United States of America v. Desean Nathaniel Gardner

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
DESEAN NATHANIEL GARDNER,
Defendant-Appellee.
No. 16-10542
D.C. No. 4:09-cr-00203-CW-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted March 15, 2018
San Francisco, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and RAKOFF,** Senior
District Judge.
The Government appeals the district court’s order granting the pro se motion
of defendant Desean Nathaniel Gardner for a sentence reduction pursuant to 18
U.S.C. § 3582(c)(2) and U.S. Sentencing Guidelines Manual (“USSG”)
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jed S. Rakoff, Senior United States District Judge for the
Southern District of New York, sitting by designation.
FILED
APR 6 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
Amendment 782, which reduced the offense levels assigned to drug quantities in
USSG § 2D1.1 (U.S. Sentencing Comm’n 2016). We reverse.
Although courts generally “may not alter a term of imprisonment once it has
been imposed,” United States v. Ornelas, 825 F.3d 548, 549 (9th Cir. 2016)
(quoting United States v. Hicks, 472 F.3d 1167, 1169 (9th Cir. 2007), abrogated on
other grounds by Dillon v. United States, 560 U.S. 817 (2010)), 18 U.S.C.
§ 3582(c)(2) allows modification when: (1) the sentence is “based on a sentencing
range that has subsequently been lowered by the Sentencing Commission” and (2)
“such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” The primary policy statement relevant here provides that
a court may reduce a defendant’s sentence if “the guideline range applicable to that
defendant has subsequently been lowered as a result of an amendment to the
Guidelines.” USSG § 1B1.10(a)(1) (emphasis added). It further provides that “the
court shall not reduce the defendant’s term of imprisonment . . . to a term that is
less than the minimum of the amended guideline range.” USSG § 1B1.10(2)(A).
Here, the district court’s re-sentencing order was erroneous as a matter of
law, and therefore an abuse of discretion, because it reduced Gardner’s term of
imprisonment to a term less than the minimum of the amended guideline range.
Gardner argues that his applicable guideline range is the non-career offender
powder cocaine guideline. We disagree. The “applicable” guideline range is “the

-- 2 of 5 --

3
guideline range that corresponds to the offense level and criminal history category
determined pursuant to [§] 1B1.1(a), which is determined before consideration of
any departure provision in the Guidelines Manual or any variance.” USSG §
1B1.10 cmt. n.1(A). The district court’s rejection of the crack/powder disparity on
policy grounds, and its rejection of the career offender guidelines’ implications to
Gardner’s case, constituted variances from Gardner’s “applicable” range. See
Kimbrough v. United States, 552 U.S. 85, 111 (2007) (holding that district court’s
“downward variance” from the guideline range based on a policy disagreement
with the crack/powder disparity was not an abuse of discretion); see also United
States v. Henderson, 649 F.3d 955, 963 (9th Cir. 2011) (“[S]imilar to the crack
cocaine Guidelines, district courts may vary from the child pornography
Guidelines, § 2G2.2, based on policy disagreement with them.” (emphasis added)).
Therefore, Gardner’s applicable guideline range was the one determined
using an offense level of 37, based on the drug quantity guidelines,1 and a criminal
history category of VI, based on Gardner’s stipulation that he is a career offender.
As the parties agreed at sentencing, this offense level and criminal history category
correspond to a guideline range of 360 months to life. Amendment 782 lowers
1 Gardner stipulated in the plea agreement that his base offense level was 36
because his offense involved at least 2.8 but less than 8.4 kilograms or more of
crack cocaine. He further stipulated that his adjusted offense level was 37,
accounting for his role as an organizer/leader under USSG § 3B1.1(a) and his
acceptance of responsibility under USSG § 3E1.1.

-- 3 of 5 --

4
Gardner’s total offense level to 35, see USSG § 2D1.1(c)(3), resulting in a
guideline range of 292 to 365 months. The district court originally imposed a
sentence of 235 months. Since this sentence was below the minimum of the
amended guideline range, Gardner is ineligible for a sentence reduction. See USSG
§ 1B1.10(a)(2)(B); Ornelas, 825 F.3d at 550 (“[I]f the defendant’s term of
imprisonment is less than the minimum of the amended guideline range, then the
defendant is ineligible for a sentence reduction.”).
We would reach the same result even assuming, as the parties’ briefing does,
that the relevant drug quantity offense level was the powder cocaine offense level
rather than the crack offense level. Gardner stipulated to being a career offender.
The guideline range corresponding to his career offender status would then be the
“applicable” range because his offense level was higher when calculated using the
career offender guidelines than when calculated under the drug quantity tables for
powder cocaine. See USSG § 4B1.1.2 Since the career offender guidelines have not
subsequently been lowered, Gardner is ineligible for a sentence reduction. See
2 Gardner contends that the Government has waived the argument that
Gardner is ineligible for a sentence reduction under the “applicable to” prong
because the Government did not make this exact argument until its reply brief.
However, “it is claims that are deemed waived or forfeited, not arguments.” United
States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). The Government
argued below and in its opening brief here that Gardner is ineligible for a reduced
sentence. And to avoid any prejudice to Gardner, we allowed him to submit a
supplemental brief on the “applicable to” issue.

-- 4 of 5 --

5
United States v. Pleasant, 704 F.3d 808, 811-12 (9th Cir. 2013), overruled on other
grounds by United States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc).
REVERSED.

-- 5 of 5 --