OPINION & ORDER [Resolving Doc. No. 42]

JAMES S. GWIN, District Judge.

In June 2004, this Court sentenced Defendant Kelo McPherson to 168 months' imprisonment for possessing cocaine base with an intent to distribute it.1 McPherson now moves for a reduction in that sentence, see 18 U.S.C. § 3582(c)(2); United Sentencing Guidelines Manual (USSG) § 1B1.10 (2011), pointing out that the Sentencing Commission, pursuant to the Fair Sentencing Act of 2010, has retroactively reduced the guidelines sentences for cocaine-base offenses. [Doc. 42.] The United States opposes the motion. [Doc. 45.] Because McPherson's requested reduction is not "consistent with applicable policy statements issued by the Sentencing Commission," 18 U.S.C. § 3582(c)(2), the Court denies McPherson's motion.

I.

The Court has some authority under 18 U.S.C. § 3582(c)(2) to reduce a previously imposed sentence. In particular, § 3582(c)(2) provides that

18 U.S.C. § 3582(c)(2). Accordingly, § 3582(c)(2) authorizes the Court to reduce McPherson's sentence only if (1) that sentence is "based on a sentencing range that has subsequently been lowered" and (2) "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id.

As an initial matter, the Court observes that McPherson's sentence may be "based on a sentencing range that has been subsequently lowered by the Sentencing Commission." Id. At McPherson's sentencing, the Court calculated a total offense level of 32, which, when combined with McPherson's criminal-history category of IV, yielded an offense-level-and-criminal-history guidelines range2 of 168 to 210 months' imprisonment. USSG § 1B1.1(7). But McPherson was also subject to a statutory minimum sentence of 240 months' imprisonment. Accordingly, the Court, pursuant to guidelines § 5G1.1(b), reset McPherson's guidelines "range" at the statutorily required minimum sentence—240 months' imprisonment. See USSG § 5G1.1(b) (2003) ("Where 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." (emphasis added)).3

Because McPherson provided substantial assistance to the government, however, the granted McPherson a downward departure below the statutory minimum. See USSG § 5K1.1; 18 U.S.C. § 3553(e). At this point, the Court returned to the 168- to 210-month offense-level-and-criminal-history guidelines range it had earlier computed and sentenced McPherson to 168 months' imprisonment. See [Doc. 36, at 6:8-17 ("The Court find[s] that the government's motion is well made to afford [McPherson] a 5K1.1 reduction. The Court sets the offense level at 32. . . . I find the total criminal history score is 8 and the criminal history category should be set at 4."); 8:12-19 ("Again, I found that the offense level should be set at 32 and the criminal history should be set at 4. Having made those findings, and pursuant to the Sentencing Reform Act of 1984, it is going to be the judgment of the Court that [McPherson] be committed to the custody of the Bureau of Prisons to be imprisoned for a term of 168 months on Count 1.").]

In some ways, then, McPherson's sentence is "based on" his offense-level-and-criminal-history guidelines range of 168 to 210 months' imprisonment. See Freeman v. United States, 131 S.Ct. 2685, 2692-93 (2011) (plurality opinion) ("[Section] 3582(c)(2) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence. . . ."); Freeman, 131 S. Ct. at 2700 (Sotomayor, J., concurring) ("To ask whether a particular term of imprisonment is "based on" a Guidelines sentencing range is to ask whether that range serves as the basis or foundation for the term of imprisonment. . . . [I]n applying § 3582(c)(2) a court must discern the foundation for the term of imprisonment imposed by the sentencing judge."). Cf. United States v. McPherson, 629 F.3d 609, 610-11 (6th Cir. 2011) ("The district court sentenced McPherson to a term of imprisonment of 168 months based on a total offense level of 32 and a criminal history category of IV. . . . Here, McPherson's sentence was not based on a guidelines range that was subsequently reduced. . . . [I]t was based on the 240-month minimum sentence mandated by statute.").

Moreover, McPherson's offense-level-and-criminal-history guidelines range has "subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). Compare USSG § 2D1.1 (2003) with USSG § 2D1.1 (2011). (Were the Court to recompute it today, McPherson would have a total offense level of only 28, which, when combined with his criminal-history category of IV, would advise 110 to 137 months' imprisonment.)

Nevertheless, the Court lacks authority to grant McPherson's requested reduction because such a reduction would not be "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). In particular, guidelines § 1B1.10(a)(2) provides that even in the case of a retroactive amendment to the guidelines, it "is not consistent with this policy statement" to reduce a defendant's term of imprisonment unless the amendment has "the effect of lowering the defendant's applicable guideline range." USSG § 1B1.10(a)(2) (emphasis added). "Applicable guideline range" is 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 provision in the Guidelines Manual or any variance." USSG § 1B1.10 cmt. n.1 (2011) (emphasis added). In other words, the Court determines the "applicable guideline range" from (1) a defendant's total offense level, (2) a defendant's criminal-history category, and (3) the adjustments set out in "Parts B through G of Chapter Five," § 1B1.1(a), including, of course, § 5G1.1(b). The "applicable guidelines range" does not, however, take into account any departure found in "Parts H and K of Chapter Five," § 1B1.1(b), including, of course, § 5K1.1.

Accordingly, were the Court to recompute McPherson's applicable guidelines range today, it would still be 240 months' imprisonment. Critically, the statutory minimum sentence for his cocaine-base offense has not been retroactively reduced. So even though McPherson's criminal-history category and now-reduced base offense level might yield a reduced offense-level-and-criminal-history range of 110 to 137 months' imprisonment, § 5G1.1(b) would, as it did before, reset McPherson's applicable guidelines range to the statutory minimum. Because McPherson's applicable guidelines range has not changed, a reduction in his sentence would be inconsistent with "applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). The Court therefore cannot oblige McPherson's request.

II.

For these reasons, the Court DENIES McPherson's motion.

IT IS SO ORDERED.