United States of America v. Hector Ornelas

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HECTOR ORNELAS,
Defendant-Appellant.
No. 15-10522
D.C. No.
2:03-cr-00284-JAM-1
OPINION
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted May 13, 2016
San Francisco, California
Filed June 3, 2016
Before: Andrew J. Kleinfeld, Sandra S. Ikuta,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Ikuta

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UNITED STATES V. ORNELAS 2
SUMMARY*
Criminal Law
The panel affirmed the district court’s order denying
the defendant’s motion to reduce his sentence pursuant to
18 U.S.C. § 3582(c)(2) following Sentencing Guidelines
Amendment 782, which retroactively reduced the base
offense levels assigned to specified quantities of specified
controlled substances.
The panel affirmed the district court’s conclusion that
under U.S.S.G. § 1B1.10, the defendant was not eligible for
a sentence reduction because his sentence was less than the
minimum of the amended applicable guideline range. Under
Guidelines Amendment 759, which addressed a circuit split,
a court must not consider any departures or variances in
determining the applicable guideline range for purposes of
§ 1B1.10. The panel held that, specifically, a court must
determine the applicable guideline range before considering
any downward departure to the defendant’s criminal history
under U.S.S.G. § 4A1.3.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. ORNELAS 3
COUNSEL
John Paul Balazs (argued), Law Offices of John P. Balazs,
Sacramento, California, for Defendant-Appellant.
Jason Hitt (argued) and Camil A. Skipper, Assistant United
States Attorneys; Benjamin B. Wagner, United States
Attorney; United States Attorney’s Office, Sacramento,
California, for Plaintiff-Appellee.
OPINION
IKUTA, Circuit Judge:
Hector Ornelas appeals the district court’s order denying
his motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2). He argues that the district court erred in
calculating the guideline range that applied to him at
sentencing because it did not take into account a downward
departure to his criminal history, see U.S.S.G. § 4A1.3. Had
the court included this downward departure, Ornelas argues,
he would have been eligible for a sentence reduction. We
have jurisdiction under 28 U.S.C. § 1291 and review de novo
whether a district court has jurisdiction to resentence a
defendant under § 3582. See United States v. Pleasant,
704 F.3d 808, 810 (9th Cir. 2013). We hold that the district
court was correct to calculate the guideline range that applied
to Ornelas at sentencing without taking into account the
§ 4A1.3 downward departure, and we therefore affirm.

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UNITED STATES V. ORNELAS 4
I
Before addressing the facts of this case, we explain the
framework for analyzing Ornelas’s argument that the district
court erred in declining to reduce his sentence.
“As a general matter, courts may not alter a term of
imprisonment once it has been imposed.” 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). Congress has created an exception to this rule in
18 U.S.C. § 3582(c)(2).1 Under this section, a court may
reduce a defendant’s term of imprisonment if (1) the
defendant was “sentenced to a term of imprisonment based on
a sentencing range that has subsequently been lowered by the
Sentencing Commission” by an amendment to the
Guidelines2 and (2) “such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2).
1 Section 3582(c)(2) provides:
[I]n 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 ..., upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own motion,
the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to
the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by
the Sentencing Commission.
2 The parties do not address the first prong of § 3582(c)(2), which
requires the defendant to have been sentenced “based on” a sentencing
range lowered by an amendment to the Guidelines.

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UNITED STATES V. ORNELAS 5
The “applicable policy statement” relevant here is
§ 1B1.10 of the Sentencing Guidelines. See Pleasant,
704 F.3d at 809–10. Under this section, if “a defendant is
serving a term of imprisonment, and the guideline range
applicable to that defendant has subsequently been lowered
as a result of an amendment” that is listed in § 1B1.10(d),3 the
court has the discretion to “reduce the defendant’s term of
imprisonment” consistent with § 1B1.10. U.S.S.G.
§ 1B1.10(a)(1).
In order to determine the defendant’s eligibility under this
section, the court must determine “the amended guideline
range that would have been applicable to the defendant if the
amendment(s) to the guidelines” listed in § 1B1.10(d) “had
been in effect at the time the defendant was sentenced.” Id.
§ 1B1.10(b)(1).4 In determining this amended guideline
3 U.S.S.G. § 1B1.10(d) provides: “Covered Amendments.—
Amendments covered by this policy statement are listed in Appendix C as
follows: 126, 130, 156, 176, 269, 329, 341, 371, 379, 380, 433, 454, 461,
484, 488, 490, 499, 505, 506, 516, 591, 599, 606, 657, 702, 706 as
amended by 711, 715, 750 (parts A and C only), and 782 (subject to
subsection (e)(1)).”
4 U.S.S.G. § 1B1.10(b)(1) provides:
In General.--In determining whether, and to what
extent, a reduction in the defendant’s term of
imprisonment under 18 U.S.C. 3582(c)(2) and this
policy statement is warranted, the court shall determine
the amended guideline range that would have been
applicable to the defendant if the amendment(s) to the
guidelines listed in subsection (d) [Covered
Amendments] had been in effect at the time the
defendant was sentenced. In making such
determination, the court shall substitute only the
amendments listed in subsection (d) for the

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UNITED STATES V. ORNELAS 6
range, the court substitutes the new amendment “for the
corresponding guideline provisions that were applied when
the defendant was sentenced,” but must “leave all other
guideline application decisions unaffected.” Id. After the
court calculates the amended guideline range, it must
determine whether the defendant’s term of imprisonment is
greater or less than the minimum of this amended guideline
range. Under § 1B1.10(a)(2)(B), “[a] reduction in the
defendant’s term of imprisonment” is not authorized if the
new amendment “does not have the effect of lowering
the defendant’s applicable guideline range.” Id.
§ 1B1.10(a)(2)(B).5 Therefore, if 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.
Before 2011, the Guidelines did not provide guidance on
how a court should determine the applicable guideline range
under § 1B1.10. The Second, Third, and Fourth Circuits
agreed that at a minimum, the applicable guideline range
included a reduction in a defendant’s criminal history
category, as allowed under § 4A1.3 (2009) (“Departures
corresponding guideline provisions that were applied
when the defendant was sentenced and shall leave all
other guideline application decisions unaffected.
5 U.S.S.G. § 1B1.10(a)(2)(B) provides:
Exclusions.—A reduction in the defendant’s term of
imprisonment is not consistent with this policy
statement and therefore is not authorized under
18 U.S.C. § 3582(c)(2) if— . . . (B) [a]n amendment
listed in subsection (d) [Covered Amendments] does
not have the effect of lowering the defendant’s
applicable guideline range.

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UNITED STATES V. ORNELAS 7
Based on Inadequacy of Criminal History Category (Policy
Statement)”), if such a criminal history category
“substantially over-represents the seriousness of the
defendant’s criminal history,” id. § 4A1.3(b)(1). See United
States v. Flemming, 617 F.3d 252, 271–72 (3rd Cir. 2010);
United States v. Munn, 595 F.3d 183, 194–95 (4th Cir. 2010);
United States v. McGee, 553 F.3d 225, 228–30 (2d Cir.
2009). These courts generally reasoned as follows: When a
sentencing court follows the Guidelines’ seven steps for
calculating a defendant’s applicable guideline range,
§ 1B1.1(a)–(g) (2009), the sentencing court must determine
the defendant’s criminal history category at step six,
§ 1B1.1(f).6 According to the Fourth Circuit, a sentencing
court deciding to apply a departure under § 4A1.3 is merely
determining the defendant’s correct criminal history category
at step six, before calculating the guideline range that
corresponds to the “offense level and criminal history
category determined above” at step seven, § 1B1.1(g). See
Munn, 595 F.3d at 192–93. Therefore, in determining
whether a new amendment has lowered the guideline range
applicable to the defendant, Munn explained, the sentencing
court should look at the guideline range as calculated with the
criminal history category that was determined after the
6 U.S.S.G. § 1B1.1(f) (2009) provides: “Determine the defendant’s
criminal history category as specified in Part A of Chapter Four.
Determine from Part B of Chapter Four any other applicable adjustments.”
Part A of Chapter Four sets forth the method for determining criminal
history. It includes § 4A1.3, “Departures Based on Inadequacy of
Criminal History Category (Policy Statement).” Part B of Chapter Four
provides adjustments for Career Offenders and other recidivists.
U.S.S.G. § 1B1.1(g) (2009) provides “Determine the guideline range
in Part A of Chapter Five that corresponds to the offense level and
criminal history category determined above.”

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UNITED STATES V. ORNELAS 8
§ 4A1.3 departure. Id.; see also Flemming, 617 F.3d at
268–69 (noting a similar rationale for determining the
guideline range applicable to a defendant for purposes of
§ 1B1.10(a)). The Third Circuit explained that to the extent
the guidelines are ambiguous regarding how to determine the
guideline range applicable to a defendant, a court must “apply
the rule of lenity and resolve the conflict in the defendant’s
favor.” Flemming, 617 F.3d at 269–72 & n.26 (quoting
Munn, 595 F.3d at 194); see also McGee, 553 F.3d at 229
(applying the rule of lenity in holding the same).
On the other side of this split, the Sixth, Eighth, and Tenth
Circuits held that the guideline range applicable to a
defendant is the range that the district court calculated before
granting any departures, including the downward departure
allowed by § 4A1.3. These circuits noted that “departure” is
defined “for purposes of § 4A1.3” as the “assignment of a
criminal history category other than the otherwise applicable
criminal history category, in order to effect a sentence outside
the applicable guideline range.” U.S.S.G. § 1B1.1 cmt.
n.1(E). Because a departure by definition takes the sentence
“outside the applicable guideline range,” a court must
determine the applicable guideline range before any
departures were granted. See, e.g., United States v.
Pembrook, 609 F.3d 381, 385–86 (6th Cir. 2010); United
States v. Darton, 595 F.3d 1191, 1196–97 (10th Cir. 2010);
United States v. Blackmon, 584 F.3d 1115, 1116 (8th Cir.
2009) (per curiam).
In 2011, the Commission issued Amendment 759, which
amended § 1B1.10 Application Note 1 to address this circuit
split. As the Commission explained in its statement of
reasons, the “First, Second, and Fourth Circuits have held
that, for § 1B1.10 purposes, at least some departures (e.g.,

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UNITED STATES V. ORNELAS 9
departures under § 4A1.3 (Departures Based on Inadequacy
of Criminal History Category) (Policy Statement)) are
considered before determining the applicable guideline range,
while the Sixth, Eighth, and Tenth Circuits have held that the
only applicable guideline range is the one established before
any departures.” U.S.S.G. supp. app’x C, amend. 759
(Reason for Amendment) (internal quotation marks omitted).
The Commission stated that its amendment “adopts the
approach of the Sixth, Eighth, and Tenth Circuits and amends
Application Note 1 to clarify that the applicable guideline
range referred to in § 1B1.10 is the guideline range
determined pursuant to § 1B1.1(a), which is determined
before consideration of any departure provision in the
Guidelines Manual or any variance.” Id. The Commission
noted that this approach was also consistent with its 2010
amendment to § 1B1.1 (the instructions for determining the
appropriate guidelines range), which had clarified that a court
first determines the guideline range and then considers “the
policy statements and commentary to determine whether a
departure is warranted.” Id. § 1B1.1(b); see also U.S.S.G.
supp. app’x C, amend. 759 (Reason for Amendment) (“As
amended, subsection (a) addresses how to apply the
provisions in the Guidelines Manual to properly determine
the kinds of sentence and the guideline range. Subsection (b)
addresses the need to consider the policy statements and
commentary to determine whether a departure is warranted.”
(quoting U.S.S.G. supp. app’x C, amend. 741 (Reason for
Amendment))).
As amended, Application Note 1 to § 1B1.10 now states:
“Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is
triggered only by an amendment listed in subsection (d) that
lowers the applicable guideline range (i.e., the guideline
range that corresponds to the offense level and criminal

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UNITED STATES V. ORNELAS 10
history category determined pursuant to § 1B1.1(a), which is
determined before consideration of any departure provision
in the Guidelines Manual or any variance).” U.S.S.G.
§ 1B1.10 cmt. n.1(A) (effective Nov. 1, 2011) (emphasis
added).
As a result of the Sentencing Commission’s Amendment
759, all circuits that have addressed the issue after 2011,
including those on the wrong side of the circuit split, have
recognized that a court must not consider any departures or
variances (including departures under § 4A1.3) in
determining the applicable guideline range for purposes of
§ 1B1.10. See United States v. Hogan, 722 F.3d 55, 59–61
(1st Cir. 2013); United States v. Montanez, 717 F.3d 287,
292–94 (2d Cir. 2013); United States v. Flemming, 723 F.3d
407, 411–13 (3rd Cir. 2013); United States v. Boyd, 721 F.3d
1259, 1262–64 (10th Cir. 2013); United States v. Hargrove,
732 F.3d 1253, 1254 n.1 (11th Cir. 2013). In Montanez, for
instance, the Second Circuit rejected the defendants’
argument that § 1B1.1 required a sentencing court to apply a
departure under § 4A1.3 as part of the calculation of criminal
history before determining the defendant’s applicable
guideline range, because “the Commission has foreclosed the
exact approach” that the defendants were advocating.
717 F.3d at 294. Similarly, the Third Circuit acknowledged
that its prior reading of the Guidelines was superseded by the
new definition of “applicable guidelines range” and that the
language of the amendment “makes clear that regardless of
when a § 4A1.3 departure is calculated, that departure is
ignored for purposes of determining the ‘applicable guideline
range.’” Flemming, 723 F.3d at 412. Therefore, the court
held that the “applicable guideline range” is “the range
calculated pursuant to the career offender designation of

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UNITED STATES V. ORNELAS 11
§ 4B1.1, and not the range calculated after applying any
departure or variance.” Id.
We have likewise concluded that the “applicable
guideline” range for purposes of a sentencing reduction under
§ 3582(c)(2) “is derived pre-departure and pre-variance.”
Pleasant, 704 F.3d at 812. Pleasant held that a defendant
who qualified as a career offender (a defendant who has a
criminal history category of Category VI), but who was
sentenced under a crack-cocaine guideline range—which was
later amended—pursuant to a plea agreement, nevertheless
was ineligible for a sentencing reduction because his
“applicable guideline range” for purposes of § 1B1.10 was
the career offender guideline range. Id. at 811–12. In so
holding, we relied on the plain language of the Commission’s
amended Application Note 1(A), which states the applicable
range is “determined before consideration of any departure
provision,” and that the Commission added the relevant
language to resolve the circuit split in favor of courts that
held the same. Id. at 812. Although Pleasant did not address
the situation where a court had granted a defendant a
departure from the defendant’s criminal history category
under § 4A1.3, its reasoning is applicable in this context as
well.
II
We now turn to the facts of this case. Hector Ornelas was
arrested after he was spotted leaving 766 grams of
methamphetamine in a red and white cooler at a house in
Sacramento, California. In March 2004, he pleaded guilty to:
(1) possession with intent to distribute at least 500 grams of
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and

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UNITED STATES V. ORNELAS 12
(2) being a deported alien found in the United States in
violation of 8 U.S.C. § 1326(a).
The presentence investigation report (PSR) made the
following calculations. First, it determined the base offense
level for a violation of § 841(a)(1). Under the drug quantity
table set forth at § 2D1.1(c)(2), offenses involving at least
500 grams but less than 1.5 kilograms of methamphetamine
were assigned a base offense level of 36.7 This base offense
level was reduced three points for an adjustment for
acceptance of responsibility, see § 3E1.1, leading to a total
offense level of 33. The PSR calculated Ornelas’s criminal
history score of 14, establishing a criminal history category
of VI. A total offense level of 33 and a criminal history
category of VI corresponded to a resulting guideline range of
235 to 293 months. The PSR also noted that the plea
agreement stated the criminal history category VI was
overstated and recommended a category IV, which
corresponded to a guideline sentencing range of 188 to 235
months.
On June 29, 2004, the district court held a sentencing
hearing and determined that the total offense level was 33,
that a criminal history category of VI was appropriate, but
that a downward departure was also appropriate because the
7 Under § 3D1.4 (providing directions for determining the combined
offense level when there are multiple counts) the § 1326(d) conviction did
not add to the base offense level.

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UNITED STATES V. ORNELAS 13
record overstated Ornelas’s criminal history. The court then
imposed a term of 178 months.8
In November 2014, the Sentencing Commission
promulgated Amendment 782, which generally amended the
drug quantity table in § 2D1.1(c) to reduce the base offense
levels assigned to specified quantities of specified controlled
substances by two levels. See U.S.S.G. supp. app’x C,
amend. 782. This amendment is listed in § 1B1.10(d) as a
“covered amendment,” and the Sentencing Commission
authorized district courts to apply Amendment 782
retroactively. See U.S.S.G. supp. app’x C, amend. 788.
Because Amendment 782 would have applied to his
sentence, Ornelas filed a motion to reduce his sentence
pursuant to 18 U.S.C. § 3582(c)(2). After hearing argument,
the district court denied the motion. It stated that at the 2004
sentencing hearing, the sentencing court found that Ornelas
had a total offense level of 33 and a criminal history of VI,
resulting in a guideline range of 235 to 293 months, but the
sentencing court then imposed a 178-month sentence. Under
Amendment 782, Ornelas would have a total offense level of
31. Substituting this offense level for the original offense
level of 33, and leaving “all other guidelines application
decisions unaffected,” U.S.S.G. § 1B1.10(b)(1), the court
calculated that a total offense level of 31 and a criminal
history of VI resulted in a guideline range of 188 to 235
months. Because Ornelas’s sentence of 178 months was less
than the minimum of the amended applicable guideline range
8 Although the record is not entirely clear, the parties do not dispute that
the court granted this departure pursuant to § 4A1.3. The district court did
not identify the criminal history category it deemed to be applicable to
Ornelas under this departure.

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UNITED STATES V. ORNELAS 14
(188 months), as determined pre-departure and pre-variance,
the court determined that Ornelas was not eligible for a
reduction. Ornelas timely appealed.
III
On appeal, Ornelas argues that the district court erred by
not including a § 4A1.3 downward departure in calculating
the applicable guideline range for purposes of § 3582(c)(2)
and § 1B1.10. Specifically, Ornelas contends that in
sentencing him to a 178-month term of imprisonment, the
sentencing court used a criminal history category of III (after
departing from the criminal history category of VI pursuant
to § 4A1.3), and a total offense level of 33, resulting in a
guideline range of 168 to 210 months of imprisonment.
Amendment 782 lowers his total offense level to 31, and with
a criminal history category of III, this would result in a range
of 135 to 168 months. Since the minimum of the amended
guideline range applicable to Ornelas (135 months) is less
than his actual term of imprisonment (178 months), according
to Ornelas, the district court should have found he is eligible
for a reduction.
In making this argument, Ornelas relies on the pre-2011
decisions in the First, Second, Third, and Fourth Circuits,
which had held that a § 4A1.3 departure is incorporated into
the applicable guideline range for purposes of § 1B1.10
because it is part of the “guideline range that corresponds to
the offense level and criminal history category determined
pursuant to § 1B1.1(a),” as defined by Application Note 1(A).
See U.S.S.G. § 1B1.10 cmt. n.1(A). He also argues, again
echoing those pre-2011 decisions, that § 1B1.10 is
ambiguous, so the Guidelines should be interpreted in his
favor in light of the rule of lenity. Ornelas acknowledges that

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UNITED STATES V. ORNELAS 15
after Amendment 759 was issued in 2011, every circuit that
has ruled on this issue has rejected these arguments. He also
acknowledges that we have held the applicable guideline
range must be determined before applying departures or
variances. See Pleasant, 704 F.3d at 812. Nevertheless, as he
notes, we have not directly ruled that a court must determine
the applicable guideline range before considering any
downward departure under § 4A1.3.
We now do so. We defer to the Application Notes, see
Stinson v. United States, 508 U.S. 36, 38 (1993), and look to
the Commission’s statements of reason for guidance, see
Boyd, 721 F.3d at 1263–64; see also Pleasant, 704 F.3d at
812 (relying on the Sentencing Commission’s statement of
reasons for Amendment 759); Hogan, 722 F.3d at 61 (same);
Montanez, 717 F.3d at 294 (same); Flemming, 723 F.3d at
413 (same). A defendant is eligible for a sentence reduction
under § 3582(c)(2) only if a new amendment lowers the
“applicable guideline range,” which must be determined
“before consideration of any departure provision in the
Guidelines Manual.” U.S.S.G. § 1B1.10 cmt. n.1(A).
Section 4A1.3 is identified as a departure provision, see
§ 4A1.3 (“Departures Based on Inadequacy of Criminal
History Category (Policy Statement)).” For purposes of
§ 4A1.3, the term “departure” has the meaning given that
term in 1B1.1, see U.S.S.G. § 4A1.3 cmt. n.1, and § 1B1.1
defines departure “for purposes of §4A1.3” as the
“assignment of a criminal history category other than the
otherwise applicable criminal history category, in order to
effect a sentence outside the applicable guideline range.”
U.S.S.G. § 1B1.1 cmt. n.1(E). Because § 4A1.3 is a
“departure” that effects a sentence “outside the applicable
guideline range,” the applicable guideline range for purposes
of § 1B1.10 must be determined before considering § 4A1.3.

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UNITED STATES V. ORNELAS 16
Further, the Commission’s November 2010 amendment to
§ 1B1.10 makes clear that this interpretation is consistent
with § 1B1.1. See U.S.S.G. supp. app’x C, amend. 741
(Reason for Amendment). Section 4A1.3 is identified as a
policy statement, and under the current version of § 1B1.1, a
court must first determine the applicable guideline range, id.
§ 1B1.1(a), and only then consider any “policy statements”
that might warrant consideration, id. § 1B1.1(b).
Accordingly, we conclude that for purposes of determining a
defendant’s eligibility for a sentence reduction under
§ 3582(c) and § 1B1.10, a court must calculate the guideline
range applicable to the defendant before considering any
departure, including a departure under § 4A1.3. Our
conclusion is supported by the Commission’s statement that
it amended Application Note 1(A) of § 1B1.10 to resolve a
circuit split on this very issue, by the fact that every other
circuit that has addressed this issue after Amendment 759 is
in agreement, and by our binding precedent, see Pleasant,
704 F.3d at 812.
Because the district court here correctly determined
Ornelas’s applicable guideline range by using the criminal
history category applicable to Ornelas before consideration of
a downward departure under § 4A1.3, it did not err in
concluding that Ornelas was not eligible for a sentence
reduction under § 3582(c).9
AFFIRMED.
9 Ornelas argues that, in the alternative, application of § 1B1.10(b)(1)
violates the Ex Post Facto Clause of the United States Constitution. We
have already rejected that argument. United States v. Waters, 771 F.3d
679, 680–81 (9th Cir. 2014).

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