UNITED STATES of America, Plaintiff-Appellant, v. Gregory Alan ETHERTON, Defendant-Appellee

101 F.3d 80 96 Cal. Daily Op. Serv. 8284 , 96 Daily Journal D.A.R. 13,781 UNITED STATES of America, Plaintiff-Appellant, v. Gregory Alan ETHERTON, Defendant-Appellee. No. 95-30381. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 19, 1996. Decided Nov. 18, 1996. Lisa Simotas, United States Department of Justice, Washington, D.C., for plaintiff-appellant. Wendy Willis, Assistant Federal Public Defender, Portland, Oregon, for defendant-appellee. Appeal from the United States District Court for the District of Oregon, Helen J. Frye, District Judge, Presiding. D.C. No. CR-90-00028-3-HJF. Before: PREGERSON, BOOCHEVER and T.G. NELSON, Circuit Judges. BOOCHEVER, Circuit Judge: 1 The United States appeals the district court's reduction of the prison term imposed on Gregory Alan Etherton ("Etherton") following the revocation of his supervised release to time served. We affirm. I. FACTS AND PROCEDURAL HISTORY 2 In February of 1991 Etherton pleaded guilty to a one-count information charging him with conspiracy to manufacture and distribute more than 50 marijuana plants, in violation of 21 U.S.C. §§ 841 (a)(1), 841(b)(1)(C), and 846. The marijuana…

The United States appeals the district court’s reduction of the prison term imposed on Gregory Alan Etherton (“Etherton”) following the revocation of his supervised release to time served. We affirm.

I. FACTS AND PROCEDURAL HISTORY

In February of 1991 Etherton pleaded guilty to a one-count information charging him with conspiracy to manufacture and distribute more than 50 marijuana plants, in violation of 21 U.S.C. §§ 841 (a)(1), 841(b)(1)(C), and 846. The marijuana equivalency guidelines in effect at the time treated each marijuana plant as equivalent to one kilogram of dry marijuana. Etherton’s 683 marijuana plants were thus equivalent to 683 kilograms of dry marijuana. [ER 9] See U.S.S.G. § 2Dl.l(c) (Nov.1994) (amended 1995). After adjustments, the final guideline range called for 51-68 months in prison.

*81 The district court sentenced Etherton to 51 months in prison to be followed by a three-year term of supervised release subject to standard and special conditions. [ER 6-7] Etherton completed his prison term and began serving his supervised-release term in March 1995. Three months later, Etherton’s probation officer informed the district court that Etherton had violated…

dissenting:

At the time Mr. Etherton was released by the district court, he had been sent back to prison for violating the terms of his supervised release. The statute the district judge relied on in releasing him provides that a district court may modify a term of imprisonment if it is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission_” 18 U.S.C. § 3582 (e)(2).

The error in the majority’s analysis can be seen by asking and answering three simple questions: ■

1. What term of imprisonment was imposed on Mr. Etherton based on a sentencing range subsequently lowered by the Commission? Answer: Fifty-one months, pursuant to § 2Dl.l(c).

2. What term of imprisonment was Mr. Etherton serving when released? Answer: Seven months for violation of supervised release, pursuant to § 7B1.4.

3. Was the sentencing range under § 7B1.4 lowered by the Commission? Answer: No.

The answers to these questions lead inexorably to the conclusion that the term of imprisonment for violation of supervised release was- not subject to modification by the district court under § 3582(e)(2).

We are not free to ignore the terms of the statute by conflating “sentence”…