IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10701

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

JASON DEJUAN LEATCH, also known as Criptonite, 

Defendant-Appellant 

Appeal from the United States District Court 

for the Northern District of Texas 

Before REAVLEY, HAYNES, and COSTA, Circuit Judges. 

GREGG COSTA, Circuit Judge:

From time to time, the Sentencing Commission decides to lower the 

guideline range applicable to an offense and gives retroactive effect to that 

reduction for those sentenced before the change. Amendment 782 to the 

Guidelines was one such change. It lowered by two the offense level for most 

drug crimes.1 As a result of this change, Jason Dejuan Leatch, had his 262-

month sentence for trafficking in crack cocaine reduced to 235 months. His 

appeal contends that he should have received a greater reduction to account 

 

1 As its reasons for the change, the Commission cited its “determination that 

setting the base offense levels above mandatory minimum penalties is no longer 

necessary and that a reduction would be an appropriate step toward alleviating the

overcapacity of federal prisons.” U.S.S.G. app. C, amend. 782 (Nov. 1, 2014).

United States Court of Appeals

Fif h Circuit

FILED

June 6, 2017

Lyle W. Cayce

Clerk

 Case: 16-10701 Document: 00514021879 Page: 1 Date Filed: 06/06/2017
No. 16-10701

2 

for the downward departure based on overrepresented criminal history that

the district court awarded him at his original sentencing. We decide whether 

a district court considering a motion to reduce a sentence based on a retroactive 

change to the Guidelines must disregard any downward departures previously 

granted (other than one based on substantial assistance to the government)

and, if so, whether this poses any constitutional or other problems. 

Leatch was convicted of three counts of distributing cocaine base and one 

count of conspiring to traffic in more than 50 grams of that substance. At 

sentencing, the district court found that Leatch’s criminal history category of 

V was overrepresented pursuant to U.S.S.G. § 4A1.3(b) and departed 

downward to a category of IV. The court then imposed a sentence at the low 

end of the guideline range that resulted from that reduced criminal history 

category: 262 months for the conspiracy offense.2

After Amendment 782 was announced, Leatch sought a reduction to his 

sentence. The district court determined that Amendment 782 reduced the 

applicable sentencing range to 235-293 months and imposed a new sentence of 

235 months. Leatch asserted that the district court should also reapply the 

criminal history category departure in determining the new range. With that 

departure included, the new range would be 210-262 months. The district 

court reluctantly concluded, however, that U.S.S.G. § 1B1.10 forbade the 

consideration of any departures in determining the applicable guideline range 

for a sentencing reduction. 

 A defendant is eligible for a sentence reduction if the guidelines range 

originally applicable was subsequently lowered as a result of an amendment 

to the Sentencing Guidelines that was given retroactive effect by being listed 

 

2 The sentence was 240 months for the substantive offenses as that was the 

statutory maximum for those crimes. 

 Case: 16-10701 Document: 00514021879 Page: 2 Date Filed: 06/06/2017
No. 16-10701

3 

in section 1B1.10(d). U.S.S.G. § 1B1.10(a)(1). A district court considering a 

reduction under section 3582(c)(2) must “determine the amended guideline 

range that would have been applicable to the defendant if the amendment(s) 

to the guidelines . . . had been in effect at the time the defendant was 

sentenced.” Id. § 1B1.10(b)(1). With only one exception, the amended range 

sets the lower limit of the court’s reduction authority: ““Except as provided in 

subdivision (B) 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.” Id. § 1B1.10(b)(2)(A). The exception is for a case in which 

the defendant received a downward departure at the original sentence hearing 

for providing substantial assistance to the government. Id. § 1B1.10(b)(2)(B) 

(explaining that a defendant at a sentencing reduction hearing may receive a 

reduction from the new guideline range for cooperation under section 5K1.1

comparable to the one originally granted). There is no exception listed for any 

other downward departures such as the one Leatch received because the court 

believed his criminal history was overrepresented. 

 Leatch nonetheless maintains that a section 4A1.3(b) criminal history 

departure may be reapplied as part of a sentence reduction because he views 

it is part of the original guideline calculation that just gets adjusted to take 

account of the amendment. In other words, he is not seeking a departure from 

the new range; he believes that the downward departure for overrepresented 

criminal history should be used in calculating that new range. He argues that 

the Guidelines clearly provide that a departure for unrepresentative criminal 

history is part of the Guideline itself, citing the basic Guidelines instructions 

found in section 1B1.1(a)(6). Among other things, that section provides that a 

court shall “[d]etermine the defendant’s criminal history category as specified 

in Part A of Chapter 4.” Id. § 1B1.1(a)(6). Because the departure he received 

 Case: 16-10701 Document: 00514021879 Page: 3 Date Filed: 06/06/2017
No. 16-10701

4 

is found in that part of the Guidelines, he contends it is part of the original 

range that is simply adjusted at a sentencing reduction hearing to account for 

the retroactive amendment. 

Even if his view has some merit to it, the Guidelines language does not 

unambiguously support it. Chapter 4 first lists the points assigned to prior 

convictions that a court uses to “determine the criminal history category.” Id. 

§ 4A1.1 (emphasis added). Only after that calculation is performed does 

Section 4A1.3 come into play, which discusses the procedure for “[d]epartures 

based on inadequate criminal history category.” A “departure” is a divergence 

from the norm. By definition then, the departure Leatch received at his first 

sentencing was something outside the originally calculated range. United 

States v. Mejia-Huerta, 480 F.3d 713, 721 (5th Cir. 2007) (“When a sentencing 

court found such an exception and exercised its limited discretion to sentence 

outside the applicable Guidelines range, the court was said to be engaging in 

a ‘departure’ from the Guidelines.”); United States v. Zuniga-Peralta, 442 F.3d 

345, 347 (5th Cir. 2006) (noting that a Presentence Report discussed the 

possibility that the “Court could depart from the guideline range under 

U.S.S.G. § 4A1.3” (emphasis added)). Indeed, the Rule of Criminal Procedure

recognize that a departure like the one Leatch received is apart from, rather 

than part of, the “applicable sentencing range.” FED. R. CRIM. P. 32(d). The 

rule provides that a presentence report must, among other things: 1) “calculate 

the defendant’s offense level and criminal history category; 2) “calculate the 

resulting sentencing range;” and 3) only then, “identify any basis for departing 

from the applicable sentencing range.” Id. Other features of sentencing 

demonstrate that the calculation of the “applicable” range is a separate step 

from determining whether a departure should apply. Notice must be given 

before “the court may depart from the applicable sentencing range.” FED. R.

 Case: 16-10701 Document: 00514021879 Page: 4 Date Filed: 06/06/2017
No. 16-10701

5 

CRIM. P. 32(h). And the difference between the applicable sentencing range and 

the sentenced that resulted a departure is used by a reviewing court to assess 

the reasonableness of the departure. Zuniga-Peralta, 442 F.3d at 348 

(assessing whether the district court abused its discretion in giving an 

“ultimate sentence of sixty months” that was “nearly double the initial 

sentencing range”). To be sure, there is a way to look at this process that 

supports Leatch’s characterization. Unlike a Booker variance which is 

considered “outside the Guidelines,” a sentence that includes a Guidelinessanctioned departure is often still deemed a “Guidelines sentence that included 

an upward or downward departure.” Mejia-Huerta, 480 F.3d at 721 (emphasis 

added). But for the reasons we have explained, the Guidelines can also be read 

to treat a departure as just that—something outside the guideline range. 

With that uncertainty, we are able to consider whether the Commission’s 

commentary to the Guidelines provides a clear answer to our question. It does. 

Recall that the key term the Guidelines use as the starting point for a reduction 

is the “applicable” guideline range.3 U.S.S.G. 1B1.10(b)(1); United States v. 

Montanez, 717 F.3d 287, 292 (2d Cir. 2013) (noting that this section’s “use of 

the word ‘applicable’ has technical significance”). Commentary defines 

“applicable guideline range” as “the guideline range that corresponds to the 

offense level and criminal history category determined pursuant to 

section 1B1.1(a), which is determined before consideration of any departure 

provision in the Guidelines Manual or any variance.” § 1B1.10, comment. 

n.1(A) (2014) (emphasis added). Another application note drives home the 

point with the following example: 

If the term of imprisonment imposed [at a defendant's original 

sentencing] was outside the guideline range applicable to the defendant 

 

3 Notably, “applicable sentencing range” is also the language Rule 32 repeatedly uses 

for the determination that comes before any departure is considered. FED. R. CRIM. P. 32(d), 

(h).

 Case: 16-10701 Document: 00514021879 Page: 5 Date Filed: 06/06/2017
No. 16-10701

6 

at the time of sentencing, the limitation in subsection (b)(2)(A) ... 

applies. Thus, if the term of imprisonment imposed [based on an 

applicable guideline range of 70 to 87 months] ... was a sentence of 56 

months (constituting a downward departure or variance), the court ... 

may [, after a guideline amendment lowers the applicable range to 51 to 

63 months,] reduce the defendant's term of imprisonment, but shall not 

reduce it to a term less than 51 months.

U.S.S.G. § 1B1.10 cmt. n.3. 

 Other sections of the commentary also directly counter Leatch’s view 

that a departure for overrepresented criminal history is part of the guideline 

range itself. The starting point for this analysis is commentary to section 

4A1.3, which states that “departure” is defined pursuant to the commentary in 

section 1B1.1. See id. § 4A1.3 cmt. n.1. That commentary defines a section 

4A1.3 “departure” as “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.” § 1B1.1 cmt. n.1(E) (emphasis added). 

The commentary thus “lead[s] to the ineluctable conclusion that a court does 

not depart under § 4A1.3 when calculating a defendant’s applicable guideline 

range, but instead departs from the applicable guideline range under § 4A.1.3 

after having calculated that range.” United States v. Montanez, 717 F.3d 287, 

292 (2d Cir. 2013). And that means the post-departure range cannot be used 

as the starting point when calculating the amended range for a sentencing 

reduction. Montanez, 717 F.3d at 291–94. 

 This is the unanimous view of the circuits that have decided the 

question since the Commission in 2011 added the commentary providing that 

the “applicable guideline range” is “the guideline range that corresponds to the 

offense level and criminal history category determined pursuant to 

section 1B1.1(a), which is determined before consideration of any departure 

provision in the Guidelines Manual or any variance.” U.S.S.G. app. C, amend 

759 (2011). See Montanez, 717 F.3d at 294; United States v. Hogan, 722 F.3d 

 Case: 16-10701 Document: 00514021879 Page: 6 Date Filed: 06/06/2017
No. 16-10701

7 

55, 63 (1st Cir. 2013); United States v. Ornelas, 825 F.3d 548 (9th Cir. 2016);

United States v. Muldrow, 844 F.3d 434, 437 (4th Cir. 2016); United States v. 

Beckham, 838 F.3d 731, 733 (6th Cir. 2016). Prior to the commentary, circuits 

were split on whether district courts could take account of a prior departure 

for overrepresented criminal history when reducing a sentence. Compare 

United States v. Fleming, 617 F.3d 252, 272 (3rd Cir. 2010), and United States 

v. McGee, 553 F.3d 225, 229–30 (2d Cir. 2009) (both taking account of the 

departure), with United States v. Pembrook, 609 F.3d 381, 384 (6th Cir. 2010), 

and United States v. Darton, 595 F.3d 1191, 1197 (10th Cir. 2010) (both not 

taking account of it). The commentary was aimed at resolving the split See

U.S.S.G. app. C (2011) (giving reasons for Amendment 759); see also United 

States v. Muldrow, 844 F.3d 434, 437 (4th Cir. 2016). To give that commentary 

effect, we must join the other circuits that have followed the Commission’s 

instruction. 

That leaves Leatch’s arguments that this constraint in the Guidelines 

for sentencing reductions is unlawful. He first contends that a district court’s 

inability to impose the previously-applied departure violates United States v. 

Booker, 543 U.S. 220 (2005). But we have previously held that Booker does not 

apply to section 3582(c)(2) proceedings, because a sentence reduction under the 

limited circumstances specified by the Sentencing Commission is not a full 

resentencing. Dillon v. United States, 560 U.S. 817, 826 (2010); United States 

v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). Nor has Leatch established a 

due process violation, as he is unable to show that he had a protected interest 

in receiving both a sentence reduction under section 3582(c)(2) and a reduced 

criminal history category under section 4A1.3(b). See United States v. Chapple, 

847 F.3d 227, 231 (5th Cir. 2017); Meza v. Livingston, 607 F.3d 392, 399 (5th 

Cir. 2010). No ex post facto violation occurred, as the amendment to the section

 Case: 16-10701 Document: 00514021879 Page: 7 Date Filed: 06/06/2017
No. 16-10701

8 

1B1.10 commentary did not have the effect of retroactively increasing the 

punishment for an offense. See United States v. Caulfield, 634 F.3d 281, 283 

(5th Cir. 2011). And we have rejected the argument that Congress’s 

instructions that the Sentencing Commission determine whether and when a 

sentencing reduction should apply violates the separation of powers. United 

States v. Garcia, 655 F.3d 426, 434-35 (5th Cir. 2011). 

Leatch has also not established that the district court’s inability to 

reapply the departure violates res judicata or collateral estoppel, because a 

section 3582(c)(2) reduction proceeding operates under a different set of rules 

from a resentencing. Dillon, 560 U.S. at 825–26. The 3582(c)(2) proceeding 

does not fit into a preclusion framework because it is not the same action as 

the earlier resentencing. 

As for his contention that depriving him of the departure will undermine 

the sentencing goal of proportionality between himself and his codefendants, a 

sentence reduction under section 3582(c)(2) is distinct from a full resentencing 

proceeding. Id. at 825–26; Doublin, 572 F.3d at 238. The failure to incorporate 

the goals of sentencing into a provision constituting “a congressional act of 

lenity intended to give prisoners the benefit of later enacted adjustments to the 

judgments reflected in the Guidelines” does not render the proceedings unjust. 

Dillon, 560 U.S. at 828. 

 Some of the circuits that agree that the Guidelines disallow a sentencing 

court from reapplying a prior criminal history departure have nonetheless 

agreed with Leatch’s critique of that policy decision. See, e.g., Montanez, 717 

F.3d at 294 (“[W]e question why a court should not have the discretion to give 

defendants the benefit of section 4A1.3 departures during the sentencing 

reduction proceedings. A criminal history category that exaggerates a 

defendant’s past crimes during an initial sentencing will continue to do so at a 

 Case: 16-10701 Document: 00514021879 Page: 8 Date Filed: 06/06/2017
No. 16-10701

9 

reduction.”); Hogan, 722 F.3d at 63 (“Because the Commission has made clear 

that a defendant’s ‘amended guideline range’ does not incorporate previously 

granted departures under §4A1.3, a defendant’s criminal history category that 

overstates his past crimes during an initial sentencing will continue to do so 

when that defendant moves for a reduction.”). They make some good points. 

But as it is solely through the Commission’s grace that these retroactive

reductions come about, it is for that body to decide the wisdom of limits on the 

scope of such reductions. 

 The judgment of the district court is AFFIRMED. 

 Case: 16-10701 Document: 00514021879 Page: 9 Date Filed: 06/06/2017