In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 13-2978
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,

                                v.

KEVYN TAYLOR,
                                              Defendant-Appellant.
                    ____________________

        Appeal from the United States District Court for the
                   Southern District of Illinois.
         No. 3:08-CR-30061-JPG — J. Phil Gilbert, Judge.
                    ____________________

 ARGUED DECEMBER 17, 2014 — DECIDED FEBRUARY 11, 2015
                    ____________________

   Before WILLIAMS, SYKES, and HAMILTON, Circuit Judges.
    HAMILTON, Circuit Judge. Kevyn Taylor filed a motion
under 18 U.S.C. § 3582(c)(2) seeking a reduced sentence on
his convictions for drug trafficking. He argued that his im-
prisonment range under the United States Sentencing
Guidelines had been lowered by retroactive Amend-
ment 750, which, among other changes, made permanent the
reduction to the amount of marijuana deemed equivalent to
one gram of crack cocaine for purposes of determining of-
2                                                 No. 13-2978

fense levels in drug cases involving more than one drug. The
district court concluded that Taylor’s sentencing range had
not been lowered and that the court therefore lacked subject-
matter jurisdiction over his motion. We agree with the dis-
trict court that Taylor’s motion lacks merit, but we take this
occasion to clarify that § 3582(c)(2) does not limit a district
court’s subject-matter jurisdiction to consider a motion
brought under that statute, even a motion that the court
would not be authorized to grant. The denial of Taylor’s mo-
tion is affirmed on the merits.
I. Factual and Procedural Background
    A jury found Taylor guilty in 2009 of conspiring to dis-
tribute crack, possessing and distributing powder cocaine,
possessing a firearm as a felon, and possessing a firearm in
furtherance of a drug-trafficking crime. All of the offenses
were committed in 2005 and 2006. At sentencing the district
court found that Taylor was responsible for 837 grams of
crack and 396 grams of powder cocaine. The court also in-
cluded as relevant conduct Taylor’s responsibility for 227
kilograms of marijuana.
    Because more than one drug was involved, Taylor’s base
offense level was calculated by converting the crack and
powder cocaine quantities to their “marijuana equivalent.”
See U.S.S.G. § 2D1.1 cmt. n.8(B)–(D) (2013); United States v.
Brazelton, 

, 753 (7th Cir. 2009); United States v.
Bothun, 

, 585 (7th Cir. 2005). Under the 2008
Guidelines in effect when Taylor was sentenced, the crack
and powder cocaine plus the 227 kilograms of marijuana
were together equivalent to 17,046 kilograms of marijuana.
That amount corresponded to an offense level of 36 in the
Drug Quantity Table. See U.S.S.G. § 2D1.1(c)(2) (2008).
No. 13-2978                                                   3

    At that time, however, Application Note 10(D) to § 2D1.1
provided for a two-level reduction if a drug offense involved
both crack cocaine and another controlled substance.
See § 2D1.1 cmt. n.10(D) (2008); United States v. Chess, 

, 968 (7th Cir. 2010). Taylor’s base offense level thus
was set at 34. Two levels were added for obstructing justice
under § 3C1.1. With Taylor’s criminal history category of I, a
total offense level of 36 yielded an imprisonment range for
the drug counts of 188 to 235 months. The district court sen-
tenced Taylor to concurrent terms of 180 months for those
crimes. The court also imposed a concurrent term of 120
months for possessing a firearm as a felon, as well as a man-
datory consecutive sentence of 60 months for possessing that
gun in furtherance of a drug crime. On direct appeal we af-
firmed Taylor’s convictions and the total sentence of 240
months. United States v. Taylor, 

(7th Cir. 2011).
   In 2013 Taylor filed the § 3582(c)(2) motion at issue in this
appeal. He asserted that Amendment 750, which made per-
manent and retroactive the temporary changes in Amend-
ment 748, had reduced his base offense level from 34 to 32.
    The Sentencing Commission adopted Amendments 748
and 750 to implement the Fair Sentencing Act of 2010, Pub.
L. No. 111-220, 124 Stat. 2372. As relevant to offenses involv-
ing more than one kind of drug, Amendment 748 reduced
the marijuana equivalent of one gram of crack cocaine from
20 kilograms to 3,571 grams. The problem for Taylor’s mo-
tion is that the same amendment also revised the commen-
tary to § 2D1.1 by striking Application Note 10(D) and thus
eliminating the two-level decrease he had received for mul-
tiple-drug cases involving crack cocaine. See U.S.S.G. app.
C., amend. 748, pp. 377, 382; see also United States v. Robin-
4                                                   No. 13-2978

son, 

, 444 (7th Cir. 2012) (explaining effect of
Amendments 748 and 750).
    The district court found that the imprisonment range for
Taylor’s drug crimes had not been lowered. The court ex-
plained that Application Note 10(D) had been deleted so that
the 2012 version of § 2D1.1 no longer provided a two-level
reduction in setting the base offense level for cases involving
crack cocaine and another drug. Taylor’s final offense level
remained 36 even under Amendment 750. The court did not
deny Taylor’s motion on the merits but dismissed it for lack
of subject-matter jurisdiction, citing United States v. Lawrence,

, 637–38 (7th Cir. 2008), and United States v. For-
man, 

, 588 (7th Cir. 2009), which both treat eligi-
bility for relief under § 3582(c)(2) as an issue of subject-
matter jurisdiction.
II. Analysis
    A. Subject-Matter Jurisdiction
    Two separate and conflicting lines of cases have emerged
in this circuit regarding whether a district court has subject-
matter jurisdiction to decide a § 3582(c)(2) motion on the
merits even if the court has concluded that it lacks authority
to grant the motion.
    In the line of cases cited by the district court, we have
loosely but incorrectly described as a lack of “jurisdiction”
those situations where the statutory criteria for a sentence
reduction under § 3582(c)(2) have not been satisfied. See
United States v. Irons, 

, 1189 (7th Cir. 2013);
United States v. Davis, 

, 610 (7th Cir. 2012); United
States v. Woods, 

, 536 (7th Cir. 2009); United States
v. Forman, 

, 588 (7th Cir. 2009); United States v.
No. 13-2978                                                   5

Poole, 

, 678–79 (7th Cir. 2008); United States v.
Lawrence, 

, 638 (7th Cir. 2008); United States v.
Smith, 

, (7th Cir. 2006) (describing § 3582(c)(2) as
“a real ‘jurisdictional’ rule rather than a case-processing re-
quirement”).
    In the other line of cases, however, we have treated the
statutory criteria of § 3582(c)(2) as non-jurisdictional. In
United States v. Beard, 

, 291–92 (7th Cir. 2014), we
explained that § 3582(c)(2)’s statutory criteria create a “non-
jurisdictional case processing rule” that does not deny dis-
trict courts subject-matter jurisdiction to evaluate and deny
repeat 

. That description applies
equally to any § 3582(c)(2) motion. And in an opinion in-
volving a different Mr. Taylor, we said explicitly that a dis-
trict court has subject-matter jurisdiction to deny a
§ 3582(c)(2) motion even if the inmate is statutorily ineligi-
ble. United States v. Taylor, 

, 675–76 (7th Cir.
2010).
     While the difference will rarely have much practical sig-
nificance, we take this opportunity to resolve the conflicting
case law and to clarify that district courts have subject-
matter jurisdiction over—that is, the power to adjudicate—a
§ 3582(c)(2) motion even when authority to grant a motion is
absent because the statutory criteria are not met. See general-
ly United States v. Cotton, 

, 629–31 (2002) (defin-
ing subject-matter jurisdiction as the constitutional or statu-
tory power to adjudicate a matter); United States v. Ceballos,

, 690–92 (7th Cir. 2002) (explaining that “judges
and legislators sometimes use the term jurisdiction to erro-
neously refer to a court’s authority to issue a specific type of
6                                                   No. 13-2978

remedy, rather than to the court’s subject-matter jurisdic-
tion”).
    Our clarification here comports with 

–92, and 

–76, as well as decisions
from other circuits that distinguish between subject-matter
jurisdiction to decide a § 3582(c)(2) motion and a defendant’s
eligibility for relief. See United States v. Anderson, 

, 666-68 (11th Cir. 2014); United States v. Johnson, 

, 116 n.11 (2d Cir. 2013); United States v. Moore, 

, 1326–27 (11th Cir. 2008). The D.C. Circuit has tentative-
ly signaled its agreement. United States v. Smith, 

,
788 (D.C. Cir. 2006) (Supreme Court’s holding that time lim-
its on post-trial motions were not jurisdictional calls into
question a jurisdictional reading of § 3582), citing Eberhart v.
United States, 

(2005).
    Still other circuits, however, have seen the issue in juris-
dictional terms. See United States v. Graham, 

,
1279 (10th Cir. 2013) (concluding that § 3582(c)(2) motion
should have been dismissed for lack of subject-matter juris-
diction because defendant was ineligible for reduced sen-
tence); United States v. Austin, 

, 930 (9th Cir.
2012) (stating that district court “lacked jurisdiction” to re-
duce sentence when statutory criteria of § 3582(c)(2) were
not satisfied); United States v. Williams, 

, 1125–
26 (6th Cir. 2010) (citing our decision in 

, as support for treating limits of § 3582(c)(2) as jurisdic-
tional); United States v. Garcia, 

, 212 n.5 (5th Cir.
2010); United States v. Auman, 

, 1271 (8th Cir.
1993).
   The practical differences between our lines of cases are
minimal. The most likely situation in which the jurisdictional
No. 13-2978                                                    7

line would make a difference would be a case where a dis-
trict court granted relief under § 3582(c)(2) and the govern-
ment asserted on appeal an apparently winning argument it
had not made in the district court. If the issue were truly ju-
risdictional, it could not be waived.
    Whether a limit on a court’s power is truly jurisdictional
is ultimately up to Congress. In a series of cases over the last
dozen years, the Supreme Court has taken new care to dis-
tinguish between truly (i.e., non-waivable) jurisdictional
rules and ordinary case-processing rules that may be manda-
tory and even strict, but which a court need not raise on its
own. The general rule that has emerged is that “when Con-
gress does not rank a statutory limitation on coverage as ju-
risdictional, courts should treat the restriction as nonjurisdic-
tional in character.” Arbaugh v. Y&H Corp., 

, 516
(2006). Several signals persuade us that the limits on
§ 3582(c)(2) relief are not jurisdictional.
    First, § 3582 is not part of a jurisdictional portion of the
criminal code but part of the chapter dealing generally with
sentences of imprisonment. The section sets forth factors to
consider when imposing a prison sentence and provides that
a prison sentence is final and appealable. Nor is subsection
(c) phrased in jurisdictional terms. It begins: “The court may
not modify a term of imprisonment once it has been im-
posed,” with exceptions then specified. Since Congress has
not framed the issue in terms of jurisdiction, the statutory
indicators point against jurisdictional treatment.
    We also have a cue from the Supreme Court, which has
not addressed this precise question but has decided the
reach of § 3582(c)(2) without referring to the statute’s limits
as jurisdictional. In Freeman v. United States, 

8                                                             No. 13-2978

(2011), the Court considered whether § 3582(c)(2) was avail-
able to a defendant who had entered a binding plea agree-
ment under Federal Rule of Criminal Procedure 11(c)(1)(C).
All of the Justices—whether or not they joined the Court’s
judgment—addressed the issue in terms of whether Freeman
was statutorily eligible for a sentence reduction, not whether
the district court had subject-matter jurisdiction to decide his
motion. See 

–93 (plurality opin-
ion); 

(Sotomayor, J., concurring); 

(Roberts, C.J., dissenting). Freeman was decided after the Su-
preme Court’s recent stream of cases that try to be more
careful about which rules are truly jurisdictional. E.g., Gonza-
lez v. Thaler, 

, 648-49 (2012); Reed Elsevier, Inc. v.
Muchnick, 

, 160–62 (2010); Arbaugh v. Y&H Corp.,

(2006); Kontrick v. Ryan, 

, 455 (2004).
Accordingly, we do not view the silence about jurisdiction in
Freeman as merely a “drive-by” jurisdictional ruling entitled
to little or no weight. Cf. Steel Co. v. Citizens for a Better Envi-
ronment, 

, 91 (1998).
   We conclude that the better view is stated in Beard and
Taylor and that a district court has subject-matter jurisdiction
to consider a motion for relief under 18 U.S.C. § 3582(c)(2)
regardless of whether the moving defendant is actually eli-
gible for such discretionary relief. 1




    1 Because this opinion overrules several circuit precedents that have
treated the scope of § 3582(c)(2) as affecting district courts’ subject-matter
jurisdiction, we have circulated this opinion to the court under Circuit
Rule 40(e). No judge favored hearing this case en banc.
No. 13-2978                                                  9



   B. The Merits
   The district court had subject-matter jurisdiction, but that
does not help Taylor. The problem is that the net effect of
Amendment 750 on Taylor’s guideline range was zero.
While the amendment lowered the marijuana equivalent for
crack, it also removed the application note directing a two-
level decrease from the offense level listed in the pre-
amendment Drug Quantity Table when crack and other
drugs were present in the same case. Taylor cannot prevail
by relying on only the portion of Amendment 750 that helps
him and ignoring the portion that offsets the same adjust-
ment so that there is no net effect on his guideline range.
Section 3582(c)(2) applies to a defendant “who has been sen-
tenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission” retroactively.
    The “sentencing range” that must have been changed to
permit relief under § 3582(c)(2) is not the base offense level
or any other intermediate step in the guideline calculation,
but the bottom-line, final range that was the basis for the
sentence. Relief is not available if a retroactive amendment
“does not have the effect of lowering the defendant’s appli-
cable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B); United
States v. 

(relief not available under
§ 3582(c)(2) where retroactive amendment reduced final of-
fense level by one level but guideline imprisonment range
remained 360 months to life); see also United States v. Robin-

(relief not available under § 3582(c)(2)
where final guideline range had been based on statutory
mandatory minimum not affected by retroactive guideline
10                                                    No. 13-2978

amendment). Taylor was not eligible for a sentence reduc-
tion because the sentencing range of 188 to 235 months for
his drug crimes was not changed by Amendments 748 and
750.
    We conclude by noting that Taylor may be eligible for a
future sentencing reduction based on retroactive Amend-
ment 782 to the Guidelines, which has reduced by 2 levels
the base offense levels assigned to drug quantities in § 2D1.1.
See U.S.S.G. Supp. app. C., amend. 782, p. 71 (2014). After
applying this amendment, his imprisonment range for his
drug convictions would be 151 to 188 months. See 

But for Taylor to benefit from this amendment,
he would need to file a new motion under § 3582(c)(2) in the
district court based on Amendment 782. See United States v.
Hayden, No. 14-1812, 

, at *3 (7th Cir. Dec.
30, 2014). If he is in fact eligible for relief, the district court
would need to exercise its discretion under 18 U.S.C.
§§ 3553(a) and 3582(c)(2).
   We modify the judgment of the district court to deny
Taylor’s motion for relief on its merits, and as modified that
judgment is AFFIRMED.