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 posse ssion of methamphetamine with intent to distribute. The Presentence Investigat ion Report (PSR) calculated a Guidelines

* After examining the briefs and appellate record, this panel has determined unanimously that oral argum ent 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 ordere d submitted without oral argument. This order and judgment isn’t bind ing precedent, except under the doctrines of law of the case, res judi cata, 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 Court2 range of 168 to 210 months in prison. The district cour t adopted the PSR’s findings and imposed a 168-month sentence. In 2015, Mowery filed a motion for se ntence 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 resu lt in a lower Guidelines range. The government opposed the motion, and the di strict court dismissed the motion on the basis that “Amendment 782 has not resulted in a lower sentencing range than what this Court imposed previ ously.” R. vol. 1, 42; see § 3582(c)(2) (authorizing resentencing only when the original sent ence 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. Neverthele ss, the district court agai n 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 di strict 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 no tice 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) (unpublis hed) (reviewing u nderlying motion for3 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 origin al sentence. Based on the amount of actual methamphetamine attri buted 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 th ree-level enhancement pursuan t to U.S.S.G. § 3C1.3 and 18 U.S.C. § 3147(1). Accordingly, his total offens e level was 34, which, when combined with his category II criminal histor y, 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 cons ecutive 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 provi des that “[a] term of imprisonment imposed under this section sh all be consecutive to any other sentence of imprisonment.” In explaining that requirement, the Guidelin es state that “the court, in order to comply with th e statute, should divide the sentence on the judgment form between the sentence attri butable to the underlying of fense 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 app eal designated the dist rict court’s order dismissing [defendant’s] motion to recons ider as the order appealed from”).4 division, Mowery’s sentence remained a “total punishment” that fell within the applicable Guidelines ra nge 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 leve l of 34. Amendment 782 lowered the base offense level to 32, and Amendment 788 ma de that reduction retroactive. When calculating an amended Guide lines range under § 3582(c)(2 ), “the court shall . . . leave all other guideline application decisi ons unaffected.” U.S.S.G. § 1B1.10(b)(1). Here, after lowering Mowe ry’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 tota l offense level is 32. That corresponds to a Guidelines range of 135 to 168 mont hs. Because that range is lower than Mowery’s original range of 168 to 210 mont hs, 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 dist rict 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 te rm 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 c ourt to consider any appli cable § 3553(a) factors and determine whether, in it s discretion, the reduction



### . . . is warranted”).5 sentenced the defendant to 78 months in pr ison based on a Guidelin es range of 151 to 188 months. Id. at 1235 & n.1. When Amendmen t 782 subsequently lowered the defendant’s Guidelines range to 121 to 151 m onths, the district court therefore lacked authorization to reduce the defendant’s sent ence (because 78 months is less than 121 months). Id. at 1235. Here, the district court not ed that the portion of Mowe ry’s original sentence attributed to the drug offe nse was 121 months. Relying on Kurtz , the district court concluded that because 121 m onths is lower than the lo w end of Mowery’s amended Guidelines range of 135 to 16 8 months, Mowery is ineligib le for a reduced sentence. The district court erred in bifurcati ng Mowery’s sentence and considering only the 121 months attributed to the underlyi ng drug offense. Although the original sentencing court was required to delineate th e portions of the sentence attributed to the drug offense and the § 31 47(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 gui deline range is 30-37 months and the court determines a ‘t otal punishment’ of 36 months is appropriate, a sentence of 30 months for the underlying offens e plus 6 months unde r 18 U.S.C. [§] 3147 would satisfy this requirement.” Id. The original sentencing court determin ed that Mowery’s total sentence was 168 months. And it constructed a divided sentence that satisf ied § 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 (10th6 Cir. 1995). Rather, it is “strictly a sentencing enhancement provision.” Id. Accordingly, a § 3147(1) enhancement opera tes in the same way “as in any other case in which a [Guidelines] adjustment a pplies.” 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 speci fic number of months. Id. ; see § 3147(1). But that attribution doesn’t change the fact that the court re nders a “total punishme nt” 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 poi nt 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—Mow ery is eligible for resentencing. Accordingly, we reverse the district court’s order dismis sing 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 a ppealability (COA). But because this appeal doe sn’t concern a habeas cor pus proceeding, no COA is required. Cf. 28 U.S.C. § 2253(c)(1). We theref ore deny Mowery’s request for a COA as moot.