Lead Opinion
MOORE, J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, C.J. (pp. 269-72), delivered a separate opinion concurring in part and dissenting in part.
OPINION
Talif Hameed pleaded guilty to one count of conspiracy to possess with intent to distribute crack cocaine and one count of being a felon in possession of a firearm. Under § 2D1.1 of the U.S. Sentencing Guidelines (“U.S.S.G.”), which lists the base offense levels corresponding to the quantity of drugs attributable to a defendant, Hameed’s sentencing range would have been 78 to 97 months of imprisonment. Hameed also faced a statutory mandatory minimum of ten years, but the government filed substantial-assistance motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, allowing the district court to impose a sentence below the mandatory minimum. After granting these motions, the district court resorted to the guideline range applicable under § 2D1.1, granted a one-level departure therefrom, and sentenced Hameed to 70 months of imprisonment. Following two guidelines amendments that reduced advisory sentences for most crack offenses, Hameed moved for a reduction of his sentence under 18 U.S.C. § 3582(c)(2). The district court concluded that Hameed was ineligible for relief and denied the motion.
As explained below, we agree. A defendant is not eligible for a reduction of sentence under § 3582(c)(2) unless (1) his sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” § 3582(c)(2), and (2) the amendment on which he relies “ha[s] the effect of lowering the defendant’s applicable guideline range,” U.S.S.G § 1B1.10(a)(2)(B). See United States v. Pembrook,
Hameed and four other men sold crack out of two residences in Warren, Ohio from December 2003 through June 2004. A grand jury indicted Hameed on one count of conspiracy to possess with intent to distribute and to distribute crack cocaine, three counts of crack distribution based on separate $20 sales, two counts of possession with intent to distribute crack, and one count of being a felon in possession of a firearm. Pursuant to a nonbinding plea agreement, Hameed pleaded guilty to the conspiracy and firearm counts, and the government dismissed the other charges.
In the plea agreement, Hameed agreed to be held responsible for between twenty and thirty-five grams of crack. Under the then-applicable version of U.S.S.G. § 2D1.1 — which we shall refer to as the “crack guidelines” — that amount of crack resulted in a base offense level of 28. A two-level enhancement for the firearm and a three-level reduction for acceptance of responsibility lowered Hameed’s total offense level to 27. Based on a criminal-history category of II, his guideline range was 78 to 97 months. Because Hameed’s offense involved more than five grams of crack and he had previously been convicted of a drug felony, a mandatory minimum of ten years of imprisonment applied under 21 U.S.C. §§ 841(b)(1)(B), 851. Ha-meed avoided the statutory minimum, however, by rendering substantial assistance to the government in investigating or prosecuting others. The government filed motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, allowing the district court to impose a sentence below ten years. At the sentencing hearing on November 1, 2005, the district court granted the motions.
The sentencing transcript reveals that the district judge, the parties, and the probation officer disagreed about the point from which any departure should be granted. Consistent with the presentence investigation report, the plea agreement, and the parties’ expectations, the district judge began with the base offense level called for by § 2D1.1, level 28. The district judge added two levels for possession of a firearm, subtracted three levels for acceptance of responsibility, and subtracted an additional level for substantial assistance at the government’s recommendation, for a total offense level of 26. Calculating the resulting guideline range as 70 to 87 months, the district judge sentenced Hameed to 70 months in prison, 4 years of supervised release, a $500 fine, and a $200 special assessment.
On November 1, 2007, Amendment 706 to the sentencing guidelines went into effect, reducing the base offense level for most crack offenses by two levels. U.S.S.G. Supp. to App. C, amend. 706 (2009). On March 3, 2008, Amendment 713 made Amendment 706 retroactive. Id., amend. 713. Relying on those two amendments, Hameed moved for a modification of sentence under 18 U.S.C. § 3582(c)(2), which allows district judges to reduce sentences that were based on guidelines ranges later lowered by the U.S. Sentencing Commission. The government did not oppose. See Dist. Ct. Document (“Doc.”) 89 (Mot. for Sent. Reduction at 2). Nonetheless, the district judge denied the motion, concluding that Hameed was ineligible for § 3582 relief because his sentence was based on the mandatory minimum, not a sentencing range that had since been lowered. Ha-meed timely filed this appeal.
II. ANALYSIS
A. Standard of Review
Normally, we review a district court’s decision on whether to reduce a
B. Eligibility for a Reduction Under 18 U.S.C. § 3582
Generally, a district court may not modify a defendant’s sentence after imposing it. 18 U.S.C. § 3582(c). Federal law creates an exception to this general rule when the sentencing judge relied on the sentencing guidelines and those guidelines later are made more lenient:
[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), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
§ 3582(c)(2). In this case, there is a readily identifiable “sentencing range that has subsequently been lowered”: the range produced by the drug-quantity provisions for crack-cocaine offenses found in U.S.S.G. § 2D1.1. See U.S.S.G. Supp. to App. C, amend. 706. Section 3582(c)(2) makes plain, however, that to establish eligibility for a sentence reduction under Amendment 706, Hameed will have to make two further showings: (1) that his 70-month prison sentence was “based on” a sentencing range produced by reference to § 2D1.1, and (2) that a reduction would be “consistent with applicable policy statements issued by the Sentencing Commission.” We address each requirement below.
1. Whether Hameed’s Sentence Was “Based On” U.S.S.G. § 2D1.1
Hameed makes two arguments that his sentence was “based on” § 2D1.1. First, he finds it significant that the district judge calculated the guideline range under § 2D1.1 before applying the mandatory minimum. We have held in a related context, however, that a district judge’s mere calculation of the sentencing range under § 2D1.1 does not render a defendant’s sentence “based on” the crack guidelines range if that range is subsequently trumped by another provision of the guidelines. See United States v. Gillis,
Second, Hameed argues that his sentence was “based on” the § 2D1.1 guideline range because the district court in fact relied on that range in selecting a sentence after calculating the mandatory minimum. In a limited set of situations, the district judge will not be bound by the mandatory minimum. One such situation
Though in prior cases we have deemed defendants sentenced under enhanced sentencing provisions (specifically, a mandatory minimum or the career-offender guidelines) ineligible for § 3582(c)(2) relief because their sentences were not “based on” subsequently lowered sentencing ranges, none of those cases foreclose Ha-meed’s “based on” argument. All involved defendants who did not receive a departure from a mandatory minimum or the career-offender guidelines, who received a departure to a final sentence unrelated to the crack guidelines range, or who received a departure to a final sentence that happened to fall in the crack guidelines range but was not motivated by that range.
In Gillis and United States v. Alexander,
In United, States v. Johnson,
Hameed’s case is readily distinguished from each of these cases.
Unlike in the cases we have previously considered, it cannot be said here that the
We find support for this commonsense conclusion in decisions involving the career-offender guidelines from four of our sister circuits. In United States v. Williams,
In United States v. Moore,
Most recently, in United States v. Cardosa,
To recapitulate, it is beyond peradventure that the district judge in this case actually relied on the crack guidelines in selecting a final sentence for Hameed after granting the government’s substantial-assistance motions. Under these circumstances, we have no difficulty concluding that Hameed’s ultimate sentence was “based on” a range dictated by § 2D1.1, “a
2. Whether a Reduction Would Be Consistent with the Sentencing Commission’s Policy Statements
Although we conclude that Ha-meed’s sentence was “based on” a subsequently lowered sentencing range, he is not eligible for a reduction of sentence unless “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Hameed seeks to avoid this requirement altogether. He objects that the policy statements and the guidelines in their entirety are only advisory. To be sure, district judges are free to disagree with the guidelines on policy grounds and to vary based on the factors listed in 18 U.S.C. § 3553(a) when imposing an original sentence. Spears v. United States, — U.S.-,
One such policy statement provides:
A reduction in the defendant’s term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if—
(A) none of the amendments listed in subsection (c) is applicable to the defendant; or
(B) an amendment listed in subsection (c) does not have the effect of lowering the defendant’s applicable guideline range.
U.S.S.G. § 1B1.10(a)(2). Amendment 706 is among those listed in subsection (c). The issue, then, is whether Amendment 706 lowered Hameed’s applicable guideline range.
Amendment 706’s impact is well understood, so our inquiry focuses on the question, what is Hameed’s “applicable guideline range”? Had no mandatory minimum applied, the applicable guideline range would have been that provided by the drug-quantity guidelines under § 2D1.1, which Amendment 706 lowered. Hameed did face a mandatory minimum, however, and the government essentially argues that the mandatory minimum, which Amendment 706 did not affect, became his applicable guideline range. See Appellee’s Br. at 9-10. Presumably, the government relies on U.S.S.G. § 5Gl.l(b), which provides that “[w]here 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.”
First, § 5G1.1 reasonably may be construed to support the meaning of “guideline range” advanced by Jones. On this view, § 5G1.1 refers to two distinct concepts: the “applicable guideline range” and the “guideline sentence.” The applicable “guideline range” is determined by the sentencing court based on the defendant’s offense level and criminal history. When the statutory-minimum sentence is greater than the top of the guideline range calculated by the sentencing court, the statutory minimum effectively trumps the guideline range and becomes the “guideline sentence.” U.S.S.G. § 5G1.1(b). Thus, § 5Gl.l(b) contemplates a two-step process: first, the sentencing court must calculate the applicable guideline range; next, the sentencing court must determine whether the statutory minimum exceeds the top of the properly calculated guideline range. If the statutory minimum is greater than the top of the guideline range, the statutory minimum becomes the guideline sentence. On this reading of § 5G1.1(b), the guideline range does not become equivalent to, or merge into, the statutory minimum/guideline sentence.
The dissent offers another reasonable reading of § 5G1.1. In the dissent’s view, when there is a mandatory minimum that is above the guideline range calculated by the sentencing court, that mandatory minimum, though a single point, becomes the ‘guideline range.’
Id. at 572. Elsewhere, we have stated that “[w]here a mandatory minimum sentence exceeds the otherwise applicable Guidelines range ... it replaces that Guidelines range.” Johnson,
Ultimately, we need not resolve once and for all whether a mandatory minimum is a guideline “range” or whether it is always the only range that may be considered for the purposes of § 1B1.10(a)(2)(B). Hameed’s claim fails for another reason: though § 2D1.1 surely provided a “guideline range,” it did not provide one that was “applicable” to a departure for substantial assistance under § 3553(e) and § 5K1.1 in Hameed’s case.
In United States v. Stewart,
Nor were the crack guidelines “applicable” in determining the extent of the departure Hameed received. In United States v. Bullard,
We therefore conclude that even though Amendment 706 lowered the sentencing range that the district judge calculated under § 2D1.1 in Hameed’s case, Amendment 706 did not lower an “applicable” guideline range as required by U.S.S.G. § 1B1.10(a)(2)(B). Thus, a sentence reduction would not be “consistent with applicable policy statements issued by the Sentencing Commission” and is unavailable under 18 U.S.C. § 3582(c)(2).
III. CONCLUSION
To be eligible for a reduction of sentence under 18 U.S.C. § 3582(c)(2), a defendant must satisfy two conditions. First, he must have been sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” § 3582(c)(2). Second, a reduction must be “consistent with applicable policy statements issued by the Sentencing Commission,” id., one of which provides that a guidelines amendment must “have the effect of lowering the defendant’s applicable guideline range,” U.S.S.G. § 1B1.10(a)(2)(B). Hameed can satisfy only one of the two conditions. His ultimate sentence was indeed “based on” the crack guidelines, and those guidelines have since been lowered, but they were not actually “applicable” to the departure he received pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. For that reason, the district judge correctly deemed Hameed ineligible for a sentence reduction under § 3582(c)(2). We therefore AFFIRM.
Notes
. One recent case presented a set of facts similar to those involved here. In United States v. Pembrook,
. This inquiry does not confine us to the explicit statements made by the district court in pronouncing its sentence, notwithstanding the dissent's endorsement of such a limitation. It may be sufficiently clear that a district court used the crack guidelines to select a final sentence even though it did not say so — for example, when an attorney argued for such an approach and the court acted in accordance with it.
. Three cases have read the "based on” requirement differently. In United States v. Hood,
We agree that the crack guidelines generally will not guide a district judge in selecting a departure for substantial assistance. But this premise does not change the fact that the district judge in Hood (and the hypothetical district judge discussed in Carter) in fact "based” the defendant's sentence "on” the crack guidelines. We see no reason to indulge any fiction to the contrary, or to hold that "based on” means one thing in mandatory-minimum cases and something entirely different in career-offender cases, as the dissent would have us do. There is, after all, no textual basis in § 3582(c)(2) for either course. The irrelevance of the crack guidelines to a substantial-assistance departure should not tempt us to rip the technical meaning of "based on” from the plain meaning of its component words; instead, it leads to a different conclusion also faithful to the text of a governing provision: that the crack guidelines were not “applicable.” U.S.S.G. § IB 1.10(a)(2)(B).
In United States v. Darton,
. We can imagine situations in which the crack guidelines would be relevant — for example, if a district judge considers the otherwise-applicable crack guidelines under § 3553(a) in deciding to award a smaller downward departure than would be warranted by the defendant’s substantial assistance.
Concurrence Opinion
concurring in part and dissenting in part.
I agree that Talif Hameed is not eligible for a reduction of sentence under 18 U.S.C. § 3582(c)(2). I disagree, however, with the majority’s conclusion that Ha-meed’s sentence was “based on” U.S.S.G. § 2D1.1. I also disagree with the majority’s dicta regarding whether or not the statutory minimum is the only “applicable guideline range” for purposes of U.S.S.G. § 1B1.10(a)(2)(B). I therefore concur in part and dissent in part.
The majority’s analysis of the “based on” prong of the test for eligibility for reduction of sentence does not take proper account of the key differences between a departure from a career offender guideline sentence and a departure from a statutory minimum sentence, namely, that a district court has very limited authority to sentence below that minimum, and that a departure from a statutory minimum is not the removal of that minimum. In United States v. Pembrook,
In Pembrook, however, the defendant was sentenced under the career offender guidelines, not under a statutory minimum. Id. at 382-83. When considering a case involving the career offender guidelines it makes sense to follow the kind of fact-based analysis adopted by the majority because those guidelines are not mandatory — the district court may reject them for appropriate reasons and substitute the crack guidelines instead. See United States v. Herrera-Zuniga,
Statutory minimum sentences, however, are mandatory, and the district court may not sentence below a statutory minimum except as permitted under 18 U.S.C. §§ 3553(e) or 3553(f). Melendez v. United States,
“ ‘Where a statutorily required minimum sentence is greater than the maximum of the applicable guidelines range, the statutorily required minimum sentence shall be the guideline sentence.’ ” United States v. Johnson,
This approach also finds support in Judge Niemeyer’s well-reasoned opinion for the Fourth Circuit in United States v. Hood,
were legally insignificant for purposes of the analysis under § 3582(c)(2).... [Defendant’s] sentence was based on a statutory minimum fixed by 21 U.S.C. § 841(b)(1)(A), from which the district court departed downward as authorized by 18 U.S.C. § 3553(e) for [Defendant’s] substantial assistance, not on any “applicable guideline range” lowered by Amendment 706. No guideline range was applicable, and Amendment 706 did not purport to reduce any factors that the district court was authorized to consider in quantifying a downward departure under § 3553(e).
Id. (emphasis added). As the court succinctly put it, “§ 3553(e) allows for a departure from, not the removal of, a statutorily required minimum sentence.” Id. at 236 (internal quotation marks and citation omitted). This approach has been directly followed in the Fifth Circuit, with similar holdings in the Eighth and Eleventh as well. See United States v. Carter,
Therefore, I would hold that when a statutory minimum applies, what the district court said is irrelevant for the purposes of § 3582(c)(2), and that this sentence was “based on” the statutory minimum and not the crack guideline range.
I also write separately to emphasize the limited (limited, indeed, to a vanishing point) reach of the majority’s approach to the “based on” prong. I read the majority’s “based on” analysis as limited to those cases where the district court explicitly relies on the crack guidelines as a substitute for the statutory minimum.
[I)n United States v. Pembrook, this Court held that “the term ‘applicable guideline range’ in U.S.S.G. § 1B1.10 refers to a defendant’s pre-departure guideline range.” Binding precedent compels the conclusion that [defendant’s] mandatory minimum, rather than the crack-cocaine guidelines range, constituted [defendant’s] pre-departure “applicable guidelines range” for the purposes of § 1B1.10. Accordingly, Amendment 706 did not “have the effect of lowering [defendant’s] applicable guidelines range,” as § 1B1.10 requires, and the district court lacked the authority to resentence [defendant].
Finally, I briefly note my disagreement with the majority’s dicta regarding whether the statutory minimum “is a guideline ‘range’ or whether it is always the only range that may be considered for the purposes of § 1B1.10(a)(2)(B).” I regard those questions to be sufficiently answered by Johnson and numerous other opinions. See Johnson,
Accordingly, I concur in finding that Ha-meed was not eligible for a sentence reduction under § 3582(c)(2), but dissent in part because I find that his sentence was not “based on” the crack guidelines.
. As I read Moore, the court did not "indicate[ ] that a sentence would be 'based on' the crack guidelines if a court 'reduced the defendants' offense levels to those that would be in effect absent the career offender guideline.’ ” Maj. Op. at 265 (quoting Moore,
. No one suggests that § 3553(f) applies in this case.
. The majority states that after the district court granted the government's motion for a departure from the statutory minimum under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, it "resorted to the guideline range under § 2D1.1.” While this is not incorrect as far as it goes, it does not tell the whole story. At the sentencing hearing, after a lengthy discussion of the appropriate method of calculation, the probation officer explained that the appropriale level was 28. This was derived, correctly, by taking the first level to include the statutory minimum of 120 months (here offense level 29, criminal history category II), then subtracting a level for substantial assistance under §§ 3553(e) and 5K1.1. [R. 101 (Sentencing Transcript) at 8.] The district court agreed, but stated that he would adhere to his policy of “sentencing] in accordance with the stipulations in the plea agreement.” He fur