PRECEDENTIAL

  IN THE UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 12-1118
                   _____________

          UNITED STATES OF AMERICA,

                          v.

                GLENN FLEMMING,
                 a/k/a Nasir Huggins

                GLENN FLEMMING,

                            Appellant
                   _____________

Appeal From Denial of Motion for Reduction of Sentence
       Entered in the United States District Court
        for the Eastern District of Pennsylvania
              (Crim. No. 2:03-00148-001)
       District Judge: Honorable Anita B. Brody
                    _____________

      Submitted Under Third Circuit LAR 34.1(a)
                  October 5, 2012
                  _____________

Before: FUENTES, FISHER and COWEN, Circuit Judges
               (Opinion Filed: July 22, 2013)



      Peter Levin, Esq.
      1927 Hamilton Street
      Philadelphia, PA 19130

      Counsel for Appellant

      Robert Zauzmer, Esq.
      Bernardette McKeon, Esq.
      Office of the United States Attorney
      Eastern District of Pennsylvania
      615 Chestnut Street, Suite 1250
      Philadelphia, PA 19106

      Counsel for Appellee


               OPINION OF THE COURT


FUENTES, Circuit Judge:

       We are again asked to determine whether a certain
category of defendants is eligible for a sentence reduction
under 18 U.S.C. § 3582(c), given the lowered crack-cocaine
guidelines issued by the Sentencing Commission under the
Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat.
2372 (2010). Specifically, we consider individuals who were
designated as career offenders under U.S.S.G. § 4B1.1 and




                              2
who were granted a downward departure from that
designation pursuant to § 4A1.3. We conclude that the
Guidelines‟ definition of “applicable guideline range,” see
U.S.S.G., app. C., amend. 759 (Nov. 1, 2011), makes clear
that such defendants are not eligible for resentencing. We
therefore affirm the District Court‟s denial of Appellant‟s
motion.

                              I.

A.    Flemming’s Original Sentencing

        Appellant Glenn Flemming‟s case is by now familiar
to this Court. See United States v. Flemming, 256 F. App‟x
453, 454-55 (3d Cir. 2007) (not precedential); United States
v. Flemming, 

, 254-55 (3d Cir. 2010)
(“Flemming II”). In brief, Flemming was convicted in 2004
of one count of possessing with intent to distribute crack
cocaine in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C), and
two firearm counts. Based on the offense levels for crack-
cocaine set forth in § 2D1.1 of the 2001 edition of the
Sentencing Guidelines—applicable to Flemming at the time
of his original sentencing—Flemming‟s Guidelines range was
calculated as 92 to 115 months‟ imprisonment.              See
Flemming 

. However, because Flemming
had two prior controlled substances convictions, he was
classified as a career offender under U.S.S.G. § 4B1.1(a).1

1
       Section 4B1.1(a) subjects a defendant to the career
offender designation if: “(1) [he] was at least eighteen years
old at the time [he] committed the instant offense of
conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance




                              3
This enhancement increased his offense level from 24 to 34
and his criminal history category from V to VI, for a
Guidelines range of 262 to 327 months.

       Flemming moved for a downward departure pursuant
to U.S.S.G. § 4A1.3, which in 2001 permitted a sentence
departing from the “otherwise applicable guideline range” if
the District Court found “reliable information . . . that the
criminal history category does not adequately reflect the
seriousness of the defendant‟s past criminal conduct or the
likelihood that the defendant will commit other crimes.”
U.S.S.G. § 4A1.3 (2001). The District Court granted the
motion and concluded that the proper Guidelines range was
calculated by returning to the range based on the crack-
cocaine offense levels, 92 to 115 months. Flemming 

-56. The Court then sentenced Flemming to 175
months in prison (115 months from the Guidelines range,
consecutive to a 60 month term for one of the firearm
convictions). We affirmed on direct appeal. Flemming, 256
F. App‟x at 455-58.

B.     First Resentencing And Instant Motion

      In 2007, the Sentencing Commission issued
Amendment 706, lowering by two the base offense levels for
most crack-cocaine offenses, and it later made that
amendment retroactive. See U.S.S.G. app. C, amend. 706
(Nov. 1, 2007); U.S.S.G. app. C., amend. 713 (May 1, 2008).
Flemming then moved for a reduction of sentence under 18


offense; and (3) [he] has at least two prior felony convictions
of either a crime of violence or a controlled substance
offense.”




                              4
U.S.C. § 3582(c)(2) on the basis of these amendments. As
explained below, we ultimately ruled that Flemming was
eligible for a reduction. See Flemming 

.
On remand, the District Court recalculated the Guidelines
range as 77 to 96 months based on the new crack-cocaine
tables and sentenced Flemming to 137 months in prison (77
months from the Guidelines range and a consecutive 60
month sentence for one of the firearm convictions).

       In 2010, the Sentencing Commission issued
Amendment 750 to the Guidelines, further lowering the base
offense levels for most crack-cocaine offenses by two, and,
subsequently, the Sentencing Commission also made that
amendment retroactive. See U.S.S.G. app. C, amend. 750
(Nov. 1, 2011); U.S.S.G. app. C., amend. 759 (Nov. 1, 2011).
Flemming then filed a second motion for a reduction of
sentence, which the District Court denied. This appeal
followed.

                             II.

       While district courts are generally prohibited from
“modify[ing] a term of imprisonment once it has been
imposed,” a defendant may be eligible for a reduction of
sentence if the sentence was “based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission” and if “a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c)(2); Flemming 

. If these
two requirements are met, it is in the sentencing court‟s
discretion whether to resentence. 

                             5
whether a reduction in cases like Flemming‟s is consistent
with the Commission‟s applicable policy statements.2

       The Sentencing Commission has stated that a
reduction in sentence pursuant to a retroactive amendment to
the Guidelines is not consistent with its policy statements
unless the amendment has “the effect of lowering the
defendant‟s applicable guideline range.”               U.S.S.G.
§ 1B1.10(a)(2)(B). Thus, the narrow question here is whether
amendments to the crack-cocaine guidelines, such as
Amendment 750, have the effect of lowering the “applicable
guideline range” of a defendant subject to the career offender
designation, but who received a downward departure under
§ 4A1.3. As they did in Flemming II, the parties seem to
agree that, if “applicable guideline range” refers to the range
calculated based on the enhancements provided by the career
offender designation, then Flemming is not eligible for
resentencing because Amendment 750 did not have the
“effect of lowering” that range. Conversely, if the phrase
refers to the range calculated pursuant to the crack-cocaine
offense level, after Flemming received a departure under
§ 4A1.3, then Flemming is eligible for resentencing because
Amendment 750 did have the effect of lowering that range.

       We confronted these arguments in Flemming II, and
we reiterate them here because they constitute the basis of
Flemming‟s instant motion. In Flemming II, given that the
Guidelines did not then define the term “applicable guideline
range,” Flemming urged us to look to the Guidelines‟

2
       The parties agree that the first part of this test is met
because Flemming‟s sentence was “based on” a sentencing
range that has been lowered. See Gov‟t Br. at 15.




                               6
Application Instructions, contained in § 1B1.1, for “guidance
in determining the point at which a defendant‟s „applicable
guideline range‟ is determined.” Flemming 

. As they do today, the Application Instructions in effect
at the time of Flemming II directed sentencing courts to
“apply the various provisions and chapters of the Guidelines
in a specific order.” 

at step 6
of the calculation, a sentencing court was required to
“[d]etermine the defendant‟s criminal history category as
specified in Part A of Chapter Four” and “[d]etermine from
Part B of Chapter Four any other applicable adjustments.”
U.S.S.G. § 1B1.1(f) (2001).3 We thus credited Flemming‟s
argument that because the downward departure of § 4A1.3 is
contained in Part A of Chapter Four, “one plausible reading
of the Application Instructions [is that] sentencing courts are
directed to apply § 4A1.3 departures at step [6].” Flemming

. Flemming was eligible for resentencing
under this line of reasoning because the “applicable guideline
range” is calculated after step 6 and therefore corresponds to
the crack-cocaine guideline calculated under § 2D1.1 and
lowered by Amendment 706.4 We nevertheless further noted

3
       At the time of Flemming II, the Application
Instructions‟ steps were designated as (a) through (h), but, on
November 1, 2010, they were re-designated as (1) through (8)
in order to “adopt[] the three-step approach followed by a
majority of circuits in determining the sentence to be
imposed.” U.S.S.G. app. C, amend. 741 (Nov. 1, 2010).
4
       At the time Flemming II was decided, the “implication
of our reasoning in Doe [was] that a defendant‟s „applicable
guideline range,‟ for purposes of § 1B1.10, has been set once
a court finishes applying step [8]” of § 1B1.1(a). Flemming




                              7
that the provisions of § 4A1.3 are also considered a “policy
statement” under the Guidelines and that the Application
Instructions direct sentencing courts to consider policy
statements only after the applicable guideline range
calculation has taken place, see U.S.S.G. § 1B1.1(b) (2010).
We reasoned that, therefore, Flemming was not eligible for
resentencing to the extent the instructions could be interpreted
to direct calculation of an “applicable guideline range” at step
8, based on the pre-§ 4A1.3 departure from the career
offender levels. After analyzing other relevant provisions of
the Guidelines, we concluded that the Guidelines as a whole
were “grievously ambiguous and uncertain as to whether
Flemming‟s applicable guideline range is his pre- or post-
§ 4A1.3 departure range,” and thus held that he was eligible
for resentencing based on the rule of lenity. Fleming 

(formatting and citation omitted).

        In this second motion for resentencing, Flemming
essentially reiterated the arguments he made in Flemming II.
The District Court, however, denied the motion, concluding
that the Commission‟s new definition of “applicable guideline
range,” added to the Guidelines by Amendment 759, makes
clear that it lacks authority to resentence defendants such as
Flemming under § 3582(c)(2). We now exercise plenary
review over that conclusion. See United States v. Savani, No.
11-4359, __ F.3d __, __, 

, *4 (3d Cir. June
10, 2013).5

(citing United States v. Doe, 

(3d Cir. 2009)).
5
      The district court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.




                               8
                             III.

        Although Flemming‟s argument would otherwise be
controlled by our holding in Flemming II, the new definition
of “applicable guideline range” supersedes our reading of the
Guidelines there and requires us to revisit that decision. See
Savani, 

, at *1, *5 (holding that the new
definition of “applicable guideline range” supersedes our
holding in 

). We now reconsider
Flemming II in light of Amendment 759.6

       “Applicable guideline range” is now defined as “the
guideline range that corresponds to the offense level and
criminal history category determined pursuant to § 1B1.1(a),
which is determined before consideration of any departure

6
        Since Amendment 759 was enacted, we have
considered the resentencing eligibility of defendants like
Flemming, but we have not had occasion to revisit Flemming
II in light of Amendment 759. In United States v. Ware, for
example, we assumed without deciding that Amendment
759‟s definition of “applicable guideline range” rendered
offenders such as Flemming ineligible for resentencing and
addressed only whether the Amendment is binding. 

, 531-32 (3d Cir. 2012). And in United States v. Barney,
we determined the effect of another amendment to the
Guidelines, Amendment 651, on the eligibility of prisoners in
Flemming‟s position, a question we left open in Flemming II.

(3d Cir. 2012). Barney does not dispose of
Flemming‟s case because in Flemming II we held that we
may not consider Amendment 651 for purposes of
determining Flemming‟s eligibility for resentencing. See
Flemming 

, 271 n.26.




                              9
provision in the Guidelines Manual or any variance.”
U.S.S.G. § 1B1.10 cmt. n. 1(A) (2011); see also U.S.S.G.
app. C., amend 759 (Nov. 1, 2011). We recently interpreted
this language in the context of prisoners subject to statutory
minimums but sentenced below that range pursuant to a
substantial assistance motion filed by the Government under
U.S.S.G. § 5K1.1. See Savani, 

, at *2. In
Savani, we concluded that we were unable to determine
whether the words “the guideline range that corresponds to
the offense level and criminal history category determined
pursuant to § 1B1.1(a)” refer to the calculation mandated at
step (7) of the Application Instructions, § 1B1.1(a)(7), or to
the calculation performed after including “all eight steps
delineated under § 1B1.1(a), including § 1B1.1(a)(8).” 

case involves a slightly different question. Whereas
in Savani we had to determine whether the “applicable
guideline range” is calculated at step (7) or step (8) of
§ 1B1.1(a), the question here is whether the § 4A1.3
departure is calculated at step (6) before the “applicable
guideline range” is determined at steps (7) or (8), or whether
it is calculated at § 1B1.1(b), entirely after the “applicable
guideline range” has been determined.

        The definition of “applicable guideline range” does not
on its face address whether a § 4A1.3 departure calculation is
properly understood as occurring at either step (6) or
§ 1B1.1(b). However, the definition does state that the
applicable guideline range is “determined before
consideration of any departure provision in the Guidelines
Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n. 1(A)
(2011) (emphasis added). This language makes clear that
regardless of when a § 4A1.3 departure is calculated, that
departure is ignored for purposes of determining the




                              10
“applicable guideline range.” Accordingly, the “applicable
guideline range” for a defendant like Flemming is the range
calculated pursuant to the career offender designation of
§ 4B1.1, and not the range calculated after applying any
departure or variance. Flemming‟s arguments that § 4A1.3
departures are somehow different simply ignore the
unequivocal rejection of the consideration of “any departure
provision” when determining the “applicable guideline
range.”

       In other words, under Flemming‟s view of the order in
which sentencing occurs for career offenders, a sentencing
court does three things at step (6) of § 1B1.1(a). First, the
court calculates the criminal history category under § 4A1.1;
second, it enhances the criminal history category and offense
level based on the career offender designation of § 4B1.1;
and, third, the court departs downward from that category
based on § 4A1.3. The court subsequently calculates a
Guidelines range under step (7).           To be sure, this
understanding of the manner in which sentencing occurs in
practice continues to be “plausible.” Flemming 

. The problem for Flemming is that, although a
sentencing court may calculate the guidelines range the
defendant is sentenced under after considering departures and
variances, the Guidelines now make clear that this final
determination of the defendant‟s range is not the “applicable
guideline range” that courts may consider in evaluating a
sentence reduction motion.7

7
      The difference between the defendants in Savani and
defendants like Flemming is inherent in the structure of the
Guidelines. For the former, the court determines a Guidelines
range at step (7) or (8) before it applies any departure,




                             11
        Our reading is further confirmed by the Commission‟s
stated reason for adding the new definition of applicable
guideline range: to “adopt[] the approach of [other] Circuits”
holding that career offenders granted § 4A1.3 departures are
not eligible for resentencing. U.S.S.G. app. C., amend. 759.
Flemming offers no persuasive argument to the contrary,
particularly given that most of his contentions are based on
pre-Amendment 759 cases or readings of the Guidelines. See,
e.g., Flemming Br. at 14 (citing United States v. Munn, 

(4th Cir. 2010)). Indeed, our holding is consistent
with that of the Second Circuit, which considered the exact
question presented here in light of Amendment 759. See
United States v. Steele, 

(2d Cir. 2013) (per
curiam) (relying on definition of “applicable guideline range”
to hold that defendants such as Flemming are not eligible for
resentencing).

                             IV.

      For the foregoing reasons, we will affirm the District
Court‟s order denying Flemming‟s motion for resentencing.




including § 5K1.1 departures. For the latter, by contrast, the
court is not mandated to calculate a Guidelines range until
after it has reached the career offender enhancement. See
Savani, 

, at *13 (Fuentes, J., concurring).




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