UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MATTHEW MOWERY, 

 Defendant - Appellant. 

No. 16-2247 

(D.C. No. 1:08-CR-02436-JAP-1) 

(D.N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. 

_________________________________ 

Defendant Matthew Mowery appeals the district court’s dismissal of his 

motion for resentencing under 18 U.S.C. § 3582(c)(2). Because we conclude the 

district court had authority to resentence Mowery, we reverse. 

In 2009, Mowery pleaded guilty to possession of methamphetamine with intent 

to distribute. The Presentence Investigation Report (PSR) calculated a Guidelines 

 * After examining the briefs and appellate record, this panel has 

determined unanimously that oral argument wouldn’t materially assist in 

the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 

34.1(G). The case is therefore ordered submitted without oral argument. 

This order and judgment isn’t binding precedent, except under the 

doctrines of law of the case, res judicata, and collateral estoppel. But it 

may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 

32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

May 25, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

range of 168 to 210 months in prison. The district court adopted the PSR’s findings 

and imposed a 168-month sentence. 

In 2015, Mowery filed a motion for sentence reduction pursuant to 18 U.S.C. 

§ 3582(c)(2) and Amendment 782 to the United States Sentencing Guidelines. 

Mowery asserted that Amendment 782, when applied retroactively to his sentence, 

would reduce his offense level and result in a lower Guidelines range. The 

government opposed the motion, and the district court dismissed the motion on the 

basis that “Amendment 782 has not resulted in a lower sentencing range than what 

this Court imposed previously.” R. vol. 1, 42; see § 3582(c)(2) (authorizing 

resentencing only when the original sentence was “based on a sentencing range that 

has subsequently been lowered by the Sentencing Commission”). 

Mowery filed a motion to reconsider the district court’s dismissal. This time, 

the government conceded that the district court was authorized under § 3582(c)(2) to 

resentence Mowery. Nevertheless, the district court again concluded that it lacked 

authority to resentence Mowery, and it denied his motion to reconsider. 

Mowery appeals.1

 The government concedes, as it did below, that Mowery is 

eligible for resentencing. Exercising de novo review, see United States v. Rhodes, 

 1

 Although Mowery’s notice of appeal designates only the district court’s 

denial of his motion for reconsideration, we may review the district court’s initial 

dismissal of Mowery’s motion for resentencing. See Bowdry v. United Airlines, Inc., 

58 F.3d 1483, 1489 n.11 (10th Cir. 1995) (holding that notice of appeal explicitly 

designating denial of motion to reconsider was nevertheless sufficient to designate 

original order); United States v. McKinney, No. 16-3252, 2017 WL 1130169, at *1-2 

(10th Cir. Mar. 27, 2017) (unpublished) (reviewing underlying motion for 
3 

549 F.3d 833, 837 (10th Cir. 2008), we reverse. The district court was authorized to 

resentence Mowery because Amendment 782 lowered the applicable Guidelines 

range. 

We begin by explaining Mowery’s original sentence. Based on the amount of 

actual methamphetamine attributed to Mowery, his base offense level was 34. He 

received a three-level reduction for accepting responsibility. And because he 

committed the underlying offense while on supervised release for a 2005 drug 

conviction, he received a three-level enhancement pursuant to U.S.S.G. § 3C1.3 and 

18 U.S.C. § 3147(1). Accordingly, his total offense level was 34, which, when 

combined with his category II criminal history, yielded a range of 168 to 210 months. 

The district court sentenced Mowery to 168 months in prison. But the district 

court divided the sentence into two consecutive terms—the court attributed 121 

months to the underlying drug offense and 47 months to the § 3147(1) enhancement. 

This division was mandated by § 3147(1) itself, which provides that “[a] term of 

imprisonment imposed under this section shall be consecutive to any other sentence 

of imprisonment.” In explaining that requirement, the Guidelines state that “the court, 

in order to comply with the statute, should divide the sentence on the judgment form 

between the sentence attributable to the underlying offense and the sentence 

attributable to the enhancement.” U.S.S.G. § 3C1.3 cmt. n.1. But despite that 

 

resentencing even though “the notice of appeal designated the district court’s order 

dismissing [defendant’s] motion to reconsider as the order appealed from”). 
4 

division, Mowery’s sentence remained a “total punishment” that fell within the 

applicable Guidelines range for the drug offense. Id. 

That Guidelines range—168 to 210 months—was subsequently lowered by 

Amendment 782. Under the 2008 Guidelines, the drug quantity attributable to 

Mowery resulted in a base offense level of 34. Amendment 782 lowered the base 

offense level to 32, and Amendment 788 made that reduction retroactive. When 

calculating an amended Guidelines range under § 3582(c)(2), “the court shall . . . 

leave all other guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1). 

Here, after lowering Mowery’s new base offense level by three for accepting 

responsibility and raising it by three for the § 3147(1) enhancement—just as the first 

sentencing court did—Mowery’s amended total offense level is 32. That corresponds 

to a Guidelines range of 135 to 168 months. Because that range is lower than 

Mowery’s original range of 168 to 210 months, he is eligible for resentencing under 

§ 3582(c)(2). See Dillon v. United States, 560 U.S. 817, 819 (2010).2

In dismissing Mowery’s motion, the district court relied on our decision in 

United States v. Kurtz, 819 F.3d 1230 (10th Cir. 2016). There, we noted that a court 

can’t “reduce the defendant’s term of imprisonment . . . to a term that is less than the 

minimum of the amended guideline range.” Id. at 1234 (alteration in original) 

(quoting U.S.S.G. § 1B1.10(b)(2)(A)). The original sentencing court in Kurtz

 2

 Of course, Mowery’s mere eligibility for resentencing doesn’t require the 

district court to lower his sentence. See Dillon, 560 U.S. at 827 (explaining that 

“§ 3582(c)(2) instructs a court to consider any applicable § 3553(a) factors and 

determine whether, in its discretion, the reduction . . . is warranted”). 
5 

sentenced the defendant to 78 months in prison based on a Guidelines range of 151 to 

188 months. Id. at 1235 & n.1. When Amendment 782 subsequently lowered the 

defendant’s Guidelines range to 121 to 151 months, the district court therefore lacked 

authorization to reduce the defendant’s sentence (because 78 months is less than 121 

months). Id. at 1235. 

Here, the district court noted that the portion of Mowery’s original sentence 

attributed to the drug offense was 121 months. Relying on Kurtz, the district court 

concluded that because 121 months is lower than the low end of Mowery’s amended 

Guidelines range of 135 to 168 months, Mowery is ineligible for a reduced sentence. 

The district court erred in bifurcating Mowery’s sentence and considering only 

the 121 months attributed to the underlying drug offense. Although the original 

sentencing court was required to delineate the portions of the sentence attributed to 

the drug offense and the § 3147(1) enhancement, Mowery’s “total punishment” was 

168 months. See U.S.S.G. § 3C1.3 cmt. n.1. The Guidelines offer the following 

illustration: “For example, if the applicable adjusted guideline range is 30-37 months 

and the court determines a ‘total punishment’ of 36 months is appropriate, a sentence 

of 30 months for the underlying offense plus 6 months under 18 U.S.C. [§] 3147 

would satisfy this requirement.” Id.

The original sentencing court determined that Mowery’s total sentence was 

168 months. And it constructed a divided sentence that satisfied § 3147(1) and 

U.S.S.G. § 3C1.3 cmt. n.1. But as the government notes, § 3147(1) doesn’t set forth 

“a separate offense of conviction.” United States v. Browning, 61 F.3d 752, 756 (10th 
6 

Cir. 1995). Rather, it is “strictly a sentencing enhancement provision.” Id.

Accordingly, a § 3147(1) enhancement operates in the same way “as in any other 

case in which a [Guidelines] adjustment applies.” U.S.S.G. § 3C1.3 cmt. n.1. It 

differs from ordinary adjustments only in that the sentencing court is required to 

attribute to it a specific number of months. Id.; see § 3147(1). But that attribution 

doesn’t change the fact that the court renders a “total punishment” that must fall 

within “the guideline range for the offense committed.” U.S.S.G. § 3C1.3 cmt. n.1. 

Thus, when determining whether a defendant’s original sentence falls below an 

amended Guidelines range, the correct point of comparison is the defendant’s total

original sentence—even when that sentence includes a § 3147(1) enhancement. And 

because Mowery’s 168-month sentence is higher than the low end of his amended 

Guidelines range—135 to 168 months—Mowery is eligible for resentencing. 

Accordingly, we reverse the district court’s order dismissing Mowery’s motion 

for resentencing and remand for further proceedings.3

Entered for the Court 

Nancy L. Moritz 

Circuit Judge 

 3

 In his opening brief, Mowery requests a certificate of appealability (COA). 

But because this appeal doesn’t concern a habeas corpus proceeding, no COA is 

required. Cf. 28 U.S.C. § 2253(c)(1). We therefore deny Mowery’s request for a COA 

as moot.