Wednesday, June 28, 2017

A Rare 18 U.S.C. § 3582(c)(2) Defense Victory

U.S. v. Mowery, 2017 WL 2297390 (5/25/17) (N.M.) (unpub'd) - Mr. Mowery pleaded guilty to a meth offense. He committed that offense while on supervised release for a prior drug conviction. His guideline range ended up being 168 to 210 months after he received a three-level enhancement under USSG § 3C1.3 and 18 U.S.C. § 3147(1) for committing the offense while on release. The district court imposed a 168-month prison term. Under 18 U.S.C. § 3147(1), the district court had to impose a sentence consecutive to the underlying offense. So the judge gave Mr. Mowery 121 months for the meth offense and 47 months under § 3147(1) for a total of 168 months. Despite government support for Mr. Mowery's subsequent § 3582(c)(2) motion based on Amendment 782, the district court denied the motion on the ground that the new guideline range of 135 to 168 months was higher than Mr. Mowery's 121 month sentence for his meth offense. So § 1B1.10 prevented any sentence reduction. With the government conceding error on appeal, the 10th rules that the 168-month sentence was really the total sentence for the meth offense, even though portions of it had to be credited to § 3147(1).. The § 3147(1) violation was not a separate offense. It just required a sentence enhancement for the meth offense. Since Mr. Mowery's drug sentence was really 168 months, he was eligible for a sentence reduction to 135 months.