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United States v. Phelps

United States Court of Appeals, Seventh Circuit

May 24, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOSEPH A. PHELPS, Defendant-Appellant

         Submitted October 2, 2015.

          Appeal from the United States District Court for the Central District of Illinois. No. 12-CR-10095-001 -- Joe Billy McDade, Judge.

         For UNITED STATES OF AMERICA, Plaintiff - Appellee: Greggory R. Walters, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Peoria, IL.

         For JOSEPH A. PHELPS, Defendant - Appellant: Peter W. Henderson, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Urbana, IL.

         Before POSNER, SYKES, and HAMILTON, Circuit Judges.

          OPINION

         Sykes, Circuit Judge.

         Joseph Phelps was convicted of conspiracy to manufacture methamphetamine and was sentenced to 120 months in prison, the statutory minimum, well below the Sentencing Guidelines range of 188-235 months. A year later the government moved for a sentence reduction as a reward for his substantial assistance. See Fed. R. Crim. P. 35(b). The district court granted the motion and reduced the sentence to 60 months.

         Several months later Amendment 782 to the Sentencing Guidelines took effect, retroactively reducing Phelps's guideline range to 151-188 months. As permitted by 18 U.S.C. § 3582(c)(2), Phelps moved for a sentence reduction based on the retroactive amendment. He asked the court to reduce his sentence to 48 months, citing the policy statement in U.S.S.G. § 1B1.10(b)(2)(B), which contains the Sentencing Commission's guidance for handling a § 3582(c)(2) motion in a case involving a defendant who is serving a below-guideline sentence based on substantial assistance to the government. In that situation the Commission advises that " a reduction comparably less than the amended guideline range ... may be appropriate." U.S.S.G. § 1B1.10(b)(2)(B) (emphasis added).

         The judge calculated that a " reduction comparably less than" the amended range in Phelps's case would be 75 months, not 48 months as Phelps had argued. The judge arrived at this higher figure by comparing Phelps's 60-month sentence to the below-guideline sentence of 120 months that the court had originally imposed before the government's substantial-assistance motion. The 60-month term was 50% of the original sentence, so the judge applied the same percentage to the amended range, the bottom of which was 151 months. That approach yielded a term of not less than 75 months. Because this term was greater than Phelps's 60-month sentence, the judge found him ineligible for a § 3582(c)(2) reduction and denied the motion.

         We reverse. To calculate a sentence that is " comparably less than the amended guideline range," the Sentencing Commission instructs the court to compare the defendant's current below-guideline sentence to the original unamended guideline range, convert the difference to a percentage, and apply that percentage reduction to the amended range. See § 1B1.10(b)(2)(B) cmt. n.3. This approach applies for all defendants serving a below-guideline sentence based on substantial assistance, even where (as here) the government's substantial-assistance motion came after the court imposed a below-range sentence for some other reason (e.g., based on the factors listed in 18 U.S.C. § 3553(a)).

         The judge's misstep in this case was to compare Phelps's current 60-month sentence to his initial below-guideline 120-month sentence rather than to the original unamended guideline range. Phelps performed the correct calculation: His " comparably less" sentence is not less than 48 months, so he is eligible for a sentence reduction under § 3582(c)(2).

         I. Background

         Phelps pleaded guilty in January 2013 to a charge of conspiring to manufacture more than 500 grams of methamphetamine. See 21 U.S.C. § § 841(b)(1)(A)(viii), 846. Under the then-applicable 2012 Sentencing Guidelines, the presentence report began with a base offense level of 32, added three levels for environmental harm, and three more levels for Phelps's role as a manager or supervisor, and finally subtracted three levels for acceptance of responsibility. U.S.S.G. § § 2D1.1(c)(4) (base offense), 2D1.1(b)(13)(C)(ii) (environmental harm), 3B1.1(b) (manager and supervisor), 3E1.1(a) (acceptance of responsibility). This yielded an adjusted offense level of 35, which together with a criminal-history category of II, produced a guideline range of 188-235 months.

         At sentencing in May of that year the judge adopted these findings but imposed the statutory minimum sentence of 120 months, see § 841(b)(1)(A), well below the bottom of the guideline range. This substantial downward variance was based on the judge's consideration of the sentencing factors in § 3553(a). In July 2014 the prosecutor moved to reduce Phelps's sentence based on his substantial ...


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