United States of America v. Kris Koglin

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15-1943 & 15-1946
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K RIS K OGLIN ,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
Nos. 1:12CR00141-009 & 1:12CR00204-001 — Larry J. McKinney, Judge.
____________________
A RGUED O CTOBER 2, 2015 — DECIDED M AY 17, 2016
____________________
Before POSNER , S YKES, and HAMILTON , Circuit Judges.
S YKES, Circuit Judge. Kris Koglin appeals the district
court’s denial of his motion for a sentence reduction under
18 U.S.C. § 3582(c)(2) based on the retroactive 2014 amend-
ment to the drug-quantity sentencing guideline. Because the
amendment does not have the effect of lowering Koglin’s
guideline sentencing range, he is not eligible for a sentence
reduction.

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I. Background
In September 2012, a federal grand jury indicted Koglin
and ten others on several charges stemming from their
involvement in a large marijuana-distribution ring in
Indianapolis. Koglin was charged with conspiracy to possess
with intent to distribute and to distribute 1,000 kilograms or
more of marijuana in violation of 21 U.S.C. § 846 and posses-
sion of marijuana with intent to distribute in violation of
21 U.S.C. § 841(a)(1). In a separate but related case, the
government later charged Koglin by information with
engaging in a monetary transaction worth more than $10,000
involving property he knew to be derived from criminal
activity in violation of 18 U.S.C. § 1957.
Koglin pleaded guilty to the conspiracy and the drug-
money counts and agreed to assist the government in its
prosecution of his coconspirators. To calculate the recom-
mended sentencing range under the Sentencing Guidelines,
Koglin’s presentence report (“PSR”) began with a base
offense level of 32, which applied to crimes involving 1,000
to 3,000 kilograms of marijuana. See U.S.S.G. § 2D1.1(c)(4)
(Nov. 1, 2013). Koglin qualified for a “mitigating role”
adjustment under § 3B1.2(b), so his base offense level
dropped from 32 to 30. Id. § 2D1.1(a)(5) (providing that if the
defendant qualifies for a § 3B1.2 “mitigating role” adjust-
ment and his base offense level is 32, the base offense level is
reduced to 30). The PSR then recommended the following
Chapter 2 and 3 adjustments: a two-level enhancement for
possessing multiple firearms in connection with a drug-
trafficking offense, id. § 2D1.1(b)(1); a two-level “mitigating
role” reduction under § 3B1.2(b) (on top of the two-level
reduction in the base offense level under the drug-quantity

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Nos. 15-1943 & 15-1946 3
guideline, § 2D1.1(a)(5)); and a three-level reduction for
accepting responsibility, id. § 3E1.1. This yielded an adjusted
offense level of 27, which when combined with Koglin’s
criminal history category of 1, produced a guideline sentenc-
ing range of 70 to 87 months in prison.
Koglin’s conspiracy conviction, however, carried a ten-
year minimum sentence, see 21 U.S.C. § 841(b)(1)(A), so his
guideline “range” became 120 months, see U.S.S.G.
§ 5G1.1(b) (“Where a statutorily required minimum sentence
is greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence shall be
the guideline sentence.”).
At sentencing the government moved for a sentence be-
low the statutory minimum to reflect Koglin’s substantial
assistance, as permitted by 18 U.S.C. § 3553(e). The district
judge adopted the PSR’s recommendations, granted the
government’s § 3553(e) motion, and sentenced Koglin to
concurrent terms of 57 months.
In November 2014 the United States Sentencing Commis-
sion adopted Amendment 782 to the Sentencing Guidelines,
lowering the recommended penalties for most drug crimes
by reducing the base offense levels in the § 2D1.1 Drug
Quantity Table by two levels. As relevant here, Amend-
ment 782 reduced the base offense level for offenses involv-
ing 1,000 to 3,000 kilograms of marijuana from 32 to 30.
U.S.S.G. app. C, amend. 782. The Commission later made
this amendment retroactive. See id. § 1B1.10(d).
Relying on Amendment 782, Koglin moved for a sen-
tence reduction under § 3582(c)(2). The government agreed
that Koglin was eligible for a sentence reduction but asked

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the judge to exercise his discretion to deny Koglin an “unjus-
tified windfall” of a further sentence reduction. The judge
denied Koglin’s motion, but for a different reason: The judge
concluded that Koglin was ineligible for a sentence reduc-
tion because Amendment 782 “does not have the effect of
lowering [his] guideline range.”
II. Discussion
Section § 3582(c)(2) provides that the district court may
reduce the prison term of a defendant who was “sentenced
to a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing Commis-
sion.” The statute permits the court to reduce the defend-
ant’s prison term “after considering the factors set forth in
section 3553(a) to the extent that they are applicable,” but
only “if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.”
§ 3582(c)(2) (emphasis added.)
The Supreme Court has held that § 3582(c)(2) establishes
a two-step inquiry: First, the court determines whether a
sentence reduction is consistent with the applicable policy
statements promulgated by the Sentencing Commission; if it
is, then the court considers whether a reduction is warranted
after weighing any applicable § 3553(a) factors. Dillon v.
United States, 560 U.S. 817, 826–27 (2010). This appeal begins
and ends with step one.
The relevant policy statement is found at § 1B1.10 of the
Sentencing Guidelines. That section provides that a sentence
reduction is not authorized if the relevant amendment,
though retroactive, “does not have the effect of lowering the
defendant’s applicable guideline range.” § 1B1.10(a)(2)(B).

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Nos. 15-1943 & 15-1946 5
Section 1B1.10(b)(1) directs the court to “determine the
amended guideline range that would have been applica-
ble … if the amendment(s) to the guidelines … had been in
effect at the time the defendant was sentenced.” The policy
statement also makes clear that the inquiry is a limited
recalculation of the guideline range, not a full-blown resen-
tencing: The policy statement instructs the court to replace
the old provision with the new provision and “leave all
other guideline application decisions unaffected.”
§ 1B1.10(b)(1).
Koglin seizes on that last phrase—“leave all other guide-
line application decisions unaffected”—and argues that we
should look only to the change effected by Amend-
ment 782—that is, the two-level drop in the base offense
level in the Drug Quantity Table—and ignore any potential
interaction between the amendment and other parts of the
guidelines.
This argument misunderstands § 1B1.10(b)(1). The
phrase “leave all other guideline application decisions
unaffected” simply instructs the court to apply only the
amendments listed in § 1B1.10(d) and avoid relitigating the
factual findings made in the original sentencing decision.
The policy statement does not instruct the court to ignore the
effect of the amended guideline on other guideline provi-
sions that, in combination, produced the defendant’s sen-
tencing range. As we’ve explained before, “[t]he ‘sentencing
range’ that must have been changed to permit relief under
§ 3582(c)(2) is not the base offense level or any other inter-
mediate step in the guideline calculation, but the bottom-
line, final range that was the basis for the sentence.” United
States v. Taylor, 778 F.3d 667, 672 (7th Cir. 2015). And “[r]elief

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is not available if a retroactive amendment ‘does not have
the effect of lowering the defendant’s applicable guideline
range.’” Id. (quoting U.S.S.G. § 1B1.10(a)(2)(B)).
So what matters under § 3582(c)(2) and § 1B1.10 is
whether the “bottom-line, final range” would have been
lower if the amendment had been in effect when the defend-
ant was sentenced. Id. If the range would not have been
lower, then the defendant is ineligible for a sentence reduc-
tion and the inquiry ends.
To return to this case, the key question is whether
Koglin’s guideline range would have been lower had
Amendment 782 been in place when he was originally
sentenced. The answer is “no.”
Before we explain why, we pause to note that the gov-
ernment’s response to Koglin’s motion in the district court
focused on whether the ten-year statutory minimum sen-
tence on the conspiracy count made Koglin ineligible for a
sentence reduction under § 3582(c)(2). The government
correctly stated that it does not. One could be forgiven for
thinking otherwise: Regardless of the reduction in the base
offense level brought about by Amendment 782, the manda-
tory minimum keeps Koglin’s guideline sentence at
120 months.
But § 1B1.10(c) instructs courts to ignore mandatory min-
imums when determining whether a defendant is eligible for
a sentence reduction in situations where, as here, the sen-
tencing court “had the authority to impose a sentence below
the statutorily required minimum sentence pursuant to a
government motion to reflect the defendant’s substantial
assistance to authorities.” Application Note 4 explains how

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Nos. 15-1943 & 15-1946 7
this provision might operate in a case like Koglin’s: The
court can calculate the substantial-assistance credit originally
awarded as a percentage reduction from the mandatory
minimum, then apply that same percentage reduction to the
amended guideline range, which is first calculated without
regard to the mandatory minimum. U.S.S.G. § 1B1.10 cmt.
n.4(B).
Although the government got this part of the analysis
right, the rest of its response in the district court was a
“swing and a miss,” as the prosecutor put it at oral argu-
ment. After conceding that Koglin was eligible for a sentence
reduction notwithstanding the mandatory minimum, the
government urged the judge to decline to award the “wind-
fall” of a further sentence reduction. By proceeding directly
to a discussion of the court’s discretion, the government
omitted an important step in the analysis. If Amendment 782
does not actually have the effect of lowering Koglin’s guide-
line range, he is ineligible for a sentence reduction and the
inquiry proceeds no further.
Although the government overlooked this point in the
district court, it was not lost on the judge, who reached the
correct result. And despite this misstep, the government
now defends the judge’s decision for the right reason.
As we’ve explained, when Koglin was originally sen-
tenced, the base offense level for his counts of conviction—
offenses involving 1,000 to 3,000 kilograms of marijuana—
was 32. Under § 2D1.1(a)(5), however, a defendant (like
Koglin) who qualifies for a “mitigating role” adjustment
under § 3B1.2 and whose base offense level is 32 gets the
benefit of a two-level reduction in the base offense level, to
level 30. Koglin received this reduction at sentencing. But

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when Amendment 782 is applied, the base offense level for
this drug type and quantity drops from 32 to 30, knocking
out the two-level reduction under § 2D1.1(a)(5), which
applies only to defendants whose base offense level is 32. In
other words, the two-level reduction in Amendment 782
cancels out the two-level reduction in § 2D1.1(a)(5), and the
net effect of the amendment on Koglin’s guideline range is
zero.
Accordingly, the judge correctly concluded that because
Amendment 782 does not have the effect of lowering
Koglin’s guideline range, he is ineligible for a sentence
reduction.
A FFIRMED.

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