United States v. Pembrook

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0171p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-6452
v.
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Defendant-Appellant. -
DARYL MARCUS PEMBROOK,
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 97-20194-001—Jon Phipps McCalla, Chief District Judge.
Argued: April 21, 2010
Decided and Filed: June 11, 2010
Before: BOGGS, SUHRHEINRICH, and ROGERS, Circuit Judges.

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COUNSEL
ARGUED: Daniel T. French, ASSISTANT UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellee. ON BRIEF: Randolph W. Alden, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Memphis, Tennesee, for Appellant. Daniel T. French, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
BOGGS, J., delivered the opinion of the court, in which SUHRHEINRICH, J.,
joined. ROGERS, J. (pp. 10-16), delivered a separate dissenting opinion.
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OPINION
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BOGGS, Circuit Judge. In 1997, Daryl Marcus Pembrook pleaded guilty to
possession with intent to distribute crack cocaine. Under U.S.S.G. § 4B1.1, Pembrook was
a career offender. At sentencing, Pembrook prevailed upon the district court to depart
downward from his career-offender guideline range to a sentence stated with reference to the
analogous range for his crack-cocaine offenses. A decade later, Pembrook filed a motion to

1
No. 08-6452 United States v. Pembrook Page 2

reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that Amendment 706 to the
crack-cocaine guidelines had lowered his applicable guideline range. The district court
denied his motion, on the grounds that Pembrook’s applicable guideline range was his
career-offender range–not his crack-cocaine range–and Amendment 706 did not affect that
range. Pembrook now appeals. Because we conclude that Pembrook’s applicable guideline
range was his career-offender range, and Amendment 706 did not have the effect of lowering
that range, we affirm.

I

On December 19, 1997, Pembrook appeared before the United States District Court
for the Western District of Tennessee and pleaded guilty to possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). The Presentence Investigation
Report (PSR) determined that Pembrook qualified as a career offender because he was
twenty-six years old, his instant conviction was a controlled-substance felony, and he had
two prior controlled-substance felony convictions. Consequently, Pembrook had a total
offense level of thirty-four and a criminal history category of VI, resulting in a guideline
range of 262-367 months.

At Pembrook’s sentencing hearing, neither party objected to the PSR, and the district
court determined that Pembrook’s guideline range was 262-367 months. Pembrook moved
for a downward departure pursuant to U.S.S.G. §§ 4A1.3 and 5K2.0, arguing that his
“criminal history category significantly over represent[ed] the seriousness of his past
conduct,” and that his case “present[ed] circumstances and factors that really put his cases
outside of the heartland of cases covered by the Guidelines.”

The district court proved sympathetic to Pembrook’s arguments and decided to grant
Pembrook a downward departure. The court observed that “if the defendant were not
qualified as a Career Criminal, which he is, he would be looking at 188 to 235 months of
incarceration.” After hearing from the Government, the district court decided to impose a
200-month sentence. The court explicitly stated that this sentence was within the guideline
range that would have applied to Pembrook had he not qualified as a career offender.
No. 08-6452 United States v. Pembrook Page 3

Nearly ten years after Pembrook was sentenced, the United States Sentencing
Commission adopted Amendment 706 to the Sentencing Guidelines, which retroactively
reduced the base offense level for most crack-cocaine offenses. Shortly thereafter, on June
6, 2008, Pembrook filed a motion with the district court, seeking a reduction in his sentence
pursuant to 18 U.S.C. § 3582(c)(2). Pembrook contended that he was eligible for such a
reduction because the district court had originally imposed a sentence “based on” his crack-
cocaine guideline range, and Amendment 706 lowered that range. The district court,
however, concluded that Pembrook was not eligible for a sentence reduction because
Pembrook’s applicable guideline range was his career-offender range, not his crack-cocaine
range, and Amendment 706 did not affect that range. The district court therefore denied
Pembrook’s motion. Pembrook timely appealed.

II

On appeal, Pembrook claims that the district court erred when it concluded that he
was ineligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We review a
district court’s denial of a motion to modify a sentence under § 3582(c)(2) for an abuse of
discretion. United States v. Perdue, 572 F.3d 288, 290 (6th Cir. 2009). A district court
abuses its discretion when it relies on clearly erroneous findings of fact, applies the law
improperly, or uses an erroneous legal standard. Ibid.

A district court may modify a defendant’s sentence only as authorized by statute.
Ibid. Section 3582(c)(2) authorizes a district court to reduce a defendant’s sentence when
(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 pursuant to 28 U.S.C.
994(o),” and (2) “such a reduction is consistent with applicable policy statements issued by
the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added). The applicable
policy statement, U.S.S.G. § 1B1.10, provides that “[a] reduction in the defendant’s term of
imprisonment is not consistent with this policy statement [if] . . . [a]n amendment [to the
Guidelines] does not have the effect of lowering the defendant’s applicable guideline
range.” U.S.S.G. § 1B1.10(a)(2)(B) (emphasis added). Accordingly, a defendant is
ineligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) unless an amendment
to the Sentencing Guidelines lowers the defendant’s “applicable guideline range.” See
No. 08-6452 United States v. Pembrook Page 4

United States v. Washington, 584 F.3d 693, 700 (6th Cir. 2009) (“When Congress granted
the district courts authority to reduce otherwise valid sentences pursuant to § 3582(c)(2), it
explicitly restricted judicial discretion by incorporating the Commission’s policy statements
. . . .”).

In this case, Pembrook contends that his “applicable guideline range” is the guideline
range that the sentencing court referenced after it chose to depart downward pursuant to
U.S.S.G. §§ 4A1.3 and 5K2.0–that is, his crack-cocaine guideline range. Pembrook
therefore concludes that he is eligible for a sentence reduction based on Amendment 706 to
the Sentencing Guidelines.

Our circuit has not yet addressed the meaning of “applicable guideline range” in this
1
context. Pembrook’s position finds support in recent decisions by the Second and
Fourth Circuits, which have held that when a sentencing court uses its authority under
U.S.S.G. § 4A1.3 to depart downward from the career-offender guideline range to the
crack-cocaine guideline range, the defendant’s applicable guideline range is his crack-
cocaine range. United States v. Munn, 595 F.3d 183, 192-93 (4th Cir. 2010); United
States v. McGee, 553 F.3d 225, 229-30 (2d Cir. 2009). These courts have concluded that
such a defendant is eligible for a sentence reduction based on Amendment 706. Munn,
595 F.3d at 192; McGee, 553 F.3d at 230. In contrast, the Eighth and Tenth Circuits
have held that a defendant’s applicable guideline range is “the range produced under the
guidelines’ sentencing table after a correct determination of the defendant’s total offense
level and criminal history category but prior to any discretionary departures.” United
States v. Darton, 595 F.3d 1191, 1197 (10th Cir. 2010); see also United States v.
Blackmon, 584 F.3d 1115, 1116-17 (8th Cir. 2009); United States v. Tolliver, 570 F.3d
1062, 1066 (8th Cir. 2009). The Eighth and Tenth Circuits have therefore concluded that
§ 3582(c)(2) does not authorize a sentence reduction for a defendant who received a

1
We have previously held “that a district court may not grant a motion for a reduction in sentence
premised upon Amendment 706 if the defendant seeking the reduction was originally sentenced as a career
offender,” Perdue, 572 F.3d at 292, even if the defendant received a multi-level downward departure
pursuant to U.S.S.G. § 5K1.1, see id. at 290; see also United States v. Lockett, 341 F. App’x 129, 131 (6th
Cir. 2009). However, the court reached that conclusion without specifically addressing the meaning of
“applicable guideline range.”
No. 08-6452 United States v. Pembrook Page 5

downward departure from the career-offender range to the crack-cocaine range. Darton,
595 F.3d at 1197; Blackmon, 584 F.3d at 1116-17; Tolliver, 570 F.3d at 1066-67.

After a review of U.S.S.G. § 1B1.10 and related guidelines, we agree with the
Eighth and Tenth Circuits, and hold that the term “applicable guideline range” in
U.S.S.G. § 1B1.10 refers to a defendant’s pre-departure guideline range. The language
of U.S.S.G. § 1B1.10 itself (the policy statement applicable to retroactive sentence
reductions after amendments) offers some support for this position. U.S.S.G.
§ 1B1.10(b)(2) states that a district court may not reduce a defendant’s sentence to a
term below an amended guideline range unless “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, [in which case] a reduction
comparably less than the amended guideline range . . . may be appropriate.” U.S.S.G.
§ 1B1.10(b)(2)(B) (emphasis added). This provision specifically refers to the
defendant’s applicable guideline range as the guideline range that applied before the
sentencing court decided to depart or vary downward. It thus weighs in favor of
interpreting the defendant’s applicable guideline range as his pre-departure guideline
range.2

The most persuasive support for this reading of “applicable guideline range,”
however, emerges from U.S.S.G. § 1B1.1, which sets forth the “Application
Instructions” for the Sentencing Guidelines and establishes the specific order in which
courts are to apply guideline provisions. See U.S.S.G. § 1B1.1; Tolliver, 570 F.3d at
1065-66. The first six steps in the instructions involve calculating the defendant’s total
offense level and criminal history category. U.S.S.G. §§ 1B1.1(a)-(f). The next two
steps in the instructions direct the sentencing court to “[d]etermine the guideline range
. . . that corresponds to the [defendant’s] offense level and criminal history category” and
then to “determine . . . the sentencing requirements” for that “particular guideline range.”

2
The McGee court addressed this argument and conceded that it was “not without force,” 553
F.3d at 228, but ultimately concluded that the language of U.S.S.G. § 1B1.10(b)(2)(B) alone was
insufficient to establish that “applicable guideline range” referred to the defendant’s pre-departure range,
see id. at 228-29.
No. 08-6452 United States v. Pembrook Page 6

Id. §§ 1B1.1(g)-(h). Only after the court has determined the defendant’s guideline range
and corresponding sentencing requirements is the court instructed to “[r]efer to Parts H
and K of Chapter Five, Specific Offender Characteristics and Departures, and to any
other policy statements or commentary in the guidelines that might warrant consideration
in imposing sentence.” Id. § 1B1.1(i) (emphasis added). This plainly indicates that a
defendant’s guideline range is “the range produced under the guidelines’ sentencing
table after a correct determination of the defendant’s total offense level and criminal
history category but prior to any discretionary departures.” Darton, 595 F.3d at 1197;
see also Tolliver, 570 F.3d at 1065-66.

Consistent with this reasoning, the application notes to U.S.S.G. § 1B1.1 define
the term “departure” to mean

imposition of a sentence outside the applicable guideline range or of a
sentence that is otherwise different from the guideline sentence; and . . .
for purposes of 4A1.3 (Departures Based on Inadequacy of Criminal
History Category), assignment of a criminal history category other than
the otherwise applicable criminal history category, in order to effect a
sentence outside the applicable guideline range.

U.S.S.G. § 1B1.1 comment. (n.1(E)) (emphasis added). Under this definition, “a
departure only exists apart from the applicable guideline range; there is no such thing
as a departure to the applicable guideline range.” Darton, 595 F.3d at 1194 (citing
Tolliver, 570 F.3d at 1066). This leads inescapably to the conclusion that a defendant’s
applicable guideline range under U.S.S.G. § 1B1.10 is his pre-departure guideline range.
Note 1(E) specifically says that a departure is “outside the applicable guideline range,”
and it would thus be nonsensical to have an “applicable guideline range” that is the
result of a departure.3 Cf. United States v. Erpenbeck, 532 F.3d 423, 441 (6th Cir. 2008)

3
Invoking the rule of lenity, the dissent suggests that the term “applicable guideline range” is
ambiguous and should therefore be interpreted in favor of the defendant. See infra pp. 15-16. However,
as Thomas v. Barber recently reaffirmed, the rule of lenity does not automatically apply whenever a statute
exhibits any ambiguity–especially not if the language of the statute, though not entirely unambiguous,
admits to a natural reading. See 560 U.S. –, 2010 WL 2243706, at *9, *11 (2010). Rather, “the rule of
lenity only applies if, after considering text, structure, history, and purpose, there remains a grievous
ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress
intended.” Id. at *9 (internal quotation marks and citations omitted). That is not the case here.
No. 08-6452 United States v. Pembrook Page 7

(indicating that courts should interpret the Sentencing Guidelines as a coherent whole
and give consistent meaning to terms throughout the Guidelines).

We recognize, however, that the Fourth Circuit rejected this reasoning–at least
as it applies to a departure under U.S.S.G. § 4A1.3–in United States v. Munn, 595 F.3d
at 192-95. In Munn, the court focused on U.S.S.G. § 1B1.1(f), which instructs a
sentencing court to “[d]etermine the defendant’s criminal history category as specified
in Part A of Chapter Four” prior to calculating the defendant’s guideline range. Based
on this instruction, the Munn court reasoned that a sentencing court must grant the
§ 4A1.3 departure–which appears in Part A of Chapter Four–before determining the
defendant’s applicable guideline range.4 Munn, 595 F.3d at 192. The Munn court
therefore concluded that, “under the Application Instructions, [a § 4A1.3 departure] is
a departure to, as opposed to a departure from, the applicable guideline range.” Id. at
193. Turning to the definition of “departure” that appears in the application notes to
§ 1B1.1, the Munn court observed that the Sentencing Commission only added that
definition in 2003, and that a court “must apply the Guidelines edition in effect when
[the defendant] was sentenced.” Id. at 193 (citing U.S.S.G. § 1B1.11(a)). Because the
defendant in Munn was sentenced in 2001, the court determined that it was inappropriate
“to rely, to [the defendant’s] detriment, on the after-the-fact definition of ‘departure.’”
Ibid.

The Munn court’s analysis is not persuasive. As Judge Duncan observed in her
well-reasoned dissent from Munn, U.S.S.G. § 4A1.3 “itself belies the [Munn court’s]
conclusion[s].” 595 F.3d at 196 (Duncan, J., dissenting). In its present form, § 4A1.3
authorizes a “downward departure” if the defendant’s criminal history category
overstates the seriousness of the defendant’s past crimes. U.S.S.G. § 4A1.3(b)(1).
According to the commentary to § 4A1.3, the term “downward departure” in § 4A1.3 has
the same meaning that it has in the commentary to § 1B1.1—it is a “departure that
effects a sentence less than a sentence that could be imposed under the applicable

4
Notably, this reasoning would not apply to a § 5K2.0 departure, which appears in Chapter 5 of
the Guidelines.
No. 08-6452 United States v. Pembrook Page 8

guideline range or a sentence that is otherwise less than the guideline sentence.”
U.S.S.G. § 1B1.1 comment. (n.1(E)) (emphasis added); see also U.S.S.G. § 4A1.3
comment. (n.1) (incorporating the definition of “downward departure” from U.S.S.G.
§ 1B1.1 comment. (n.1)).5 This definition indicates that a § 4A1.3 departure is a
departure from the applicable guideline range, not a departure to the applicable guideline
range. Likewise, earlier versions of § 4A1.3 authorized a sentencing court to impose “a
sentence departing from the otherwise applicable guideline range.” U.S.S.G. § 4A1.3
(1997) (emphasis added).6 This language clearly assumed that § 4A1.3 would “be
applied while determining what sentence to impose after having calculated the
applicable guideline range, and not while determining the criminal history category
before having calculated the applicable guideline range. The contrary interpretation,
illogically, [would] give[] the sentencing court no applicable guideline range from which
to depart.” Munn, 595 F.3d at 196 (Duncan, J., dissenting).

Further, U.S.S.G. § 1B1.1(f) does not actually support the Munn court’s position.
As Judge Duncan noted:

Subsection (f) of [U.S.S.G. § 1B1.1] does not state, “Apply Part A of
Chapter 4,” but rather, “Determine the defendant’s criminal history
category as specified in Part A of Chapter Four.” USSG § 1B1.1(f).
Given the language quoted above, USSG § 4A1.3 does not involve
calculating [the defendant’s] criminal history category but instead
involves imposing a particular sentence. Thus, subsection (f) does not
in fact require applying USSG § 4A1.3 before [calculating the
defendant’s guideline range]. Instead, the relevant instruction does not
come until [the last step in the Application Instructions], which provides:
“Refer to . . . any other policy statements or commentary in the
guidelines that might warrant consideration in imposing sentence.”

5
U.S.S.G. § 5K2.0 also incorporates this definition of “downward departure.” See U.S.S.G.
§ 5K2.0 comment. (n.1).
6
U.S.S.G. § 5K2.0 similarly authorized a “departure from the applicable guideline range.”
U.S.S.G. § 5K2.0 (1997) (emphasis added). In fact, § 5K2.0 still provides that “[t]he sentencing court may
depart from the applicable guideline range.” U.S.S.G. § 5K2.0 (2009) (emphasis added).
No. 08-6452 United States v. Pembrook Page 9

595 F.3d at 196-97 (Duncan, J., dissenting). We therefore reject the Munn court’s
reasoning.7

In sum, then, a defendant’s applicable guideline range for the purposes of
U.S.S.G. § 1B1.10 is the range that applies before the sentencing court grants any
discretionary departures.8 As a result, in this case, Pembrook’s applicable guideline
range was his career-offender range, not the crack-cocaine range to which the district
court departed under U.S.S.G. §§ 4A1.3 and 5K2.0. It follows that Amendment 706 to
the Sentencing Guidelines did not have the effect of lowering Pembrook’s applicable
guideline range, and Pembrook is not eligible for a sentence reduction under 18 U.S.C.
§ 3582(c)(2). The district court therefore did not abuse its discretion when it denied
Pembrook’s motion for a reduction of sentence.

III

For the reasons stated above, we AFFIRM the order of the district court.

7
We also note that the Munn court’s approach does not appear to reflect actual practice. As this
case illustrates, a district court will generally grant a § 4A1.3 (or § 5K2.0) departure only after calculating
the defendant’s guideline range (and the PSR will almost always present the defendant’s guideline range
without any departures).
8
This reading of the term “applicable guideline range” appears consistent with the purpose of
18 U.S.C. § 3582(c)(2). By its terms, § 3582(c)(2) seeks to allow a sentence reduction only when the
Sentencing Commission has determined that a defendant’s original sentencing range was excessive. See
18 U.S.C. § 3582(c)(2) (authorizing a sentence reduction only when the Sentencing Commission has both
lowered a defendant’s sentencing range and refrained from issuing a policy statement that is inconsistent
with such reduction). In this case, the Sentencing Commission has never determined that the defendant’s
original sentencing range was excessive–at all relevant times, Pembrook has qualified as a career offender
under the Guidelines, and his career-offender range has remained constant. It was only the sentencing
court that determined that Pembrook’s career offender range was excessive, acting under its departure
authority, rather than by recalculating or altering the “applicable guideline range.”
No. 08-6452 United States v. Pembrook Page 10

_______________

DISSENT
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ROGERS, Circuit Judge, dissenting. The Sentencing Guidelines should be
interpreted, if the words can fairly be so read, to permit resentencing when a properly
applied Guideline that affected the length of a sentence is later retroactively reduced.
When two Guideline calculations were properly used at two different steps of the
sentencing determination process to determine a defendant’s original sentence, no policy
supports permitting resentencing only if the first, but not if the second, calculation would
have been different under a retroactive amendment. It is hard to imagine why the
Sentencing Commission would adopt such a policy. The syntax of the operative policy
statement language does not require such a limit; indeed, it cuts the other way. Under
the policy statement, there must have been a lowering of “the defendant’s applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The words most naturally mean “a
guideline range [properly] applied to the defendant.” The words do not require that there
be only one such range. By analogy, if a sport rule provides for a penalty if “the player’s
foot steps out of bounds,” English syntax does not require that the rule apply only to the
right foot or the left foot. The clear meaning of “the player’s foot” is “a foot of the
player.” In short, because the Sentencing Commission retroactively lowered the
Guideline range that the district court properly applied to Pembrook so as to affect his
sentence, the requirements of the statute and the operative policy statement were
fulfilled, and the district court had the authority to resentence Pembrook.

Daryl Pembrook pled guilty to possession with intent to distribute crack cocaine,
in violation of 21 U.S.C. § 841(a)(1). His base offense level under U.S.S.G. § 2D1.1
(1997) was 34, reflecting the fact that his offense involved between 150 and 500 grams
of crack cocaine. At Pembrook’s initial sentencing, the district court determined that
Pembrook qualified as a career offender, increasing his offense level to 37. After a
three-point reduction for acceptance of responsibility, Pembrook’s offense level was 34.
The district court explicitly noted that, absent the career offender determination,
No. 08-6452 United States v. Pembrook Page 11

Pembrook would have had an offense level of 31. Regardless of whether he was a career
offender, Pembrook’s criminal history category was VI. The district court determined
that Pembrook’s career offender offense level and his criminal history category “call[ed]
for a sentence of 262 to 327 months imprisonment.” (This calculation was not affected
by the later retroactive amendment to the Guidelines.) Pembrook’s attorney argued that
Pembrook’s criminal history over-represented the seriousness of his past conduct and
requested that the district court follow United States v. Fletcher, 15 F.3d 553, 557 (6th
Cir. 1994), and approve a “downward departure from the Career Offender Status.”

The district court granted the departure, and noted, “[f]or the record,” that “if the
defendant were not qualified as a Career Criminal, which he is, he would be looking at
188 to 235 months imprisonment.” That 188 to 235 month range corresponded with
Pembrook’s § 2D1.1 offense level as adjusted for Pembrook’s acceptance of
responsibility. Pembrook’s counsel requested a sentence at the low end of this range,
but the court stated that, given Pembrook’s history, there was “no basis for the low end
of the Guidelines.” After hearing from the defendant, the court determined that
Pembrook also did not deserve to be sentenced at a level as high as “the middle of the
Guidelines,” which was the district court’s normal practice. The court thus sentenced
Pembrook to 200 months’ imprisonment, near the 25th percentile of Pembrook’s § 2D1.1
crack cocaine Guideline range. Amendment 706 amended U.S.S.G. § 2D1.1
retroactively, such that Pembrook’s § 2D1.1 range would have been 151 to 188 months’
imprisonment if Amendment 706 had predated Pembrook’s sentencing. A sentence at
approximately the same percentile within the amended, 151 to 188 month, range would
be 160 months’ imprisonment.

Following Amendment 706 and Pembrook’s motion for resentencing, the district
court possessed the authority to resentence Pembrook. Under 18 U.S.C. § 3582(c)(2),
a district court may modify a defendant’s sentence if two conditions are satisfied. First,
the defendant must have been “sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. 994(o).” This condition has been satisfied in the present case
No. 08-6452 United States v. Pembrook Page 12

because the district court based Pembrook’s sentence on the crack cocaine Guideline
range applicable to Pembrook absent Pembrook’s career offender status. Second, the
sentence reduction must be “consistent with applicable policy statements issued by the
Sentencing Commission,” here U.S.S.G. § 1B1.10. That policy statement requires that
an amendment listed in U.S.S.G. § 1B1.10(c) “have the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). This condition
has also been satisfied because Amendment 706—which is listed in
§ 1B1.10(c)—lowered the Guideline range that the district court actually applied to
Pembrook after the court determined that the career offender range was not appropriate
in Pembrook’s case.

The phrase “applicable guideline range” as used in U.S.S.G. § 1B1.10 is most
logically read to include any Guideline range properly applied to a defendant so as to
affect his sentence. In this case, after the district court departed from the career offender
Guideline range, the court clearly applied the § 2D1.1 crack cocaine Guideline range to
Pembrook, expressly deciding that Pembrook deserved a sentence above the bottom of
that range but below the range’s median. As the majority reasons, the words “applicable
guideline range” sensibly refer to the U.S.S.G. § 1B1.1(g) step of the Guidelines
Application Instructions. But this does not mean that the phrase does not also include
a Guideline range applied at the later U.S.S.G. §1B1.1(i) step, dealing with departures.
There is no reason to limit the phrase “applicable guideline range” to step (g), when a
Guideline range is actually and legitimately “applied” as well at step (i).

Moreover, the Guidelines provide no global definition of the phrase “applicable
guideline range,” and a number of Guidelines provisions suggest that this phrase is not
intended to have such a specific or limited meaning. The clearest provision indicating
that the phrase “applicable guideline range” has multiple uses—including referring to
Guideline ranges applied after a departure—is U.S.S.G. § 4A1.3(b)(2)(A). Section
4A1.3 is entitled “Departures Based on Inadequacy of Criminal History Category,” and
subsection (b)(1) provides that if a “defendant’s criminal history category substantially
over-represents the seriousness of the defendant’s criminal history . . . a downward
No. 08-6452 United States v. Pembrook Page 13

departure may be warranted.” As an example, a defendant might have an offense level
of 25 and a criminal history category of III, resulting in a pre-departure Guideline range
of 70 to 87 months. If that defendant’s criminal history category substantially over-
represented the seriousness of the defendant’s prior criminal history, however, the
district court would be entitled to depart downward from that range to account for that
over-representation. Subsection (a)(4)(A) encourages courts to “determine the extent
of a departure under this subsection by using, as a reference, the criminal history
category applicable to defendants whose criminal history or likelihood to recidivate most
closely resembles that of the defendant’s.” The district court thus might determine that
criminal history category I more accurately reflects the seriousness of the defendant’s
criminal history. But subsection (b)(2)(A) limits the authority of district courts to depart:
“A departure below the lower limit of the applicable guideline range for Criminal
History Category I is prohibited.” Thus, for the hypothetical defendant, a departure
below the bottom of the range for offense level 25 and criminal history category I—57
months—would be prohibited by subsection (b)(2)(A). In the context of this example,
the Guidelines refer to the post-departure range as an “applicable guideline range,”
apparently because the district court in the situation in which that provision is binding
would have determined that the post-departure range applies to the defendant. This court
has also previously characterized a departure pursuant to U.S.S.G. § 4A1.3 as being
“granted in the context of calculating the applicable Guidelines range.” United States
v. Asher, 239 F. App’x 180, 182 n.1 (6th Cir. 2007); see also United States v.
O’Georgia, 569 F.3d 281, 289, 296 (6th Cir. 2009). Thus § 4A1.3 indicates that the
phrase “applicable guideline range” sometimes refers to post-departure Guideline ranges.

Further, U.S.S.G. § 5G1.1 and United States v. Johnson, 564 F.3d 419 (6th Cir.
2009), jointly refute the notion that the phrase “applicable guideline range” refers to the
range calculated at a single point in the process described by U.S.S.G. § 1B1.1. Section
1B1.1(g) instructs sentencing courts to “[d]etermine the guideline range in Part A of
Chapter Five that corresponds to the offense level and criminal history category
determined [by sections (a) - (f) of § 1B1.1].” Only then, in subsection (h), does a
district court consult “Parts B through G of Chapter Five” to determine “the sentencing
No. 08-6452 United States v. Pembrook Page 14

requirements and options related to probation, imprisonment, supervision conditions,
fines, and restitution.” Consideration of a defendant who is subject to a mandatory
minimum sentence reveals that the Guidelines and our precedents describe both “the
guideline range” mentioned by § 1B1.1(g) and “the sentencing requirements” mentioned
by § 1B1.1(h) as a defendant’s “applicable guideline range.” As an example, in
Johnson, the defendant had an offense level of 36 and a criminal history category of III,
resulting in a Guideline range of 235 to 293 months. 564 F.3d at 420. The defendant
was also subject to a mandatory minimum sentence of 240 months. Id. Section 5G1.1
provides that district courts may impose a sentence “at any point within the applicable
guideline range, provided that the sentence . . . is not less than any statutorily required
minimum sentence.” Thus, for the defendant in Johnson, the district court could impose
any sentence within the defendant’s 235 to 293 month range so long as the sentence was
above 240 months.1 The Sentencing Commission in § 5G1.1, then, uses the phrase
“applicable guideline range” to apply to the defendant’s Guideline sentence prior to any
modification for mandatory minimum sentences. But in Johnson we explicitly
considered whether the phrase “applicable guideline range” referred to the 235 to 293
month range or to the 240 to 293 month range, and concluded under the circumstances
of that case that “[w]here a mandatory minimum sentence exceeds the otherwise
applicable Guidelines range—as it would were [the defendant] to be resentenced
today—it replaces that Guidelines range.” 564 F.3d at 423. Thus, Johnson used the
phrase “applicable guideline range” to refer to the range computed after applying
U.S.S.G. § 5G1.1. The fact that there are two uses of the phrase “applicable guideline
range” under a combination of the Guidelines and our precedents refutes the theory that
“applicable guideline range” may only mean, throughout the Guidelines, the range
calculated in a particular step.

This court has also previously referred to a post-departure guideline range as an
“applicable guideline range,” further undermining the contention that this phrase is a
term of art meaning only the range calculated at the § 1B1.1(g) step. See, e.g., United

1
The requirement that sentences must generally be within Guideline ranges applied, of course,
only prior to United States v. Booker, 543 U.S. 220 (2005).
No. 08-6452 United States v. Pembrook Page 15

States v. Shafer, 573 F.3d 267, 271-72 (6th Cir. 2009) (“After . . . awarding a one-level
reduction pursuant to the Government’s motion for departure, the district court
recalculated Shafer's offense level to be 41, with a criminal history category of I. The
applicable guidelines range is 324 to 405 months . . . .”); O’Georgia, 569 F.3d at 289,
296 (explaining that the district court departed upwards and increased the defendant’s
criminal history category pursuant to U.S.S.G. § 4A1.3, which, with other adjustments,
“more than doubled the applicable Guidelines range”); United States v. Austin, Nos. 08-
5637, 08-5640, 2009 WL 89648, at *2 (6th Cir. Jan. 15, 2009) (“In the court’s view,
Defendant provided substantial assistance to the Government, justifying a three level
offense reduction from the offense level twelve to offense level nine. As a result,
Defendant's applicable Guidelines range was in Zone B . . . .”); United States v. Harden,
124 F. App’x 429, 429 (6th Cir. 2005) (“Due to the downward departure, the applicable
guideline range was 188 to 235 months.”).

Absent such a singular meaning, courts should interpret any use of “applicable
guideline range” both in the context in which the phrase is used and light of the rule of
lenity. “‘[T]he policy of lenity means that the Court will not interpret a federal statute
so as to increase the penalty it places on an individual when such an interpretation can
be no more than a guess as to what Congress intended.’” United States v. Boucha, 236
F.3d 768, 774 (6th Cir. 2001) (quoting Bifulco v. United States, 447 U.S. 381, 387
(1980)). “‘This policy embodies the instinctive distaste against men languishing in
prison unless the lawmaker has clearly said they should.’” Id. (quoting United States v.
Bass, 404 U.S. 336, 348 (1971)) (internal quotation marks omitted). The rule of lenity
properly applies to interpretations of the Guidelines. Id. at 775. “[T]he touchstone of
the rule of lenity is statutory ambiguity.” Bifulco, 447 U.S. at 387 (internal quotation
marks omitted). In the present circumstance, there is no compelling reason to read the
phrase “applicable guideline range” to exclude the Guideline range that the district court
actually applied to Pembrook. If the district court had departed and sentenced Pembrook
to a term of imprisonment above the bottom but below the median of Pembrook’s
§ 2D1.1 crack cocaine Guideline range after the promulgation of Amendment 706, then
Pembrook would have received a sentence in the range of 151 to 170 months’
No. 08-6452 United States v. Pembrook Page 16

imprisonment rather than the 200 month sentence he did receive. Pembrook’s present
sentence reflects the 100-1 crack cocaine to cocaine disparity rejected by Amendment
706, and thus the policy rationale underlying Amendment 706 and the Sentencing
Commission’s decision to apply that amendment retroactively also support resentencing
Pembrook.

This conclusion accords with the decisions reached by the Fourth and Second
Circuits in United States v. Munn, 595 F.3d 183 (4th Cir. 2010), and United States v.
McGee, 553 F.3d 225 (2d Cir. 2009), though those courts reached their decisions using
different reasoning. Because neither Munn nor McGee relied upon the argument that the
phrase “applicable guideline range” does not have a singular meaning within the
Guidelines, the majority’s responses to the arguments made in Munn and McGee do not
contradict a straightforward reading of “the defendant’s applicable guideline range” as
any guideline range properly applied to the defendant.

I would therefore remand for resentencing.