JOHN GLEESON, District Judge:
Gilberto Rivera is a crack cocaine offender who was convicted after trial and sentenced in 1996 to a 292-month term of imprisonment. On January 14, 2008, Rivera filed a motion in the United States District Court for the District of Connecticut pursuant to 18 U.S.C. § 3582(c)(2) seeking a reduction of his sentence. Specifically, Rivera sought to benefit from the 2007 decisions by the United States Sentencing Commission (the "Commission") to (a) reduce the sentences for offenses involving crack and (b) make the reductions retroactive. The district court denied the motion on the ground that Rivera was not eligible for a sentence reduction. Rivera filed this appeal, and we now reverse. Rivera was indeed eligible for a reduction, and we remand the case to the district court for a determination of whether he should receive one.
Rivera's offense involved approximately 3.3 kilograms of crack cocaine. The highest base offense level prescribed by the drug quantity table—Level 38—applied at the time of his sentencing to all crack offenses involving 1.5 kilograms or more of crack. U.S. Sentencing Guidelines Manual ("U.S.S.G." or the "Guidelines") § 2D1.1(c)(1) (1996). Thus, Rivera's base offense level was 38, to which there were no adjustments. As for criminal history, Rivera's prior convictions earned him sufficient points under U.S.S.G. § 4A1.1 to place him in Criminal History Category ("CHC") IV. The applicable range under the offense guideline was therefore 324-405 months.
However, the nature of Rivera's convictions subjected him to treatment as a career offender under § 4B1.1.
Thus, Rivera's career offender status affected his Guidelines range by moving him from Level 38, CHC IV, with a corresponding range of 324-405 months, to Level 38, CHC VI, where the range is 360 months to life.
At the sentencing on September 10, 1996, the district court (Alan H. Nevas, J.) departed downward from the applicable range of 360 months to life. The basis for the departure was Rivera's mental health. As the sentencing court noted, the presentence report included a history of head injuries. Rivera had undergone several psychological and neuropsychological assessments to determine his competency in connection with one of his prior prosecutions, and there were strong indications that Rivera suffered from a profound cognitive disability. As a result, the court invoked its power to depart based on Rivera's mental condition, stating as follows: "[T]he court is going to depart downward three levels pursuant to [U.S.S.G. §§] 5H1.3 and 5K2.0.
On January 14, 2008, Rivera filed a motion to reduce his sentence pursuant to the retroactive application of the amended crack guideline. The district court denied the motion and Rivera moved for reconsideration.
On March 31, 2010, Rivera filed a notice of appeal.
The Sentencing Reform Act of 1984 ("SRA"), Pub.L. No. 98-473, tit. II, ch. II, 98 Stat.1987, requires the Commission to periodically review the Guidelines and to revise them as appropriate. See 28 U.S.C. § 994(o) (2006). When the Commission amends the Guidelines to lower the sentencing range for a particular offense, it is authorized by the SRA to decide whether and to what extent previously-sentenced offenders may benefit from the change: "If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." § 994(u). As the Supreme Court recently observed, these provisions allow for correction when a particular guideline becomes "a cause of inequality, not a bulwark against it." Freeman v. United States, ___ U.S. ___, 131 S.Ct. 2685, 2690, 180 L.Ed.2d 519 (2011) (plurality opinion).
The Commission's exercise of this statutory authority triggers an exception to the general rule that sentencing courts are not authorized to modify sentences after they are imposed. Specifically, 18 U.S.C. § 3582(c)(2) provides that
One of the critical issues in this case is whether Rivera's sentence was "based on" a subsequently-lowered sentence range within the meaning of § 3582(c)(2).
A retroactive amendment merely authorizes a reduction in sentence; it does not require one. In determining whether to modify a sentence, a judge must consider not only the traditional sentencing factors set forth in 18 U.S.C. § 3553(a), but also the post-sentencing behavior of the defendant and any public safety concerns a reduction in sentence would raise. U.S.S.G. § 1B1.10 cmt. n.1(B). Though a ruling granting or denying an eligible offender's request for a reduction is reviewed for abuse of discretion, United States v. Borden, 564 F.3d 100, 104 (2d Cir.2009), an order declaring an offender ineligible for one is reviewed de novo, see United States v. McGee, 553 F.3d 225, 226 (2d Cir.2009).
Section 3582(c)(2) grants courts the authority to reduce sentences only if doing so is consistent with the Commission's applicable policy statements. The relevant policy statement in this regard is U.S.S.G. § 1B1.10, entitled "Reduction in Term of Imprisonment as a Result of Amended
U.S.S.G. § 1B1.10(a) (emphases added). The Commentary to the section reiterates that eligibility for a sentence reduction "under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) [of § 1B1.10] that lowers the applicable guideline range." § 1B1.10 cmt. n.1(A).
As for the extent of the permissible reduction in sentence, § 1B1.10(b)(2) provides that "the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range 30...." U.S.S.G. § 1B1.10(b)(2)(A). If the original sentence was lower than the applicable range, the policy statement provides for a commensurate reduction in the amended sentence. § 1B1.10(b)(2)(B) ("If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range ... may be appropriate.").
Finally, despite United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the Guidelines merely advisory, the limitations on the degree of a sentence reduction under § 3582(c)(2) are mandatory: "Section 3582(c)(2)'s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding." Dillon v. United States, ___ U.S. ___, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010).
The legal context in which we decide Rivera's case also includes our own precedents, which establish two important principles. First, if a crack offender who was also a career offender under § 4B1.1 received no downward departure at his initial sentence, he is not eligible for a reduction, at least where "the career offender range ... remains unaltered by the crack cocaine amendments." United States v. Martinez, 572 F.3d 82, 83 (2d Cir.2009). In those circumstances, the
Second, if the sentencing judge in this case had said he was departing from the career offender guideline in order to base the sentence on the range provided by the offense guideline, i.e., § 2D1.1, Rivera would be eligible for a sentence reduction. See McGee, 553 F.3d at 228. The defendant in McGee was a career offender, but the sentencing judge determined that the range computed under the career offender guideline overstated the seriousness of McGee's criminal history. She therefore departed under U.S.S.G. § 4A1.3 to the range produced by the offense guideline (92-115 months), and sentenced McGee to a 115-month term of imprisonment. Id. at 226. Since the actual sentence was explicitly based on the range produced by the offense guideline, and McGee was thus "disadvantaged by the 100-to-1 sentencing disparity that the crack amendments sought to correct," we construed § 3582(c)(2) and § 1B1.10 in a manner that rendered McGee eligible for a reduction. Id. at 230. As discussed further below, unlike Martinez, the precise question we decided in McGee—is a career offender whose sentencing judge departed under § 4A1.3 from the career offender guideline to a sentence based explicitly on the drug offense guideline eligible for a sentence reduction under § 3582(c)(2)?— has sharply divided the circuits.
This case is not controlled by Martinez. Though Rivera is a career offender, the sentencing judge departed from the
The government argues that Rivera is ineligible for relief under § 3582(c)(2) because, notwithstanding the downward departure, he was not sentenced "based on" a range that has subsequently been lowered by the Sentencing Commission, as that statute requires. Rather, it contends, he was sentenced "based on" the career offender guideline, which has not been amended. Relatedly, the government contends that Rivera is ineligible under § 1B1.10 because his "applicable" guideline range, which it asserts is the career offender range, has not been lowered by the retroactive amendment at issue, as that guideline requires.
We hold first that these two issues largely overlap. The Sentencing Commission promulgated § 1B1.10 to implement its statutory authority under § 994(u) to determine when and to what extent sentence reductions are retroactive and, once that authority is exercised, to guide sentencing judges who are considering sentence reductions pursuant to § 3582(c)(2). The statute authorizes a reduction when the original sentence was "based on" a sentencing range that has been lowered; the guideline authorizes one when the range "applicable" at the initial sentence has been lowered. Provisions enacted for the same purpose should be read in pari materia. See, e.g., United States v. Battista, 575 F.3d 226, 234 (2d Cir.2009). We think that the range the initial sentence was "based on" within the meaning of the statute is also generally the range that was "applicable" within the meaning of the guideline. See Darton, 595 F.3d at 1194. Despite the difference in language between the statute and the guideline, we doubt there are many scenarios in which a defendant could qualify for a sentence reduction under one but not the other.
The question before us is this: What range was Rivera's sentence "based on"— that is, what was his "applicable" sentencing range for purposes of § 3582(c)(2) and § 1B1.10? There are two candidates, as two ranges were implicated at his 1996 sentencing. The first was supplied by the career offender guideline (at least in part), and it was 360 months to life in prison (Offense Level 38/CHC VI). This was the "starting point" of the sentencing proceeding.
The stakes are high for Rivera. If he was sentenced "based on" the career offender range, he is not eligible for a sentence reduction. This is because the retroactive amendment reduces Rivera's career offender offense level from 38 to 37,
On the other hand, if Rivera's sentence was "based on" the range to which his sentencing judge departed, he is eligible for a sentencing reduction of up to 30 months. The same three-level departure from the revised career offender computation yields an Offense Level of 34 in Criminal History Category VI, with a corresponding range of 262-327 months. As mentioned, a reduction to the bottom of that range would shorten Rivera's prison term by two and one-half years.
We hold that Rivera's sentence was "based on" the range produced by subtracting three offense levels from the career offender computation. The resulting range was the one the sentencing judge found to be "applicable" to Rivera, and he chose a sentence at the low end of that range. That range is lowered when the retroactive amendment at issue is plugged into its calculation, even if everything else remains the same. Rivera is therefore eligible for a reduction.
The government contends that the range Rivera's sentence was based on was the career offender range, but the sentencing judge rejected that range in favor of the one on which he actually based Rivera's sentence. See United States v. Cardosa, 606 F.3d 16, 20 (1st Cir.2010) ("[T]he government fails to explain why it makes sense to so read `based on,' given that it is a less natural reading and inconsistent with the policy rationale for both the statute and amendments in this case."). To be sure, the career offender range was the starting point of Rivera's sentencing proceeding, but then the judging began, and because of Rivera's mental condition that range was deemed inapplicable. The sentence imposed was based explicitly on the post-departure range, which has since been lowered. See Freeman, 131 S.Ct. at 2695 (Sotomayor, J., concurring in the judgment) ("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.... As a result, in applying § 3582(c)(2) a court must discern the foundation
Our reading of the plain wording of § 3582(c)(2) is further supported by McGee. In rejecting the government's argument that McGee's sentence was "based on" the pre-departure, career offender range, as we do again here, we observed that the meaning of the language in § 3582(c)(2) and § 1B1.10 is "inherently contextual." McGee, 553 F.3d at 229 (quoting United States v. Dauray, 215 F.3d 257, 264 (2d Cir.2000)) (internal quotation marks omitted). It was clear from the sentencing transcript in McGee that the judge had not relied on the career offender range, and indeed "would likely have considered a different sentence from the one imposed" had the retroactive amendment been in effect at the time. Id. at 228. In those circumstances, we concluded that a holding that the (rejected) career offender range was the "applicable" range for the purposes of § 3582(c)(2) and § 1B1.10 would amount to "excessive formalism," and that therefore McGee was sentenced "based on" the post-departure range. Id. at 227-29.
The same is true with Rivera. As described above, the starting point for his sentence was a range of 360 months to life (Offense Level 38/CHC VI), but the judge determined that Rivera's mental condition warranted a three-level departure to Level 35. The judge then imposed a sentence at the bottom of the resulting 292-365 month range. If Rivera's sentencing range is computed in light of the retroactive amendment, the resulting offense level is 37, not 38. The same three-level departure from that level (again in CHC VI) produces a sentencing range of 262-327 months. Thus, there is ample reason to believe that Rivera would have received a sentence as low as 262 months—30 months lower than the sentence imposed—had the offense guideline been amended before he was sentenced. In short, Rivera appears to have been "disadvantaged by the 100-to-1 sentencing disparity that the crack amendments sought to correct," McGee, 553 F.3d at 230, in precisely the same way as McGee.
Our approach in McGee and in this case accords precisely with our obligation under § 3582(c)(2) and § 1B1.10 to
Freeman, 131 S.Ct. at 2692-93 (plurality opinion). The marginal effect of the rejected 100-to-1 ratio on Rivera's sentence is easily isolated. It produced a sentencing range with a low end that is 30 months higher than the exact same methodology would produce today. Accordingly, the district court should be permitted to revisit Rivera's sentence to the extent allowable under § 3582(c)(2) and § 1B1.10.
We recognized in McGee our obligation, both generally and in this specific setting, to let lenity play a role in the construction of the Guidelines where there is doubt about their scope. McGee, 553 F.3d at 228-29. The same holds true when we construe statutes. See, e.g., United States v. Kerley, 544 F.3d 172, 178 (2d Cir.2008) ("If Congress leaves a statute ambiguous..., `the ambiguity should be resolved in favor of lenity.'" (citation omitted)). As discussed above, we believe the plain language of § 3582(c)(2) and § 1B1.10 compel the conclusion that Rivera's sentence was based on the post-departure range his sentencing judge found applicable to his case—a range that has subsequently been lowered as a result of the Commission's 2007 amendment. But even if those provisions were ambiguous, the rule of lenity
In addition, as discussed above, all we decide here is the eligibility of Rivera for a sentence reduction under § 3582(c)(2), not his entitlement to one. See Freeman, 131 S.Ct. at 2694. The latter question is left to the sound discretion of the district court. If there are good reasons why Rivera's sentence should not be reduced notwithstanding the influence the now-discredited 100-to-1 ratio had on it, the district court is free to consider those reasons in determining whether to reduce the sentence.
A contrary holding could produce anomalous and unfair results. The government concedes, as it must in light of McGee, that a career offender convicted of a crack offense is sometimes eligible under § 3582(c)(2) for a reduction if the sentencing judge departed from the otherwise-applicable range. Yet it seeks a rule limiting that eligibility to cases in which the sentencing judge explicitly stated that he or she was departing to the range established by the offense guideline. This case highlights the potential unfairness of such a limitation. Rivera's career offender range was 360 months to life (Level 38/CHC VI). His range under the offense guideline was 324-405 months (Level 38/CHC IV). His range after the district court's departure was 292-365 months (Level 35/CHC VI). Thus, the sentencing judge in this case departed to a sentence below the range computed under the offense guideline. He might indeed have believed, as did the sentencing judge in McGee, that the range produced by the career offender guideline overrepresented the seriousness of Rivera's criminal history, see U.S.S.G. § 4A1.3, and that therefore a sentence within the range produced by the offense guideline (324-405 months) was fairer. Had the judge imposed such a sentence and used that reasoning, the government agrees Rivera would be eligible for a sentence reduction. But if Rivera's sentencing judge harbored that belief, he had no reason to express it, as Rivera's mental condition warranted an even greater departure under § 5H1.3. Put another way, if the judge had had the foresight to depart in stages—first under § 4A1.3 to the range provided by the offense guideline and then a second departure under § 5H1.3 to 292 months based on Rivera's mental condition—the government would agree that Rivera is eligible for a sentence reduction under McGee. But the judge's failure to anticipate that fifteen years later we would be parsing his sentencing methodology in this manner, in the government's view, should categorically deprive Rivera of the minor and long-overdue relief the 2007 amendment was intended to provide. We decline to adopt this crabbed approach. "There is no reason to deny § 3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range." Freeman, 131 S.Ct. at 2690.
Instead, we hold as follows: Where the sentencing judge departs from a range computed under the career offender guideline to a lower range, the sentence imposed was "based on" the latter range for purposes of § 3582(c)(2), and for the purposes of § 1B1.10 that range is the "guideline range applicable" to the defendant. If a subsequently-lowered guideline "was a relevant part of the analytic framework the judge used to determine the sentence," Freeman, 131 S.Ct. at 2693, the relevant statutory and Guidelines provision require that a § 3582(c)(2) proceeding be available to allow the sentencing court the opportunity to remedy an injustice.
McGee (and by extension our decision here) is in conflict with the decisions of several other circuits. For example, in Darton, the Tenth Circuit faced the same situation we faced in McGee—a request for a sentence reduction by a career offender who had received a criminal history departure under § 4A1.3 to a sentence within the range produced by the offense guideline. Darton, 595 F.3d at 1193. The defendant argued that the initial sentence was "based on" the post-departure range, which was the "applicable" range under § 1B1.10, but his argument was rejected by the Tenth Circuit. The court's reasoning was driven by the Guidelines Manual's definition of the term "departure." By specifically defining a departure as "a sentence outside the applicable guideline range," the court reasoned, the Guidelines make clear that "a departure only exists apart from the applicable guideline range; there is no such thing as a departure to the applicable range." Id. at 1194 (citing definitions of "departure" in the commentary to §§ 1B1.1, 4A1.3 and 5K2.0). Thus, it concluded that "the guideline range to which a court departs cannot constitute the `applicable guideline range' or, in other words, the range upon which the sentence is `based' for purposes of a sentence reduction under § 3582(c)." Id.
Darton relied in part on the Eighth Circuit's decision in Tolliver, which reached a similar result in a different (and unusual) setting. In Tolliver, the parties engaged in plea bargaining based on the assumption that the crack guideline would yield a range of 188-235 months. Tolliver, 570 F.3d at 1064. However, the probation officer determined that the career offender guideline applied, the court agreed, and Tolliver was sentenced to a 262-month term. Id. Later, Tolliver and the government stipulated to a grant of § 2255 relief on the condition that Tolliver would then be sentenced to a 188-month term. Id. That sentence was imposed, and after the 2007 amendment to the crack sentences, Tolliver sought a reduction under § 3582(c)(2) and § 1B1.10. Id. In finding him ineligible, the Eighth Circuit relied not only on the Guidelines' definition of the term "departure," but also on the application instructions for the Guidelines set forth in § 1B1.1. Id. at 1065-66. Those instructions require a sentencing judge to take all the steps necessary to compute the guidelines range before deciding whether any departures are warranted. "It follows," the court observed, "that ... the application instructions will only permit a departure from the `applicable guideline range,' and thus preclude a departure to the `applicable guideline range.'" Id. at 1066 (emphases added). Therefore, it held, the career offender range was the defendant's "applicable" range, and since it had not been lowered by the 2007 amendment, Tolliver was ineligible for a sentence reduction. Id. at 1066-67.
The Sixth Circuit reached the same result in United States v. Pembrook, 609 F.3d 381 (6th Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1599, 179 L.Ed.2d 503 (2011). In holding that a sentenced defendant who was indistinguishable from the defendant in McGee was not eligible for a sentence reduction, the court found its "most persuasive support" in the Guidelines' application instructions relied upon by the court in Tolliver. Id. at 385. Since the order of operations established by
Pembrook, Tolliver and Darton are all based on the same flawed premise—that the applicable range for the purpose of a sentencing proceeding must necessarily be the same as the applicable range for the purpose of a subsequent sentence modification. We see no reason why that must be the case. We acknowledge a "natural presumption that identical words used in different parts of the same act are intended to have the same meaning," Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (1932), and we agree that the same presumption would generally apply to identical phrases used in different parts of the Guidelines Manual. "But the presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent." Id.; see also Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87, 55 S.Ct. 50, 79 L.Ed. 211 (1934) ("[S]ince most words admit of different shades of meaning, susceptible of being expanded or abridged to conform to the sense in which they are used, the presumption readily yields to the controlling force of the circumstance that the words, though in the same act, are found in such dissimilar connections as to warrant the conclusion that they were employed in the different parts of the act with different intent.").
One circumstance in which the presumption is readily rebutted is "[w]here the subject matter to which the words refer is not the same in the several places where they are used," Atlantic Cleaners & Dyers, 286 U.S. at 433, 52 S.Ct. 607, and that is precisely the situation here. The subject matter of the phrase "applicable guideline range" in the definition of "departure" in the commentary to § 1B1.1 is the defendant's sentencing, at which time the applicable range is "the starting point and the initial benchmark" of the proceeding. Gall, 552 U.S. at 49, 128 S.Ct. 586. Because the Guidelines themselves contemplate departures from the applicable range (and Booker contemplates variances from it even where departures are unavailable), the starting point is not always the finishing point. Thus, it is true that when Rivera was sentenced, his applicable range was the career offender range of 360 months to life. From there, the sentencing judge departed based on his mental condition to a different range, 292-365 months.
The subject matter of the phrase "guideline range applicable to the defendant" in § 1B1.10 is not a sentencing proceeding but a modification proceeding that occurs after (in this case, more than 10 years after) sentence has been imposed. The question in that context is not what sentence is appropriate, but rather whether the sentence actually imposed should be reduced in light of an intervening retroactive amendment. In that setting, common sense suggests that in deciding whether
Our conclusion that the "applicable range" may have one meaning for sentencing purposes and another for purposes of a § 3582(c)(2) proceeding finds support in our rationale in Martinez. The defendant there sought a modification under § 3582(c)(2) and contended that his initial sentence was "based on" the offense guideline because the sentencing judge consulted that guideline in calculating his range as a career offender. We disagreed, holding that his applicable range for purposes of § 3582(c) was the end result of the overall guideline range calculus—i.e., the career offender range, not the interim steps along the way. Martinez, 572 F.3d at 85. We explained that
Id. at 84 n. 3 (quoting United States v. Mateo, 560 F.3d 152, 155 (3d Cir.2009)) (emphasis added); see also United States v. Caraballo, 552 F.3d 6, 10 (1st Cir.2008).
When Rivera was sentenced, the offense guideline and the career offender guideline were both interim steps in the sentencing calculus, the end result of which was the lower range to which the sentencing judge departed. Thus, the applicable range at Rivera's sentencing was the career offender range, but the applicable range for his 3582(c)(2) proceeding is the range on which the sentencing judge actually based his sentence.
Our approach is also consistent with the Supreme Court's emphasis in Dillon on the fact that a § 3582(c)(2) proceeding is not a resentencing. It is, rather, a limited revisiting of a previously-imposed sentence, during which the analytic framework of the sentence is replicated with one exception—the provision that has been retroactively amended is substituted for the corresponding provision applied at the time of sentencing. See Dillon, 130 S.Ct. at 2691 (citing § 1B1.10(b)(1)). By its very nature, then, the focus of the modification proceeding is on the final result of the sentencing proceeding, and the analysis that led to that result. Where the final result is the same as the initial applicable range, as in Martinez, the "applicable guideline" at both the sentencing and the subsequent modification proceeding are the same. But where, as here, the analytic framework of the sentence includes a determination that the defendant falls outside the heartland of the applicable range that was the starting point of the sentencing proceeding, the applicable range at the modification stage will be different.
Finally, we acknowledge the Sentencing Commission's proposed amendment to § 1B1.10, see U.S. Sentencing Comm'n, 76 Fed.Reg. 41332 (proposed July 13, 2011). Absent congressional disapproval, that amendment will become effective on November 1, 2011, and it will dramatically alter the landscape for sentenced prisoners who seek to benefit from this year's retroactive reduction of crack sentences. Among other effects, the proposed amendment will preclude sentence modifications in situations like the one in McGee,
A remand for the purpose of allowing the district court to exercise the broad discretion afforded by § 3582(c)(2) is consistent with our approach to related sentencing situations. After Booker, we faced the question of how to deal on direct review with sentences imposed before that decision by judges who were under the erroneous impression that the Guidelines were mandatory. Our resolution of the plain error and harmless error issues in such cases was to remand them to the district courts "for determination of whether to resentence," firm in the belief that "an appellate court will normally be unable to assess the significance of any error that might have been made." United States v. Crosby, 397 F.3d 103, 117 (2d Cir.2005). When the Supreme Court in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), made it clear that we had been erroneously inhibiting sentencing judges from deviating from the 100-to-1 ratio, we faced a similar plain error issue. Once again, acknowledging "the broad deference that this Circuit has afforded the sentencing discretion of the district courts," we elected to remand all such cases to give the district courts an opportunity to determine whether, in light of subsequent changes in the law, they would have imposed different sentences. United States v. Regalado, 518 F.3d 143, 147, 149 (2d Cir.2008). Our holding today brings that same approach to an analogous setting. The Commission determined that sentences imposed under the onerous crack guideline should be reexamined. The benefit of that long-overdue measure must not be limited to "arbitrary subset[s]" of defendants whose sentences appear to have been influenced by the pre-amendment guideline. Freeman, 131 S.Ct. at 2695. The best way to remedy the "systematic injustice" produced by the old guideline, id., is to err on the side of empowering the district courts to revisit crack sentences, especially since (a) any actual sentence reduction is committed to the sound discretion of the district courts and (b) the extent of any such reduction has been carefully circumscribed by the Commission. These circumstances counsel in favor of a generous construction of § 3582(c)(2) and § 1B1.10, not the narrow ones adopted by some of our sister circuits.
The order denying Rivera's motion for a sentence reduction is reversed and the case is remanded for a determination of whether such a reduction is appropriate in his case.
KATZMANN, Circuit Judge, concurring:
I concur in the judgment that the Rivera is eligible for a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2) and the retroactive amendments to the crack cocaine sentencing guidelines. I also agree with much of the majority's reasoning. To begin with, I share the majority's view that we must understand the retroactive crack amendments as an effort by the U.S. Sentencing Commission to provide a "partial remedy for the urgent and compelling problem of crack-cocaine sentences." Freeman v. United States, ___ U.S. ___, 131 S.Ct. 2685, 2694, 180 L.Ed.2d 519 (2011) (plurality opinion) (internal quotation marks omitted). As a plurality of the Supreme Court cautioned in Freeman, there is no need to interpret § 3582(c)(2) in a way that "extend[s] the benefit of the
As the majority makes clear, in order for Rivera to be eligible for a sentence reduction under § 3582(c)(2), it is not sufficient that he was sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission"; the statute requires also that the sentence reduction be "consistent with applicable policy statements issued by the Sentencing Commission." United States v. Martinez, 572 F.3d 82, 84 (2d Cir.2009) (per curiam) (quoting 18 U.S.C. § 3582(c)(2)) (internal quotation marks omitted). The policy statement relevant here renders ineligible defendants for whom the amendment "does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G. § 1B1.10(a)(2)(B).
The majority reads these separate eligibility requirements—that the defendant have been sentenced "based on" a subsequently lowered range, and that the amendment have an effect of lowering the defendant's "applicable guideline range"— as essentially one and the same. As the majority acknowledges, other circuits do not treat these requirements as equivalent. The Third Circuit, for example, has concluded that the "based on" requirement and the policy statement's language are "complementary" and that the policy statement is "narrower." United States v. Doe, 564 F.3d 305, 310-11 (3d Cir.2009). And in considering this question, regardless of how they resolve it, several of our sister circuits have derived guidance from the Commission's general instructions on how the apply the Guidelines, see U.S.S.G. § 1B1.1, which suggest that the defendant's "guideline range" is fixed prior to a sentencing court's consideration of departures under Chapter Five of the Guidelines Manual. Based on the order for sentencing determinations set forth in these instructions, these courts have concluded that Chapter Five departures have no effect on a defendant's "applicable guideline range" for sentence reduction purposes. See, e.g., United States v. Guyton, 636 F.3d 316, 319-20 (7th Cir.2011); United States v. Flemming, 617 F.3d 252, 262-64 (3d Cir.2010); United States v. Pembrook, 609 F.3d 381, 384-85 (6th Cir.2010); United States v. Darton, 595 F.3d 1191, 1196-97 (10th Cir.2010); United States v. Tolliver, 570 F.3d 1062, 1065-66 (8th Cir.2009). Under that reading, Rivera would not be entitled to relief.
Unlike the majority, which concludes that the meaning of § 3582(c)(2) and § 1B1.10 is straightforward, I find the relationship between the statutory "based on" requirement and Commission's policy statement to present a close and difficult question. On the one hand, the majority's reading, by interpreting the policy statement in a way that would "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 2692-93 (plurality opinion), has the virtue of eschewing arbitrary and formalistic distinctions among classes of defendants whose sentences were as a practical matter
On the other hand, Congress has plainly granted the Commission, through its policy statements, the authority to "specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." 28 U.S.C. § 994(u); see also Dillon v. United States, ___ U.S. ___, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010). The Commission, in turn, has linked eligibility for a sentence reduction to the concept of an "applicable guideline range." It is therefore understandable that some of our sister circuits have closely parsed the Guidelines and the various usages of similar terms therein to ascertain the meaning of this concept. And to extent that these courts have concluded that the Commission never intended a defendant's "applicable guideline range" to take account of Chapter Five departures, that conclusion appears to have been borne out by the Commission's recent promulgation of a proposed amendment that, once effective, would make explicit that the "applicable guideline range" referred to in § 1B1.10 is the guideline range determined before the consideration of any departure or variance. See U.S. Sentencing Comm'n, 76 Fed.Reg. 41332, 41334 (July 13, 2011).
The panel in McGee faced a similar interpretive conundrum. There, like here, the government argued that the policy statement "treats the applicable guideline range as the pre-departure range ...[,] which ... courts have held is unaffected by [the crack amendment]." 553 F.3d at 228. The McGee panel conceded that the government's contentions in this regard were "not without force." Nonetheless, "given that the policy statement is subject to different interpretations and taking account of case law as well as the purposes of the crack amendments," the panel concluded that the defendant there was eligible for a reduction. Id. Perceiving an ambiguity as to what the Sentencing Commission intended, the panel applied the rule of lenity in McGee's favor. Id. at 229-30.
As I read McGee, we are compelled to hold that the version of the policy statement applicable at times relevant to Rivera's sentencing was ambiguous. To my mind, the ambiguity described in McGee does not disappear merely because Rivera's departure falls under Chapter Five of the Guidelines Manual and was based on his diminished mental condition, whereas the departure in McGee arose from a Chapter Four provision and involved the overrepresentation of McGee's criminal history. In declining to adopt a reading of the policy statement that "would lend itself to excessive formalism," id. at 228, McGee did not suggest that the particular chapter in which the Guidelines provision authorizing the pertinent departure appears should make any difference.
The rule of lenity, which applies to our interpretation of the Guidelines, requires ambiguities like the one at issue here to be resolved in the defendant's favor. See United States v. Simpson, 319 F.3d 81, 86 (2d Cir.2002). I therefore join the majority's conclusion that Rivera's "applicable guideline range" was his post-departure range and that he is accordingly eligible for a sentence reduction.
Offense Statutory Maximum Offense Level
(A) Life 37
(B) 25 years or more 34
(C) 20 years or more, but less than 25 years 32
(D) 15 years or more, but less than 20 years 29
(E) 10 years or more, but less than 15 years 24
(F) 5 years or more, but less than 10 years 17
(G) More than 1 year, but less than 5 years 12
U.S. Sentencing Comm'n, 76 Fed.Reg. at 41334 (emphases added).
