FILED

United States Court of Appeals

Tenth Circuit

February 22, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRY L. CORBER,

Defendant - Appellant.

No. 09-3006

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D. Ct. No. 5:04-CR-40003-SAC-01)

Kirk C. Redmond, Assistant Federal Public Defender (Cyd Gilman, Federal

Public Defender, with him on the brief), Office of the Federal Public Defender for

the District of Kansas, Topeka, Kansas, appearing for Appellant.

James A. Brown, Assistant United States Attorney (Marietta Parker, Acting

United States Attorney, with him on the brief), Office of the United States

Attorney for the District of Kansas, Topeka, Kansas, appearing for Appellee.

Before TACHA, HOLLOWAY, and GORSUCH, Circuit Judges.

TACHA, Circuit Judge.

Defendant-appellant Terry L. Corber appeals from the district court’s

dismissal of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). The

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The district court heard arguments at the sentencing hearing and then took

the matter under advisement. The court later sentenced Mr. Corber and set forth

(continued...)

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district court reasoned that it lacked authority to grant a sentence reduction

because Mr. Corber’s sentence was based on the career-offender provision of the

United States Sentencing Guidelines, see U.S.S.G. § 4B1.1, rather than on the

provision governing crack cocaine offenses, see § 2D1.1(c). We have jurisdiction

under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

Mr. Corber was convicted in late 2004 of distributing 8.59 grams of cocaine

base in violation of 21 U.S.C. § 841(a)(1). The presentence report (“PSR”)

calculated a base offense level of 26 under § 2D1.1(c)(7) of the 2004 United

States Sentencing Manual (“U.S.S.G.” or “Guidelines”) and determined Mr.

Corber’s criminal history category was VI. This produced an advisory Guidelines

range of 120–150 months’ imprisonment. Mr. Corber had three prior convictions

for burglary, however, which triggered application of U.S.S.G. § 4B1.1, the

career-offender provision. Under that section, Mr. Corber’s base offense level

was 34, which resulted in a Guidelines range of 262–327 months. 

The district court sentenced Mr. Corber to 136 months’ imprisonment

pursuant to a downward variance, reasoning that such a term was sufficient, but

not greater than necessary, to meet the sentencing purposes set forth in 18 U.S.C.

§ 3553(a). In the court’s written statement of reasons,1

 dated April 13, 2005, it

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(...continued)

its rationale in the written statement of reasons. The sentencing transcript is not

part of the record on appeal.

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stated that “there are other considerations unique to this case that impel tailoring

a sentence below the career offender guideline range.” The court noted that two

of Mr. Corber’s burglaries did not involve violence or injury to others; all three of

the burglaries were committed before he was twenty-five years old and the last

was committed seven years before the instant offense; none involved substantial

property loss; and this was Mr. Corber’s first drug conviction. In addition, the

other two defendants in the case were Mr. Corber’s father and uncle, and they had

received much shorter sentences even though they appeared to have been more

involved in drug trafficking. The district court concluded:

After balancing all these considerations, the court finds that a

sentence of 136 months which is below the guideline range required

by the career offender provisions but which falls in the upper half of

the guideline range established by giving full weight to the

defendant’s criminal history (offense level of 26 and criminal history

category of six) would be sufficient but not greater than necessary to

meet the different purposes of sentencing set forth in 18 U.S.C.

§ 3553(a)(2).

On November 1, 2007, the United States Sentencing Commission

promulgated Amendment 706, which provides for a two-level reduction in the

base offense level under U.S.S.G. § 2D1.1(c) for offenses involving cocaine base. 

United States v. Rhodes, 549 F.3d 833, 835 (10th Cir. 2008). Amendment 706

was made retroactive on March 3, 2008. See id. Mr. Corber subsequently filed

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The Sentencing Commission promulgated Amendment 706 pursuant to 28

U.S.C. § 994(o). Rhodes, 549 F.3d at 838 n.3.

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his § 3582(c)(2) motion for sentence reduction, which the district court dismissed. 

Specifically, the court stated that it did not have the authority under § 3582(c)(2)

to reduce Mr. Corber’s sentence because his sentence was not “based on”

U.S.S.G. § 2D1.1:

In the present case, the court did not issue a sentence “based on”

§ 2D1.1, but rather issued a non-guideline sentence based on the

career offender provision. The court varied from the guideline range

of the career offender provision by reducing the sentence after

considering other mitigating factors under § 3553(a). The court’s

sentence was nevertheless based on the guidelines range first

determined from the career offender provision and not on the

guideline range applicable under § 2D1.1.

Following our recent decision in United States v. Darton, – F.3d – (10th

Cir. 2010), we agree.

II. DISCUSSION

A district court’s authority to modify a previously imposed sentence is

limited by § 3582(c), and in this case, § 3582(c)(2). Under § 3582(c)(2):

[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 pursuant to 28 U.S.C. [§]

994(o),2

 . . . the court may reduce the term of imprisonment, . . . if

such a reduction is consistent with applicable policy statements

issued by the Sentencing Commission.

In Darton, we explained that the applicable policy statement found at

U.S.S.G. § 1B1.10(a)(2)(B) informs our understanding of the meaning of the

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phrase “based on a sentencing range that has subsequently been lowered [by

Amendment 706].” See id. at –. Under the policy statement, a sentence reduction

is not authorized if the amendment at issue “does not have the effect of lowering

the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). 

Although § 3582(c)(2) and § 1B1.10(a)(2)(B) appear to impose two limitations on

a district court’s authority to reduce a sentence—i.e., the defendant’s sentence

must be “based on a sentencing range that has subsequently been lowered” by an

amendment and the amendment must “lower[] the defendant’s applicable

guideline range”—these limitations are, in fact, “‘identical’ and ‘convey[] the

same meaning.’” Darton, – F.3d at – (quoting United States v. Dryden, 563 F.3d

1168, 1170–71 (10th Cir. 2009)). Thus, we explained in Darton that “a sentence

is ‘based on’ the § 2D1.1 sentencing range when § 2D1.1 produces the

defendant’s ‘applicable guideline range.’” Id. at –. 

In Mr. Corber’s case, then, we must determine whether his “applicable

guideline range” (and, accordingly, the range upon which his sentence is “based”)

is the range produced through application of the § 4B1.1 career-offender

provision or the range produced through application of § 2D1.1, which is the

range to which the court ultimately varied in imposing Mr. Corber’s particular

sentence. This is a question of law that we review de novo. Id. at –. 

Again, Darton guides our analysis. In that case, the defendant qualified as

a career offender under § 4B1.1, but the district court departed downward from

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the career-offender range and instead imposed a sentence within the range

produced under § 2D1.1 because the defendant’s career-offender status

significantly overrepresented the seriousness of his criminal history. See

§§ 4A1.3, 5K2.0; Darton, – F.3d at –. We agreed with the district court that it

lacked the authority under § 3582(c)(2) to reduce the defendant’s sentence in such

a case, holding that “‘the applicable guideline range’ and the range upon which a

sentence is ‘based’ is, as a matter of law, the range produced under the

guidelines’ sentencing table after a correct determination of the defendant’s total

offense level and criminal history category but prior to any discretionary

departures.” Darton, – F.3d at –. Because that range was the one produced under

the career-offender guideline, which Amendment 706 does not affect, see United

States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008), the district court had no

authority to reduce the sentence. Darton, – F.3d at –. 

Although Darton is distinguishable because the defendant in that case was

sentenced to a below-guideline sentence through a departure, rather than a

variance, the rationale employed by the Darton court applies with equal force in

this case. We began in Darton by recognizing that the guidelines categorically

define a departure as “a sentence outside the applicable guideline range.” See id.

at –. Thus, “a departure exists only apart from the applicable guideline range;

there is no such thing as a departure to the applicable guideline range.” Id. at –.

Although the guidelines do not define “variance,” our post-Booker jurisprudence

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has repeatedly characterized a variance in equivalent terms. See, e.g., United

States v. Villa-Vazquez, 536 F.3d 1189, 1197 (10th Cir. 2008) (defining

“applicable guideline range” as the range calculated prior to all departures and

variances); United States v. Landers, 564 F.3d 1217, 1224 (10th Cir. 2009)

(affirming district court’s “variance from the . . . applicable guideline range”);

United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (reviewing

the district court’s calculation of the “applicable Guidelines range and the

reasonableness of the downward variance”); United States v. Trotter, 518 F.3d

773, 774 (10th Cir. 2008) (noting the district court sentenced the defendant “at

the bottom of the applicable Guidelines range, [because] the § 3553(a) factors did

not warrant a variance.”). Accordingly, like a departure, a variance is a sentence

outside the “applicable guideline range.” 

The First Circuit likewise reached this conclusion in United States v.

Carabello, 552 F.3d 6 (1st Cir. 2008). There, the court held that a defendant who

qualified as a career offender but who received a downward variance from the

career-offender sentencing range was ineligible for a sentence reduction in part

because his applicable guideline range had not been lowered by Amendment 706:

[E]ven though the defendant received a non-guideline sentence, that

had no effect on the sentencing range applicable in his case (i.e., the

sentencing range contemplated by section 3582(c)). Under an

advisory guidelines system, a variance is granted in the sentencing

court’s discretion after the court has established an appropriately

calculated guideline sentencing range. It is that sentencing range

that must be lowered by an amendment in order to engage the gears

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of section 3582(c)(2).

552 F.3d at 11 (internal citation omitted). Cf. United States v. Tolliver, 570 F.3d

1062, 1066 (8th Cir. 2009) (same, but with respect to a departure).

Mr. Corber urges us to follow the Second Circuit’s decision in United

States v. McGee, 553 F.3d 225 (2d Cir. 2009), which held that the district court

was authorized to reduce the sentence of a defendant who qualified as a career

offender but was ultimately sentenced within the § 2D1.1 range as a result of a

downward departure. As we explained in Darton, however, McGee is

unpersuasive because it fails to address the foundation of our analysis:

§ 1B1.10(a)(2)(B)’s instruction that a sentence reduction is authorized only when

the amendment at issue lowers the defendant’s “applicable guideline range,” and

our court’s definition of a variance as a sentence outside the “applicable guideline

range.” See Darton, – F.3d at –. Rather, McGee focuses primarily on the

guidelines’ policy statement governing the extent of an authorized reduction—not

the sentencing court’s authority to reduce a sentence in the first place. See

McGee, 553 F.3d at 227–28 (interpreting § 1B1.10(b)(2)(B)).

Finally, we explained in Darton that a district court’s decision to exercise

its discretion and impose a variance or departure does not render inapplicable the

career-offender guideline or any other guideline provision pertinent to that

particular defendant’s offense level and criminal history category. Darton, – F.3d

at –. Instead, under our sentencing framework, a district court must first calculate

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the “applicable guideline range.” Id. at –. To do so, the court must apply “each

guideline provision relevant to the particular defendant’s offense and criminal

history category, including the career-offender provision of § 4B1.1, and then

determin[e] the range provided by the sentencing table in Chapter 5, Part A of the

guidelines.” Id. at –. Only then may the court determine the propriety and extent

of a departure or variance; indeed, a court’s failure first to properly calculate the

“applicable guideline range”—including whether the defendant qualifies as a

career offender—is grounds for resentencing. Id. at –. “Thus, the fact that a

sentencing court ultimately sentences a defendant to a below-guideline range does

not mean that the sentence necessarily falls within the ‘applicable guideline

range;’ rather, in such a case, the court has simply selected an alternative

sentence determined by the court to be better tailored to the specific

circumstances of that particular defendant.” Id. at –. 

We therefore extend our holding in Darton to variances as well as

departures. In short, for purposes of a sentence modification under § 3582(c)(2),

the “applicable guideline range” and the range upon which a sentence is “based”

is, as a matter of law, the range produced under the guidelines’ sentencing table

after a correct determination of the defendant’s total offense level and criminal

history category but prior to any discretionary variances. Cf. id. at –. In Mr.

Corber’s case, the applicable guideline range is the range produced under the

career-offender guideline. Because Amendment 706 does not lower this

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sentencing range, the district court was not authorized to reduce his sentence

under § 3582(c)(2). 

III. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s dismissal of

Mr. Corber’s motion for a sentence modification.

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