United States v. Ford , 675 F. App'x 832 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
January 10, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-3032
(D.C. No. 2:03-CR-20123-CM-TJJ-6)
TIMOTHY HANS FORD, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit
Judges. **
Timothy Hans Ford pleaded guilty to possession with intent to distribute
cocaine base within one thousand feet of an elementary school. Ford and the
government agreed to a non-binding plea agreement stipulating the drug quantity
attributable to Ford. The parties agreed that Ford’s base offense level under the
United States Sentencing Guidelines should be determined according to that
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
Per the court’s June 28, 2016 Order, the panel granted the Appellant’s
motion to waive oral arguments. This case was submitted on the briefs.
stipulated amount. Before sentencing, however, the Presentence Report (PSR)
recommended a higher guidelines range of 262–327 months, based on a greater
drug quantity than that set forth in the plea agreement, which would have
produced a lesser guidelines range of 168–210 months.
The parties disputed which drug quantity and corresponding guidelines
range the court should adopt, but ultimately agreed they would both accept a
sentence within the lower range of 168–210 months. The district court sentenced
Ford to 188 months’ imprisonment, indicating in its written statement of reasons
that it had adopted the PSR without change, determined the guidelines range was
262–327 months, and varied downward to a sentence to which the parties agreed.
In 2014, the Sentencing Commission adopted amendments to the guidelines
(Amendments 782 and 788) that retroactively reduced base-offense levels
corresponding to drug quantities. Ford then filed a motion for sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2), which allows courts to modify a defendant’s
term of imprisonment if the defendant was sentenced based on a guidelines range
“that has been subsequently lowered by the Sentencing Commission . . . if such a
reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” Ford claimed he was eligible for a two-level sentence reduction
under Amendment 782, because he was sentenced based on an agreement
governing the applicable guidelines range. Ford also argued his 188-month
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sentence was a guidelines sentence within the 168–210 months range, not a
variance, and thus he was eligible for a reduction.
The district court disagreed and concluded Ford’s sentence was the result of
a downward variance from a guidelines range of 262–327 months. Because the
two-level reduction would result in a new range of 210–262 months, which was
still above Ford’s existing 188-month sentence, Ford was legally ineligible for
relief. Thus, the district court denied his motion for lack of jurisdiction. Ford
appealed, arguing the district court’s conclusion was based on a clearly erroneous
factual finding—namely, that the sentencing court adopted the higher range and
varied downward.
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we
affirm.
I. Analysis
We review the district court’s denial of a motion for sentence reduction for
an abuse of discretion. United States v. Battle, 706 F.3d 1313, 1317 (10th Cir.
2013). “A district court abuses its discretion when it relies on an incorrect
conclusion of law or a clearly erroneous finding of fact.” Id. A finding of fact
“is clearly erroneous only ‘if it is without factual support in the record or if [this]
court, after reviewing all the evidence, is left with a definite and firm conviction
that a mistake has been made.’” United States v. Patron-Montano, 223 F.3d 1184,
1188 (10th Cir. 2000) (alteration in original) (quoting Manning v. United States,
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146 F.3d 808, 812 (10th Cir. 1998)). “If the district court’s account of the
evidence is plausible in light of the record viewed in its entirety,” we may not
reverse, even if we would have weighed the evidence differently. See Anderson
v. Bessemer City, 470 U.S. 564, 573–74 (1985).
Courts may modify a defendant’s term of imprisonment if the defendant
was sentenced based on a guidelines range “that has been subsequently lowered
by the Sentencing Commission . . . if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2). In Amendment 782, the Sentencing Commission revised the
Guidelines applicable to drug trafficking offenses by changing how the base
offense levels incorporate the statutory mandatory minimum penalties. See U.S.
Sentencing Guidelines Manual, app. C, Amend. 782 (U.S. Sentencing Comm’n
2014). And Amendment 788 makes Amendment 782 applicable retroactively.
See id., Amend. 788.
Any sentence reduction under § 3582(c)(2), however, must not result in a
reduced term of imprisonment that is “less than the minimum of the amended
guideline range.” See USSG § 1B1.10. Thus, a defendant is eligible for a
sentence reduction if (1) Amendment 782 is applicable and lowers the defendant’s
previously calculated guidelines sentencing range; and (2) the defendant did not
previously receive a sentence at or below the bottom of the now-amended range.
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Ford contends the district court erred in concluding he was legally
ineligible for a § 3582(c)(2) sentence reduction, because the court based its denial
of Ford’s motion on a clearly erroneous factual finding: that his sentencing range
was 262–327 months and his 188-month sentence was the result of a downward
variance from that range. Ford believes the sentencing court adopted the parties’
agreed-upon range of 168–210 months at the sentencing hearing, notwithstanding
the written statement of reasons. The government, on the other hand, argues the
court indicated orally and in the statement of reasons that it intended to impose a
downward variant sentence. On this record, the government contends, the district
court’s factual finding is at least plausible—all that is required under clear-error
review. We agree, because we find the sentencing court’s written statement of
reasons resolves any ambiguity in the court’s oral pronouncements.
“It is a firmly established and settled principle of federal criminal law that
an orally pronounced sentence controls over a judgment and commitment order
when the two conflict.” United States v. Villano, 816 F.2d 1448, 1451 (10th Cir.
1987). “When an orally pronounced sentence is ambiguous, however, the
judgment and commitment order is evidence which may be used to determine the
intended sentence.” Id. (citations omitted); see also United States v. Thomas, 757
F.3d 806, 809–10 (8th Cir. 2014) (looking to written statement of reasons where
the court’s oral pronouncement was ambiguous as to the applicable sentencing
range and basis for imposing the chosen sentence). In determining whether an
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oral sentence is ambiguous, we consider “only the words used by the sentencing
court in formally pronouncing a sentence.” United States v. Barwig, 568 F.3d
852, 856 (10th Cir. 2009) (citing Villano, 816 F.2d at 1450–53, 1451 n.3). Most
sentencing ambiguities can be resolved by reviewing the record, including the
written judgment and commitment order, “to ascertain the intent of the sentencing
judge and identify the terms of the sentence.” See United States v. May, 52 F.3d
885, 893 (10th Cir. 1995). If the record, including the statement of reasons, does
not resolve the ambiguity, “the best course of action is [to remand] to allow the
district court the opportunity to clarify its intentions.” Thomas, 757 F.3d at 810.
Here, the court’s statements at the sentencing hearing were ambiguous as to
the basis for the court’s decision to impose a 188-month sentence. On the one
hand, the court found the PSR was accurate. On the other hand, the court stated
the 168–210-month range agreed to by the parties was sufficient to meet the
sentencing purposes in § 3553(a). The court also referred to “the presentence
investigation report as modified by the court and the previously stated findings.”
App., Vol. 2 at 53. Based on these conflicting oral pronouncements, it is unclear
whether the court adopted the range in the PSR and varied downward or adopted
the lower range and selected a 188-month sentence within that range.
Because the oral explanation for the sentence is ambiguous, we look to the
record, including the written statement of reasons, to discern the court’s intent in
imposing the sentence. Cf. May, 52 F.3d at 893. The statement of reasons
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resolves any ambiguity here: it makes clear that the court adopted the PSR
“without change”; determined a total offense level of 34, criminal history
category of VI, and guidelines imprisonment range of 262–327 months; imposed a
sentence below that range; and did so for a reason other than a plea agreement or
motion by the parties. Aple. Br. at 22. Thus, the district court’s finding that the
sentencing court adopted the guidelines range of 262–327 months and varied
downward is, at the very least, plausible in light of the record. This is true
especially when, as here, the reviewing court was also the sentencing court.
Nevertheless, Ford maintains the court could not have varied downward in
imposing his sentence, because it never used the word “variance” at the
sentencing hearing. But “we need not rely solely on the district court’s isolated
use of the terms ‘variance’ or ‘departure’ when the court’s language is ambiguous
and our reading of the entire record suggests a contrary conclusion.” United
States v. Alapizco-Valenzuela, 546 F.3d 1208, 1222 (10th Cir. 2008). As
explained above, in its statement of reasons the court expressly adopted the PSR
“without change,” determined the guidelines range to be 262–327 months, and
imposed a sentence below that range. Echoing its comments from the sentencing
hearing, the court further explained it selected the sentence because it “found this
guideline range as agreed upon by the parties was a reasonable sentencing range
to meet the purposes identified by 18 U.S.C. § 3553(a).” Aple. Br. at 22–23.
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On this record, we cannot agree with Ford that the district court’s finding
that the sentencing court varied downward to a sentence of 188 months was
clearly erroneous. Instead, the district court acted within its discretion when it
held Ford was legally ineligible for a reduction.
II. Conclusion
For these reasons, we AFFIRM the district court’s denial of Ford’s motion
for sentence reduction for lack of jurisdiction.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
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