In United States v. Leroy Derry, Docket No. 15-1829-cr, which was issued yesterday but amended today, the Circuit (by Judge Parker, joined by Judges Pooler and Livingston) ruled as a matter of statutory interpretation that Derry was ineligible for a second sentence reduction under 18 U.S.C. § 3582(c)(2) because the new 2015 amendment (under which he was seeking the second reduction) did not lower the range determined by a prior Guideline amendment in 2011, under which Derry received a lower sentence (though not to the bottom of the amended range), even if this range was lower than the range employed at the original sentencing in 1999.
Here are the essential facts. Derry was convicted in 1998 of multiple offenses, including drug trafficking (crack), racketeering, and murder. When calculating the applicable sentencing range, the Probation Office determined that there were at least three “groups.” The group including the drug trafficking offense – “Group One” — yielded an offense level of 38. After performing the required calculations under the Guidelines’ byzantine grouping rules, U.S.S.G. §§ 3D1.1 – 3D1.5, the final overall offense level became 40. At Category IV, the range was 360 months to life. The court sentenced Derry to 396 months.
In 2011, the Sentencing Commission lowered the base offense level for crack offenses and made that amendment retroactive. In Derry’s case, the offense level for Group One became 32 (rather than 38). After applying the grouping rules, the final overall offense level became 35, which yielded a range of 235 to 293 months in Category IV.
Pursuant to the 2011 amendment, the district court lowered the sentence to 293 months.
In 2015, the Commission again lowered the base offense level for drug offenses, and again made that amendment retroactive. In Derry’s case, the offense level for Group One became 30 (rather than 32 after the 2011 amendment). Due to the operation of the grouping rules, however, this did not affect the final overall offense level, which remained at 35. The applicable range after applying the 2015 amendment was therefore 235 to 293 months, the same as that resulting from the 2011 amendment (but of course lower than the 360 months to life range that applied at the original sentencing).
The district court ruled that Derry was ineligible for a reduction under § 3582(c)(2), and the Circuit affirmed as a matter of statutory interpretation. The critical language states that “in 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 . . . .” Examining this language in its context, the Court ruled that “the relevant inquiry under § 3582(c)(2) is not when the formal process of ‘sentencing’ occurred, but what term of imprisonment the defendant is serving and what guideline range serves as the basis for that sentence.” Opinion at 10. And “[w]hen a district court modifies a term of imprisonment pursuant to § 3582(c)(2),” the Court explained, “it replaces the previous term of imprisonment with a new one based on the amended guideline range . . . .” Id. Thus, “as a matter of fact, the old sentence no longer exists, and the only term of imprisonment to which the defendant has been ‘sentenced’ is ‘based on’ the guideline range applied in the modification proceeding.” Id. And because that range (of 235 to 293 months) was not lowered by the 2015 amendment (because of the grouping rules), Derry was ineligible for a second reduction.