*1 2K2.1, using without sentencing pur- figure solely that cash into crack for ed the 2D1.1, so, If it generally the cross-reference. applying See poses. 12; Sandridge, v. the n. States the 2004 version of applied cmt. must have (6th Cir.2004). consistently F.3d Hughley But Guidelines. that such court must ensure a conver- The to that post challenge raised an ex facto counting, not in double version, result sion that the court did not mention it if the were would cash Moreover, the ac- objection. drugs were for the same that payment pre- that the district court had knowledges F.3d Sandridge, 385 at 1038. See misstated, seized. than viously steps as two rather four, offense Hughley’s difference says the court double counted Hughley cash level with and without conversion of that he had Specifically, here. repetition A of that mistake crack. to his crack brother just sold seized calculation. explain would also court’s Turner, co-defendant Howard money proceeds was the the sale. A based on an erroneous decision support in the argument finds some premise an of discretion. legal abuse testimony of wit- government’s sole Corp., See Ott v. Midland-Ross ness, Agent ATF Paris Gillette. He testi- Cir.1979). To decide whether Hughley identified fied that Turner had error, the court made such we must cocaine, and of crack that Tur- his source identify first be able to the basis for gone residence on Hughley’s ner had decision, district we cannot court’s purchase the date of the search to crack do therefore the court’s here. We vacate all resale. Gillette also confirmed that Hughley’s denial residence was on of the cash found court to con remand while most of the crack was Hughley, duct its anew. determination facts found on Turner. Those are consis- theory. Hughley’s appeal, tent with reason, government, for whatever of- no defense the district court’s con-
fers finding. see no basis in the
version We us, therefore, to
record before affirm the that all of cash finding Hughley be converted to
found should
crack. in the America,
The district court found alterna- UNITED STATES of that, Plaintiff-Appellee, even if a sentence reduction was tive the court permissible under v. grant would exercise discretion its MAXWELL, Defendant- here. generally See Appellant. (6th Cir.2004). Peveler, determination, reaching the court No. 09-5668. converting stated without the cash to Appeals, United States Court of crack, Hughley’s offense level was 27 un- Sixth Circuit. der the amended Guidelines. Aug. 2010. explain The district court did not how level. The govern- calculated says
ment could have reached *2 pursu- for a reduction of sentence
ant U.S.C. originally received a sentence lower than otherwise-applicable statutory mum following Government’s motion for a downward for substantial 3553(e). assistance to 18 U.S.C. The district later determined that he a for un- 3582(e)(2) der because his sentence was not based on set a out in the United (“the Sentencing States Guidelines Manual “U.S.S.G.”) Guidelines” or subse- quently had been reduced the United (“Sentenc- Sentencing States Commission Commission”). ing Because find that no subsequently reduced Guidelines Maxwell, we AFFIRM the district court’s decision.
I. BACKGROUND 8, 2002, On February a in- confidential formant .8 purchased grams of crack-co- caine from Maxwell in a transaction During recorded law enforcement. police the subsequent investigation, coop- erating to obtain- co-conspirators admitted ing large amounts of crack from Maxwell Septem- for distribution in Tennessee. On 4, 2003, ber Maxwell was arrested. A search of residence his resulted heroin, seventy bags seizure of a small quantity marijuana, drug paraphernalia, vest, a a semi- bulletproof .380 caliber a .45 pistol, pistol, automatic caliber Sep- ammunition both On weapons. jury tember a four- grand returned BATCHELDER, BEFORE: Chief him, against charging count indictment COLE, Judge, Circuit MOORE and (1) him conspiracy to distribute and Judges. Circuit possess with intent cocaine base, §§ in violation of 21 846 and OPINION (2) 841(b)(1)(A); distribution cocaine COLE, Judge. Circuit 841(a)(1) base, in of 21 §§ violation (3) (b)(1)(C); heroin, in Defendant-Appellant Maxwell and distribution of 841(a)(1) (b)(1)(c); §§ denial challenges the of his violation of felony previous two (4) in furtherance Because Maxwell’s of a firearm possession convictions, however, he was offense, of drug in violation drug-trafficking of a sen- 924(c)(1)(A)(i). statutorily minimum January mandated *3 pursuant to 2004, imprisonment, of of life filed a Notice tence the United States 841(b)(1)(A). was sub- He also pursuant Penalties to U.S.C. U.S.C. Enhanced five term of to a consecutive minimum prior ject on his convictions § 851 based two of- for the firearms years’ imprisonment felony drug offenses. fense. 27, 2004, appeared Maxwell April On On to the PSR. objections a No were filed and entered
before the court 2004, 23, sentenc- prior to Maxwell’s pursuant plea to a written June guilty, of plea a a motion for ing, Four of the Government filed One and agreement, Counts departure to 18 U.S.C. stipulated The downward agreement the indictment. 3553(e) 5K1.1, recom- that, and approximately September U.S.S.G. from 2004, in- the otherwise- mending a sentence within September knowingly he 292 to 365 of tentionally conspired applicable at least with months, years five for the possess plus consecutive person to distribute and other sentencing hear- of offense. At the kilograms intent to 1.5 firearms with (crack-cocaine) 26, 2004, seventy on June the district ing base cocaine and, heroin, the Government’s weighing approximately granted of bags ability had to evaluate stating that it “no agreement provided The grams. cooperation other cooperate the extent of Maxwell’s Maxwell would United if, has [said] Government’s than what States and in the motion,” ... Maxwell provided assis- their sentenced opinion, substantial imprisonment drug tance, file a mo- 328 months’ the Government would firearms and 60 months for the for a offense downward 3558(e). offense, consecutively, fol- to be served 5K1.1 and 18 U.S.C. U.S.S.G. (Id.) that, release. years supervised if of agreement provided lowed 17.) (R. terms, 99, Sentencing Hr’g the Gov- Tr. of complied with its re- not a two-level oppose ernment would 3, 2008, following the Sen- On March acceptance responsibility, duction for tencing enactment Commission’s 3El.l(a), to U.S.S.G. which, 706 to the Amendment Guidelines— reduc- would move for additional level amended Amendment as further tion, 3El.l(b), if most the base offense level for reduced sixteen or Maxwell’s level was involving crack-cocaine—Maxwell offenses greater. pursu- for a reduction of sentence moved 3582(c)(2). 19, 2004, May On July States Pro- ant to 18 U.S.C. motion, and Pretrial Office issued the district court denied bation Services (“PSR”). was sen- Using reasoning because Maxwell Report Presentence Guidelines, minimum of the the PSR tenced “based 2003 version guideline range on a Maxwell’s offense level at rather than calculated base reduced, thirty- thirty-eight, lowered to responsi- not have lowered acceptance five for Maxwell’s would at not authorize bility, history category guideline and his criminal (R. sentence.” adjusted on this offense level defendant’s six. Based Den. Sentence history the Guide- Order Mot. to Reduce category, and criminal 2.) appeal was set 292 to 365 months. This followed. low, II. ANALYSIS the court may reduce the defen- imprisonment dant’s term of as pro- We review de novo a district court’s vided 18 U.S.C. As determination that a defendant required by 18 U.S.C. for a sentence reduction. United States v. any such reduction in the defen- (6th Cir.2010). Curry, dant’s term of imprisonment shall be A may modify district court a defendant’s policy consistent with this statement. by statute. See only provided 3582(c) (stating that courts (2) Exclusions. —A reduction in the de- “may modify imprisonment a term of fendant’s term imprisonment *4 once it imposed” has been other pur- than not consistent with policy this state- suant to statutory exceptions). One such ment and therefore is not authorized exception is set out in 18 U.S.C. 3582(c)(2) under 18 U.S.C. if— provides that a district (A) none of the amendments listed in may reduce a sentence that is based (c) subsection is applicable to the on a subsequently lowered Guidelines defendant; or range long as the reduction is in accor- (B) an amendment listed in subsection dance with applicable Policy Statements (c) does not have the effect of lower- the Guidelines: ing the defendant’s applicable guide- the case of a [I]n defendant who has line range. been sentenced to a term of imprison-
ment sentencing based on a range that lB1.10(a). Thus, under subsequently has been by lowered combination of and Sentencing Commission pursuant lB1.10(a), may eligible defendant be 994(o), upon U.S.C. motion of the defen- (i) for a sentence reduction when he has dant or the Director of the Bureau of been sentenced “based on” a Guidelines Prisons, motion, or on its own the court range subsequently has been lowered may reduce the term of imprisonment, (ii) range “applicable Guidelines after considering the factors set forth in to” the defendant has been lowered as the 3553(a) section they to the extent are result amendment listed applicable, if such a reduction is lB1.10(c). consis- tent with policy statements Maxwell claims qualifies that he for such issued the Sentencing Commission. a reduction because Amendment 3582(c)(2). further amended Policy One such Statement is U.S.S.G. lowering effect of his applicable Guide- 1.10, § IB which identifies the Guidelines lines of 292 to 365 months to 235 to (including amendments Amendments 706 293 months. Noting that the district 711) that may applied retroactively be court, in sentencing him to 328 months’ and stipulates which may defendants bene- offense, imprisonment drug relied fit from them: on the Government’s recommendation that
(1) In General. —In a case which a he be sentenced within the otherwise-ap-
defendant serving a term im- plicable range, Guidelines prisonment, guideline range his sentence should be being construed as applicable to that defendant has sub- “based on” this range. Because we find sequently been lowered as a result of range subsequently that no Guidelines low- an amendment to the Guidelines ered Sentencing ap- Commission is (c) Maxwell, Manual listed in plicable subsection be- we need not 450 to the range applicable court’s reli whether
address
otherwise-applicable
Guide
from
departure
ance on
calculation
a downward
3553(e).
calculating the
Max
range in
value of
this minimum under
assistance
well’s substantial
satisfies
calcu-
appropriate starting point for
“[T]he
requirement
on”
“based
lating
a downward
Doe,
3553(e)
is the
Cf.
Cir.2009)
(3d
(finding
unnecessary
Stewart,
itself,”
mum
States v.
3582(c)(2)’s
require
address
“based on”
(6th Cir.2002),
“only
F.3d
§ 1B1.10’s
to”
“applicable
ment because
relating
coopera-
factors
to a defendant’s
met).
requirement was
de-
may
influence the extent of [the]
Bullard,
parture.” United
considering
whether a defendant’s
Cir.2004)
(internal quo-
on” a
Guidelines
omitted). Thus,
lowered, we
tation marks and brackets
subsequently
has been
lowered
application
look to “what the district court
of the
original sentencing.”
and did
said
permitted
neither
*5
Hameed,
v.
See United States
required
calculating
nor
in
the
(6th Cir.2010) (internal
259,
quotation
264
the
de-
minimum sentence or
downward
omitted).
contrast,
By
we
marks
when
parture from it.1
subsequently
consider whether a
lowered
allowing
Maxwell
that
a sen
de-
range
“applicable
Guidelines
is
to” the
3582(c)(2)
§
tence reduction
to
fendant,
sentencing
we
to whether
look
the
only
when
1B1.10
requirements
by
and the
framework established
statute
effectively
are met
treats the
as
Guidelines
permits
requires
Guidelines
or
consider-
mandatory, in
violation United
in
range
determining
ation of that
Booker,
738,
543
125
160
S.Ct.
U.S.
at 268-
defendant’s final sentence. See id.
(2005),
Kimbrough
L.Ed.2d 621
v.
269;
Pembrook,
cf.
States,
United
552 U.S.
128 S.Ct.
(6th Cir.2010)
(focusing
(2007).
169 L.Ed.2d
Maxwell
Since
Application
on the
Instructions
to the
appeal,
Supreme
filed his
in
1B1.1 in
Guidelines set out U.S.S.G.
in
rejected
argument
ad
Court
"concluding that
the crack-cocaine Guide-
dressing
question
related
of whether
range
inapplicable
to the defen-
treating
as binding
requirement
lBl.lO’s
dant). Here,
the PSR calculated Max-
that
sentence
adjusted
thirty-five
level
well’s
as
3582(c)(2)
amend
greater
be no
than the
six,
history
resulting
as
in
and his criminal
range implicates Booker.
ed Guidelines
range
a Guidelines
of 292 to 365 months.
States,
U.S. -,
Dillon v.
notes,
range,
This
Guidelines
(2010).
after Amendment 706 reduced the crack III. CONCLUSION levels, cocaine offense Johnson moved for reduction, an additional sentence which the above, For all the reasons we AFFIRM district court We denied. affirmed the the district court’s denial Maxwell’s mo- court, making no distinction be for a sentence reduction tween the on” and “applicable to”
prongs
majority
that the
promote.
seeks to
Instead,
BATCHELDER,
clearly
that in
ALICE M.
Chief
held
cases such
Johnson’s,
Judge, concurring
part
dissenting
the defendant “was not in
fact sentenced
part.
based on Guidelines
Rather,
reduced.
I concur in
majority’s judgment
his sentence was based on the mandatory
Maxwell is
for a
minimum imposed
3282(c).
reduction under
841(b)(1)(A),
unchanged
which remained
However,
disagree
I
the implication
Johnson,
706.”
*6
that, in the
defendant
case of a
who was
Thus,
in
F.3d at 423.
cases such as
a statutory
sentenced
indisputably
these—and Maxwell’s is
mum, we must look
to whether
both
of them —we do not
look to “what the
was
on” a
sentence
said and did at the
lowered,
has been
original
United States v. Ha
sentencing,”
range “appli-
and whether the Guidelines
meed,
inappo-
F.3d at
as that is
cable to” the
has been
defendant
lowered.
Instead,
merely
site.
inquire
as to
Rather,
explained
as I
United States v.
whether the
pur
defendant
sentenced
Hameed,
Cir.2010),
not cite to (6th Cir.2009),
F.3d 419 which—as even
Maxwell concedes the outcome controls Johnson,
this case. a defendant con-
victed of conspiring crack co- had a
caine calculated Guidelines’ months, but he a mandatory minimum sentence of 240
months