United States v. Gilchrist ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT February 8, 2019
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-3155
(D.C. No. 2:12-CR-20066-KHV-40)
CARLOS VINCENT GILCHRIST, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
In 2013, Carlos Gilchrist pled guilty to conspiracy to manufacture, to possess with
intent to distribute, and to distribute 280 or more grams of cocaine. 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii). The Fed. R. Crim. P. 11(c)(1)(C) plea
*
Oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). We have decided this case on the briefs.
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not encouraged, but not prohibited.
Fed. R. App. 32.1. Citation is appropriate as it relates to law of the case, issue preclusion
and claim preclusion. Unpublished decisions may also be cited for their persuasive
value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by
an appropriate parenthetical notation B (unpublished). Id.
agreement called for a stipulated sentence of 180 months’ imprisonment. The Presentence
Report (PSR) determined Gilchrist was a “career offender” under § 4B1.1 of the United
States Sentencing Guidelines (USSG), which resulted in a guideline range of 292 to 365
months’ imprisonment. The district judge adopted the PSR but accepted the plea
agreement and sentenced him to the stipulated lesser term. Subsequently, the United
States Sentencing Commission retroactively lowered the base offense levels in USSG
§ 2D1.1 for most drug crimes (Amendment 782). See USSG Supp. to App. C,
Amendments 782, 788 (2016).
Gilchrist moved for a sentence reduction under 18 U.S.C. § 3582(c)(2) and
Amendment 782.1 Under § 3582(c)(2), a court may reduce a defendant’s sentence only if
it was “based on a sentencing range that has subsequently been lowered by the
Sentencing Commission.” The district court dismissed Gilchrist’s motion for lack of
jurisdiction. The judge concluded Gilchrist was ineligible for a sentence reduction
because his sentencing range was based on the career offender guideline, to which
Amendment 782 had no effect. Gilchrist timely appeals; our review is de novo. United
States v. Chavez-Meza, 854 F.3d 655, 657 (10th Cir. 2017).
Gilchrist argues he is eligible for a sentence reduction because the judge relied on
his guideline range in deciding whether to accept the Rule 11(c)(1)(C) agreement and
stipulated sentence. See Hughes v. United States, __ U.S. __, 138 S. Ct. 1765, 1775
1
Because Gilchrist appears pro se, we have liberally construed his pleadings but
have not served as his advocate. See United States v. Pinion, 584 F.3d 972, 975 (10th Cir.
2009).
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(2018) (holding a defendant sentenced under a Rule 11(c)(1)(C) plea agreement may be
eligible for a sentence reduction under § 3582(c)(2) if the guideline range “was part of
the framework the district court relied on in imposing the sentence or accepting the
agreement”). True, as far as it goes. His Rule 11(c)(1)(C) plea agreement and the
conforming sentence do not necessarily render him ineligible for a sentence reduction,
but he still must satisfy § 3582(c)(2), namely its requirement that his sentence was “based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission.” This he cannot do.
Amendment 782 had no effect on the career offender guideline. See United States
v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008); see, e.g., United States v. Akers, 892
F.3d 432, 434 (D.C. Cir. 2018); United States v. Mateo, 560 F.3d 152, 155 (3d Cir.
2009). Gilchrist’s applicable § 4B1.1 guideline range thus remains unchanged by the
revisions to the drug quantity tables in USSG § 2D1.1 under Amendment 782: his offense
level remains 35, his criminal history category remains VI, and his applicable guideline
sentencing range remains 292 to 365 months. Because Amendment 782 has no impact on
Gilchrist’s applicable guideline range, he is not eligible for the requested sentence
modification under § 3582(c)(2).
According to Gilchrist, this creates unfair disparities in sentences imposed for
similarly situated defendants. But in so arguing, he completely ignores the career
offender guideline, which served as the basis for his sentence, and focuses solely on the
drug quantity tables Amendment 782 addressed. All defendants, like Gilchrist, sentenced
as career offenders are in the same boat—none is eligible for a sentence reduction under
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§ 3582(c)(2) based on the changes to the drug quantity tables made by Amendment 782.
See Koons v. United States, __ U.S. __, 138 S. Ct. 1783, 1790 (2018) (refuting petitioners’
argument that denying them relief under § 3582(c)(2) would create “unjustifiable
sentencing disparities” because “[i]dentically situated defendants sentenced today may
receive the same sentences as petitioners received” (quotations omitted)).
Since Gilchrist is ineligible for a sentence reduction, the judge appropriately
dismissed his § 3582(c)(2) motion for lack of jurisdiction. See United States v. White, 765
F.3d 1240, 1250 (10th Cir. 2014). We AFFIRM.
Gilchrist’s request to proceed on appeal without prepayment of fees (in forma
pauperis or ifp) is DENIED AS MOOT because we have reached the merits of this
appeal. All other pending motions are DENIED AS MOOT.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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