BOGGS, Circuit Judge.
In 2007, defendant-appellant Damon Joiner pled guilty to distribution and possession, with intent to distribute, of 129.77 grams of cocaine base (crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and (b)(1)(B). Although Joiner was subject to a 240-month statutory minimum penalty, the government moved for a downward departure based on substantial assistance, and Joiner was sentenced to 107 months of imprisonment and five years of supervised release. Following the Fair Sentencing Act of 2010 and the corresponding crack-cocaine-guideline amendments implemented by Amendment 750, Joiner moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court denied Joiner's motion, and Joiner now appeals. For the reasons that follow, we affirm the district court's order.
Joiner pled guilty to crimes involving 129.77 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and (b)(1)(B). At the time of his original sentencing, this quantity of crack cocaine corresponded to a base offense level of 30. See U.S.S.G. § 2D1.1(c) (2007). Factoring in a three-level reduction for acceptance of responsibility, Joiner had a total offense level of 27 and a criminal-history category of V, implying a guideline range — as determined from the § 5A Sentencing Table — of 120-150 months.
At Joiner's sentencing hearing, the government noted that while, under Joiner's plea agreement, it had agreed to recommend a four-level downward departure from the 240-month statutory minimum for his substantial assistance, it now felt that Joiner's cooperation deserved a five-level departure. The district judge granted the government's motion for substantial assistance, enabling Joiner to be sentenced
Years later, the Fair Sentencing Act of 2010 (FSA) increased the quantity of crack cocaine required to trigger the 20-year statutory minimum for a defendant convicted of a prior felony drug offense from 50 grams to 280 grams. See 21 U.S.C. § 841(b)(1)(A) (2013). Because Joiner's crime involved 129.77 grams of crack cocaine, he would have been subject to a lower, ten-year statutory minimum had he been sentenced after passage of the FSA, see 21 U.S.C. § 841(b)(1)(B) (2013), but, as both this court and the Supreme Court have made clear, the FSA's lower statutory minimums do not apply to defendants sentenced before passage of the FSA, see Dorsey v. United States, ___ U.S. ___, 132 S.Ct. 2321, 2336, 183 L.Ed.2d 250 (2012); United States v. Hammond, 712 F.3d 333, 336 (6th Cir.2013). Nevertheless, the 2011 crack-cocaine-guideline amendments, also prompted by the FSA, did lower the § 2D1.1 base offense levels for crack-cocaine offenses and thus also lowered the § 5A guideline range to which Joiner would have been subject absent the existence of a statutory minimum. See U.S.S.G. Amend. 750. Joiner relied on this change in moving to modify his sentence pursuant to 18 U.S.C. § 3582(c).
The district court denied Joiner's request for a sentence reduction, holding that Amendment 750 did not have the effect of lowering Joiner's "applicable guideline range." To reach this result, the court relied on our decision in United States v. Hameed, 614 F.3d 259, 268-69 (6th Cir.2010), which held that when a defendant's "mandatory minimum exceeded the otherwise applicable guideline range, the sentencing court must use the mandatory minimum sentence as the starting point for any downward departure." Dist. Ct. Op. at 4 (citing Hameed, 614 F.3d at 268). Accordingly, the district court ruled that when a defendant was subject to a statutory minimum at his original sentencing but received a downward departure for substantial assistance, a "Guidelines amendment [that] lowered the sentencing range under Section 2D1.1... `did not lower an "applicable" guideline range as required by U.S.S.G. § 1B1.10(a)(2)(B).'" Ibid. (quoting Hameed, 614 F.3d at 269). Thus, because the same 240-month statutory minimum applied to Joiner at his sentence-reduction proceeding as it did at the time of his original sentencing — because of the FSA's non-retroactivity — the district court held that his "applicable guideline range" had
Normally, this court reviews a district court's denial of a motion to modify a sentence under 18 U.S.C. § 3582(c)(2) for abuse of discretion. See United States v. Moore, 582 F.3d 641, 644 (6th Cir.2009). However, where a district court concludes, as it did here, that it lacks the authority under 18 U.S.C. § 3582(c)(2) to reduce a defendant's sentence, such a conclusion is a question of law that this court reviews de novo. See United States v. Curry, 606 F.3d 323, 327 (6th Cir.2010).
Under 18 U.S.C. § 3582(c)(2), a defendant is eligible for a sentence reduction if: (1) the defendant "has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission"; and (2) such reduction is "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c). We have clarified that to satisfy the second requirement, "a guidelines amendment must `have the effect of lowering the defendant's applicable guideline range.'" Hameed, 614 F.3d at 269 (quoting U.S.S.G. § 1B1.10(a)(2)(B)); see also United States v. Pembrook, 609 F.3d 381, 383 (6th Cir.2010). Joiner claims that Amendment 750, which lowered the § 2D1.1 base offense levels for crack-cocaine offenses, entitles him to a sentence reduction under § 3582(c). Assuming without deciding that Joiner's sentence was based on § 2D1.1 and thus that he satisfies the first requirement for § 3852(c) sentence-reduction eligibility, Joiner's appeal fails, as Amendment 750 does not have the effect of lowering his "applicable guideline range."
The primary issue in this appeal revolves around the meaning of the term "applicable guideline range." Amendment 750 provided, for the first time, a definition of this term. It did so by amending Application Note 1(A) to U.S.S.G. § 1B1.10 to read:
U.S.S.G. § 1B1.10 cmt. n.1(A) (emphasis added). Thus, the sentencing guidelines now affirmatively indicate that a defendant's "applicable guideline range" is the range that results from applying U.S.S.G. § 1B1.1(a).
Turning to this section of the guidelines, § 1B1.1(a) reads as follows:
U.S.S.G. § 1B1.1(a). Important to our inquiry is § 1B1.1(a)(8)'s indication that Part G of Chapter Five, which contains a provision incorporating any relevant statutory minimum into a defendant's guideline range, see U.S.S.G. § 5G1.1, is part of the initial § 1B1.1(a) calculus.
Thus, by the terms of §§ 1B1.1(a)(8) and 5G1.1, when a statutory minimum falls above a defendant's § 5A guideline range — as was the case at Joiner's original sentencing — the statutory minimum becomes the defendant's new § 1B1.1(a) guideline range. And since the Application Note to § 1B1.10 now specifically equates a defendant's "applicable guideline range" with the range that results from the application of § 1B1.1(a), a statutory minimum that falls above a defendant's § 5A guideline range also becomes the defendant's "applicable guideline range."
Joiner disagrees with this conclusion, arguing that "applicable guideline range" is the range that exists before one accounts for any relevant statutory minimum penalty; according to Joiner, all provisions of § 1B1.1(a) except § 1B1.1(a)(8) should be included in the definition of "applicable guideline range." He reaches this conclusion by observing that the language of Application Note 1(A) tracks the language of § 1B1.1(a)(7), inferring from this similarity that the one sub-subsection to follow, i.e., § 1B1.1(a)(8), is excluded from the definition of "applicable guideline range." Yet Application Note 1(A) unambiguously references § 1B1.1(a) in its entirety.
Joiner also invokes U.S.S.G. § 1B1.10(b)(2)(B) in support of his definition of "applicable guideline range." In general, the sentencing guidelines prohibit a court from reducing a defendant's sentence to a term that is below his amended § 5A guideline range, i.e., the range that is used for the purposes of his sentence reduction. See U.S.S.G. § 1B1.10(b)(2)(A). However, U.S.S.G. § 1B1.10(b)(2)(B) provides an exception to this prohibition, stating that if a defendant was originally sentenced below his "applicable guideline range" due to a departure for substantial assistance, a court may, at a subsequent sentence-reduction proceeding, impose a sentence that is "comparably less than the amended guideline range" to reflect the defendant's substantial assistance. U.S.S.G. § 1B1.10(b)(2)(B). Joiner argues that this exception would be unnecessary under our definition of "applicable guideline range" because under that definition, a defendant whose mandatory minimum was pierced by a substantial-assistance motion would not be eligible for a sentence reduction
Finally, Joiner cites three cases from our sister circuits, claiming that these cases adopt a definition of "applicable guideline range" that excludes a defendant's statutory minimum. We begin by noting that two of the cases cited by Joiner, United States v. Wren, 706 F.3d 861 (7th Cir.2013), and United States v. Liberse, 688 F.3d 1198 (11th Cir.2012), do not adopt the definition of "applicable guideline range" supported by Joiner or, for that matter, present factual scenarios even remotely analogous to Joiner's.
In Wren, the Seventh Circuit reviewed the sentence-reduction appeal of two defendants whose original § 5A guideline ranges were each entirely above their statutory minimums. Accordingly, the defendants' statutory minimums played no role in determining the applicable guideline ranges used at their original sentencings. Wren, 706 F.3d at 862. After Amendment 750, however, the defendants' § 2D1.1 base offense levels were lowered to the extent that their statutory minimums were either within or above their new § 5A guideline ranges. Ibid. The Seventh Circuit held that because the defendants' statutory minimums were not used to calculate their applicable guideline ranges during their original sentencings, those minimums should remain inoperative at the time of sentence reduction even though, by virtue of the defendants' lower § 2D1.1 base offense levels, the minimums had become relevant. Id. at 863. It reached this conclusion by noting that "§ 1B1.10(b)(1) tells a court not to work through the sequence in § 1B1.1 as if it were sentencing the prisoner afresh," but rather to start with the "original calculation, then swap [only] the amended Guideline range into that calculation without making any other change." Ibid. Thus, it reasoned that "if § 5G1.1 did not affect the original [sentencing] calculation, it does not come into play when a court considers the effect of a retroactive change to the Guidelines." Ibid.
It is unclear how Wren supports the notion that a statutory minimum is not part of a defendant's "applicable guideline range." Wren merely indicated that if § 5G1.1 was not used during the original sentencing — due to a statutory minimum's being below a defendant's § 5A guideline range — the statutory minimum could not later play a role during sentence-reduction proceedings.
With regard to the Eleventh Circuit's opinion in Liberse, that case, like Wren, dealt with a situation where, at the defendant's original sentencing, his statutory minimum fell below his § 5A guideline range and thus played no role in calculating his "applicable guideline range." Liberse, 688 F.3d at 1199-1200. However, at the time he moved for a sentence reduction, Liberse's statutory minimum, by virtue of Amendment 750, fell entirely above his new, amended § 5A guideline range. Id. at 1200. The Liberse court began by refusing to address the first disputed issue: whether the FSA's new statutory minimums applied retroactively during sentence-reduction proceedings. Id. at 1202. However, the court, speaking hypothetically, went on to hold that were the FSA not retroactive for such proceedings and were Liberse thus "subject to the same ... mandatory minimum that he was subject to at his original sentencing[,] ... that mandatory minimum would be[come] his amended guidelines range because it [was now] greater than the top of his otherwise applicable amended guidelines range." Ibid. In other words, the Liberse court specifically held that when a defendant's statutory minimum is greater than his amended § 5A guideline range, the statutory minimum controls for the purposes of sentence reduction. Of course, in Liberse's case, his controlling statutory minimum was still below the original § 5A guideline range used at his first sentencing, thus he was eligible for a sentence reduction. But far from contradicting our definition of "applicable guideline range," the Liberse court's express reliance on Liberse's original statutory minimum to determine whether he was eligible for a sentence reduction is in perfect accord with the definition of "applicable guideline range" that we adopt today.
Finally, Joiner points to United States v. Savani, Nos. 11-4359/4494 & 12-1034, ___ F.3d ___, ___, 2013 WL 2462941, at *9 (3rd Cir. June 10, 2013), in which the Third Circuit did indeed adopt his argument that a defendant's statutory minimum should not be included as part of his "applicable guideline range." The court in Savani reached this conclusion by first finding that "the guidelines are grievous[ly] ambiguous and hopelessly imprecise regarding the Commission's description of `applicable guideline range' contained within the revised Application Note 1(A)." Ibid. (alteration in original) (internal quotation marks omitted). The court thus applied the rule of lenity to hold that § 1B1.1(a)(8) — and its incorporation of a defendant's statutory minimum — should be ignored when defining the term "applicable guideline range." Ibid. As discussed supra in Section III.A, we find no such ambiguity in Application Note 1(A)'s definition of the term "applicable guideline range," and we reject Savani's invocation of the rule of lenity in the face of clear language defining that term.
Having defined "applicable guideline range," the next question is whether
After Amendment 750, Joiner's amended § 2D1.1 base offense level — for the purposes of his sentence-reduction proceeding — is now 28, see U.S.S.G. § 2D1.1(c) (2012), less three levels for acceptance of responsibility. Thus, with a base offense level of 25 and a criminal-history category of V, Joiner's amended § 5A guideline range would normally be 100-125 months. However, the original 240-month statutory minimum still applies to Joiner. As discussed earlier, we have made clear that the FSA's new lower statutory minimums do not apply to defendants sentenced before passage of the FSA. See Dorsey, 132 S.Ct. at 2336; Hammond, 712 F.3d at 336. Thus, while Joiner would be subject to a statutory minimum of 120 months had he been sentenced post-FSA, the pre-FSA date of his sentencing clearly requires application of the 240-month minimum. Because Joiner's statutory-minimum penalty remains 240 months, his "applicable guideline range" also remains 240 months.
While the district judge did, pursuant to the methodology in Joiner's plea agreement, use the § 2D1.1 crack-cocaine guidelines to assist in assessing the amount of Joiner's substantial-assistance departure, our opinion in Hameed indicates that "the appropriate starting point for calculating a downward departure under 18 U.S.C. § 3553(e) is the mandatory minimum sentence itself." Hameed, 614 F.3d at 268 (internal quotation marks omitted). Thus, "[al]though § 2D1.1 surely provided a `guideline range,' it did not provide one that was `applicable' to a departure for substantial assistance under § 3553(e) and § 5K1.1." Ibid. We specifically indicated that this held true even when, as in Hameed's case, as well as Joiner's, the sentencing judge "acceded to the parties' request that he take the base offense level prescribed by § 2D1.1 as his starting point [for a substantial-assistance departure]," reasoning that the § 2D1.1 base offense level "was not `applicable' because it was not the correct point from which the departure should have been measured." Ibid.
Accordingly, in the case of a defendant who, based on his substantial assistance, receives a sentence below an otherwise applicable statutory minimum, it cannot be said that a subsequent amendment to the sentencing guidelines has had the effect of lowering the defendant's "applicable guideline range" if he is still subject to that same statutory minimum. Given that Joiner is subject to the same statutory-minimum sentence as that which was in effect at the time of his original sentencing, Amendment 750 does not have the effect of lowering his "applicable guideline range."
For the foregoing reasons, we affirm the decision of the district court denying Joiner's motion for a sentence reduction under 18 U.S.C. § 3582(c).