heaton's base
offense level by two, from 26 to 24, and his total offense
level from 28 to 26. Compare USSG § 2D1.1(c)(7)
(2011), with USSG § 2D1.1(c)(8) (2014).
then moved to reduce his sentence under 18 U.S.C. §
3582(c)(2). That provision allows a court to reduce a
defendant's term of imprisonment based on a retroactive
amendment to the guidelines, if the reduction is
"consistent with applicable policy statements issued by
the Sentencing Commission." 18 U.S.C. § 3582(c)(2).
One such policy statement forbids a court (with an exception
not applicable here) to "reduce the defendant's term
of imprisonment under 18 U.S.C. § 3582(c)(2) and this
policy statement to a term that is less than the minimum
of the amended guideline range." USSG §
1B1.10(b)(2)(A) (emphasis added).
district court granted Heaton's motion and reduced his
sentence to 98 months' imprisonment. The court reasoned
that Heaton's "amended Guidelines range" was 92
to 119 months. The court calculated an "initial
Guidelines range" of 110 to 137 months, based on a new
total offense level of 26 and criminal history category V,
and then subtracted the 18-month adjustment under USSG §
5G1.3(b)(1) for time served in state custody. After
considering the factors set forth in 18 U.S.C. §
3553(a), the court arrived at a sentence of 98 months.
government argues on appeal that the "amended guideline
range" for Heaton was 110 to 137 months'
imprisonment, and that the court erred by reducing
Heaton's term below 110 months. For reasons explained in
Helm, we agree. The guideline range corresponds to
the defendant's offense level and criminal history
category. Section 5G1.3(b) does not enter into the
calculation of an amended guideline range. 891 F.3d at
742-43. Therefore, Heaton's "amended guideline
range" was 110 to 137 months' imprisonment. Any
reduction below 110 months was inconsistent with the policy
statement in USSG § 1B1.10(b)(2)(A) and thus
unauthorized by 18 U.S.C. § 3582(c)(2).
argues that the sentence was consistent with § 1B1.10,
because his "term of imprisonment" includes the 18
months that he served in state custody. On that view, his
term was not 98 months, but 116 months. See United States
v. Brito, 868 F.3d 875, 881 (9th Cir. 2017). In our
view, the text of § 1B1.10(b)(2)(A) cannot bear this
interpretation. See id. at 883-84 (McKeown, J.,
dissenting). The phrase "term of imprisonment" in
§ 1B1.10(b)(2)(A) refers to the same phrase in 18 U.S.C.
§ 3582(c)(2). Section 3582(c)(2), in turn, applies to
"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," and allows the federal court to reduce that
"term of imprisonment." 18 U.S.C. § 3582(c)(2)
(emphasis added). The phrase "term of imprisonment"
does not include time served in state custody. A defendant in
federal court has not "been sentenced to" a term in
state custody "based on a sentencing range" under
the federal sentencing guidelines. A federal district court
does not impose state sentences or reduce state terms of
argues alternatively that § 1B1.10 is unconstitutional
if it limits a sentence reduction to the bottom of the
amended guideline range. He asserts that it is irrational for
the guidelines to permit a "full" reduction under
§ 3582(c) for a defendant who serves concurrent
sentences in federal custody, but to deny the same reduction
to a defendant who served some of his time in state custody.
We are not convinced that the Commission's guideline
lacks any rational basis. The Commission has observed that
prohibiting a reduction below the amended guideline range
"promotes conformity with the amended guideline range
and avoids undue complexity and litigation." USSG App.
C, Amend. 759 (2011). Line-drawing problems are inevitable
under the guidelines. As we noted in Helm, for
example, the policy statement has the effect of treating
discharged and undischarged sentences alike in § 3582(c)
proceedings, whereas Heaton's approach has prompted
objections to a distinction in treatment on that score.
See United States v. Gonzalez-Murillo, 852 F.3d
1329, 1342-43 (11th Cir. 2017) (Rosenbaum, J., concurring).
The Commission might have chosen a more complex system of
reductions under which a district court could account for
adjustments under § 5G1.3, or even for variances based
on hypothetical "good time credit" for time served
in state custody. But it is not irrational for the Commission
to avoid "undue complexity and litigation" by
adopting a uniform limitation tied to the amended guideline
foregoing reasons, we vacate Heaton's sentence and remand
for a resentencing consistent with the limitation that the
sentence must not be less than the ...