Thе government appeals the district court’s grant of Demetri Williams’s motion for a reduced sentence pursuant to 18 U.S.C. § 3582. The district court determined that Williams was entitled to a reduction based on his original guidelines range being lowered by Amendment 706 to the United States Sentencing Guidelines, even though his statutory mandatory minimum was unaffected by the amendment. For the reasons that follow, we REVERSE and REMAND.
I. BACKGROUND
In April 2007, Williams pled guilty to the distribution of more than five grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(l)(B)(iii) and 18 U.S.C. § 2. This offense, in light of Williams’s criminal history, made him subject to a sentencing range of 92-115 months under the guidelines. However, Williams had two prior felony drug convictions and thus fell under the ambit of 21 U.S.C. § 841(b)(1)(B)(iii), which imposes a mandatory minimum sentence of 120 months for such offenders. At his sentencing hearing, the district court agreed that the applicable range was 120 months but granted a downward departure from that sentence based on the government’s § 5K1.1 substantial assistance motion and pursuant to 18 U.S.C. § 3553(e). Williams thus was sentenced to sixty months of imprisonment and eight years of supervised release. See Rl-28 at 2-3.
In March 2008, the district court gave nоtice to Williams and the government that it was considering, on its own motion, reducing Williams’s sentence to fifty months based on Amendment 706, which lowered the base offense level applicable to crack cocaine offenses. 1 See U.S.S.G. App. C., Amend. 706 (Nov.2007); Rl-30. Williams responded to this notice by filing a motion to reduce his sentence pursuant to 18 U.S.C. § 3582, indicating that the § 5K1.1 motion had “eliminated the mandatory minimum at the time of sentencing” and made him eligible for the reduction under Amendment 706. Rl-31. He requested that his sentenced be lowered to fifty to fifty-one months, a figure proportionate to the degree by which Amendment 706 had reduced the guideline range for crack offenses. 2 See id. The government objected to the motion, arguing that Williams’s original sentencing range was displaced by the statutory minimum, thus making him ineligible for the Amendment 706 reduction. See Rl-33. The district court granted Williams’s motion and reduced his sentence to fifty months. See Rl-35. The government timely filed a notice of appeal. See Rl-36.
II. DISCUSSION
“We review a district court’s decision whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing guidelines, for abuse of discretion.”
United States v. Brown,
As a general rule, district courts may not modify a term of imprisonment once it has been imposed, except in specific circumstances delineated in 18 U.S.C. § 3582(c). One such exception is for a “dеfendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In such a case, “the court may reduce the term of imprisonment, after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id.
Amendment 706 allows a defendant to seek a reduction in his sentence if that sentence was based on the § 2D1.1 offense level for crack cocaine offenses.
See
U.S.S.G. App. C., Amend. 706. According to the Commission, a court’s decision to reduce a term of imprisonment based on Amendment 706 would be inconsistent with its policy statements if that amendment did “not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § lB1.10(a)(2)(B) (Supp. Mar. 3, 2008). Accordingly, we have held that a defendant whose original sentencing range was based on something other than § 2D1.1 is precluded from receiving a sentence reduction, since the amеndment would not lower his applicable guidelines range.
See United States v. Moore,
We therefore must determine whether the district court’s granting of the § 5K1.1 motion effectively waived the statutory mandatory minimum and thus entitled him to a sentence reduction under Amendment 706. We have previously found that “[wjhere a retrospectively applicable guideline amendment reduces a defendant’s base offense level, but does not alter the sentencing range upon which his or her sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.”
Moore,
There seems to be little operative difference between § 4B1.1 and the minimum sentence requirements under 21 U.S.C.
*1340
§ 841(b)(l)(B)(iii) for repeat felony drug offenders like Williams. In both instances, a defendant who falls under thе provision could have a guideline sentence that would be longer than he would normally receive for solely that individual offense. In such situations, the statutorily required minimum sentence effectively displaces the shorter sentence and becomes the guideline sentence for that individual.
See
U.S.S.G. § 5Gl.l(b). The defendant’s resulting sentence would thus be based on this new guideline sentence, rather than on the sentencing range for the original offense, and any changes in the range for the original offense would not affect it. Any downward departurе would thereby be from the mandatory minimum rather than from the base offense level.
See United States v. Aponte,
We came to a similar conclusion in
United States v. Pope,
Despite these precedents, Williams argues that his “guideline sentence” of 120 months should be viewed as separate and distinct from his “guideline range” of 92-115 months and that the § 5K1.1 motion effectively waived his “guideline sentence” without affecting his “guideline range.” 4 Since Amendment 706 would thereby reducе his “guideline range,” the district court thus was permitted to reassess his sentence. Williams also asserts that the Commission intended to permit individuals in his situation to take advantage of Amendment 706, as evidenced by the deliberate reference to lowering of the “guideline rangе” in U.S.S.G. § 1B1.10(a)(1). In support of this interpretation, he references a study by Commission staff, which indicated that individuals who received a substantial assistance reduction from a mandatory minimum would be eligible for further reductions under Amendment 706. See Glenn Schmitt et ah, Analysis of the Impact of the Crack Cocaine Amendment If Made Retroactive 5-6, 6 n. 20 (2007), http://www. usse.gov/generaI/Impact_Analysis_ 20071003_3b.pdf.
We find Williams’s attempted range/sentence distinction linguistically interesting but ultimately unpersuasive. The term “guideline range” reflects the scope of sentences availаble to the district court, which could be limited by a statutorily imposed mandatory minimum “guideline sentence.”
*1341
Accordingly, when a mandatory minimum exceeds some portion of the range for the base offense level, the applicable “guideline range” would be from thаt minimum to the upper end of the original guideline range.
See Pope,
Further, we believe that a downward departure from this mandatory minimum does not constitute a waiver or dispensing of this new “guideline range.” Section § 3553(e) permits district courts to impose a sentence below a statutory minimum based on the filing of a substantial assistance motion.
5
We see no indication in the statute that this decreased sentence should be read to somehow eliminate the otherwise applicable mandatory minimum. As noted by the Fourth Circuit, “the plain language of the statute makes clear [that] § 3553(e) allows for a departure from, not the removal of, a statutorily required minimum sentence.”
United States v. Pillow,
Finally, we note that the Commission appears to have rejected Williams’s interpretation. The application notes to § 1B1.10 indicate that the guidelines range for a defendant subject to a statutory minimum would not be lowered by an amendment, even if the amendment would otherwise be applicable to the defendant.
See
U.S.S.G. § 1B1.10 cmt. n. 1(A). Since we must treat such commentary as binding, this conclusion would trump any contrary statements in the Commission staff report cited by Williams.
See Stinson v. United States,
III. CONCLUSION
On appeal, the government argues that Williams was precluded from receiving a sentence reduction under Amendment 706. Because Williams was subject to a statutory mandatory minimum that replaced his original sentencing guideline rаnge, he was not sentenced according to the base offense level in § 2D1.1, even taking into account the § 5K1.1 downward departure. He thus would not fall within the scope of Amendment 706. Accordingly, we REVERSE the district court’s reduction of Williams’s sentence and REMAND for reinstatemеnt of his original sentence of sixty months.
REVERSED AND REMANDED.
Notes
. The Sentencing Commission made Amendment 706 retroactively applicable, effective 3 March 2008. See U.S.S.G. App. C, Amend. 713 (Supp. Mar. 3, 2008).
. Amendment 706 would have reduced the guideline range for an offense like his from 92-115 months to 77-96 months. See id. at 2. This represented a 16% reduction if the averages of these two ranges were compared. See id. Applying this 16% figure to Williams’s sixty-month sentence would yield a total of 50.4 months. See id. at 2-3.
. The
Moore
court indicated that the situation would be different if the district court had granted a downward departure for other reasons, such as a detеrmination that treating the defendant as a career offender would be out of proportion to the severity of his criminal history.
See Moore,
. In making this argument, Williams concedes that there is no effective difference between the terms “guideline range,” “guidelines range,” and “sentencing range.” We will thus use "guideline range” to connote all three.
. The statute states:
Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendаnt's substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.
18 U.S.C. § 3553(e) (2000).