The Tenth Circuit Court of Appeals issued its opinion in United States v. Gilmore on Tuesday, November 15, 2016.
Jeremy Gilmore was convicted of conspiracy to distribute and possession with intent to distribute methamphetamine in 2009. Due to his two prior drug felonies, Gilmore received a mandatory life sentence. After the Tenth Circuit affirmed his conviction, Gilmore filed a motion to vacate under 28 U.S.C. § 2255, claiming his trial counsel was ineffective. The district court granted his motion, but instead of setting aside the conviction it ordered the parties to meet and confer regarding an appropriate remedy. The two parties informed the court at a later status conference that a 168 month sentence would be fair, based on the reduction in offense level Gilmore could have received if his counsel were effective. The parties reduced their agreement to writing, wherein Gilmore agreed to knowingly admit committing one count of conspiracy, for which he had already been sentenced, in exchange for the government’s agreement not to file additional charges against Gilmore. The agreement did not specifically reference any Guidelines range. The court accepted the agreement, agreed to be bound by it, and resentenced Gilmore to 168 months’ imprisonment.
Almost two years later, Gilmore filed a motion to reduce his sentence pursuant to Amendment 782, which reduced the Guidelines ranges for various offenses. Gilmore argued that his sentence mirrored the low end of a Guidelines range based on a total offense level of 32 and a criminal history level of IV, and was thus “based on” a Guidelines range. The district court dismissed Gilmore’s motion, finding it lacked jurisdiction to reduce his sentence since it was based on the agreement of the parties and not a particular Guidelines range. Gilmore appealed.
The Tenth Circuit addressed Gilmore’s argument that the district court erred in concluding it lacked authority to modify his sentence. The Tenth Circuit found Justice Sotomayor’s concurrence in Freeman v. United States, 564 U.S. 522 (2011), compelling. Justice Sotomayor suggested that when a plea agreement is “based on” a Guidelines range that is subsequently amended, the defendant is entitled to use the amendment, but when the plea does not “use” or “employ” a particular Guidelines range, the amendment is inapplicable. The Tenth Circuit agreed with this reasoning, and found that because the sentencing agreement was not “based on” a specified Guidelines range, the amendment was inapplicable to Gilmore.
The district court was affirmed.