United States v. Flemming

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 09-2726

UNITED STATES OF AMERICA

v.

GLENN FLEMMING,
a/k/a Nasir Huggins,
Appellant

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-03-cr-00148-001)
District Judge: Honorable Anita B. Brody

Argued January 11, 2010

Before: AMBRO, CHAGARES, Circuit Judges and
JONES,* District Court Judge

*
The Honorable John E. Jones, III, United States District
Judge for the Middle District of Pennsylvania, sitting by
designation.
 (Opinion filed: July 27, 2010)

Peter A. Levin, Esquire (Argued)
1927 Hamilton Street
Philadelphia, PA 19130-0000

Counsel for Appellant

Michael L. Levy
United States Attorney
Robert A. Zauzmer
Assistant United States Attorney
Chief of Appeals
Bernadette McKeon (Argued)
Assistant United States Attorney
Salvatore L. Astolfi, Esquire
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106-0000

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge

Glenn Flemming was sentenced in February 2005 to 175

2
months’ imprisonment for federal firearm and crack cocaine
offenses committed in 2002. After the United States Sentencing
Commission retroactively lowered the offense levels for most
crack cocaine offenses by two levels, Flemming moved for a
reduction of sentence under 18 U.S.C. § 3582(c)(2). The
District Court denied his motion, concluding that it lacked
authority to reduce Flemming’s sentence because he was a
career offender under U.S.S.G. § 4B1.1. On appeal, Flemming
argues that, despite his status as a career offender, he is eligible
for a sentence reduction under § 3582(c)(2) because the District
Court granted him a downward departure under U.S.S.G.
§ 4A1.3 after concluding that the career offender enhancement
overstated the seriousness of his criminal history, and instead
sentenced him within the Guidelines range for crack cocaine
offenses.

The narrow issue presented in this case—whether a
career offender who receives a § 4A1.3 downward departure
under a pre-2003 edition of the Sentencing Guidelines to the
Guidelines range for crack cocaine offenses is eligible for a
sentence reduction under § 3852(c)(2)—is one of first
impression in our Court, but one that has divided our sister
circuit courts. The First and Second Circuits, as well as a
divided panel of the Fourth Circuit, have concluded that such a
defendant is eligible for a sentence reduction. The Eighth and
Tenth Circuits, as well as a divided panel of the Sixth Circuit,
have disagreed.

3
 Though we do so through a somewhat different analysis,
we join the First, Second, and Fourth Circuit Courts in
concluding that such a defendant is eligible for a sentence
reduction under § 3582(c)(2). Accordingly, we vacate the
District Court’s order and remand for further proceedings.

I. Background

In March 2003, a federal grand jury returned an
indictment charging that Flemming possessed with intent to
distribute crack cocaine, in violation of 21 U.S.C. § 841(a) and
(b)(1)(C) (Count One); possessed a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)
(Count Two); and possessed a firearm as a felon, in violation of
18 U.S.C. § 922(g) (Count Three). A jury convicted Flemming
on all three counts.

A. Sentencing

Using the 2001 edition of the Sentencing Guidelines,1 the
Probation Office determined that under the drug quantity table,
U.S.S.G. § 2D1.1(c) (the “Crack Cocaine Guidelines”),

1
Though the Presentence Investigation Report was prepared
in September 2004, the United States Probation Office used the
2001 edition of the Sentencing Guidelines—the edition in force
when Flemming committed the offenses in this case—to avoid
ex post facto issues. See U.S.S.G. § 1B1.11(b)(1).

4
Flemming’s base offense level was 24 because he possessed
more than four but less than five grams of crack cocaine. With
a criminal history category of V, Flemming’s Guidelines range
would have been 92 to 115 months’ imprisonment. However,
Flemming also qualified as a career offender under U.S.S.G.
§ 4B1.1 2 (the “Career Offender Guidelines”) based on two prior
convictions for controlled substance offenses. 3 The career
offender enhancement increased Flemming’s offense level to 34
and his criminal history category to VI, with a resulting
Sentencing Guidelines range of 262 to 327 months’
imprisonment. Flemming also faced a mandatory consecutive
sentence of 60 months’ imprisonment on Count Two. See 18
U.S.C. § 924(c)(1)(A)(i).

2
A defendant qualifies as a career offender if: “(1) [he] was
at least eighteen years old at the time [he] committed the instant
offense of conviction[;] (2) the instant offense of conviction is
a felony that is either a crime of violence or a controlled
substance offense[;] and (3) [he] has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a).
3
Flemming has two prior state court convictions (in
November 1999 and February 2000) for manufacturing,
delivering, or possessing with the intent to manufacture or
deliver a controlled substance. Flemming was 18 and 20-years
old, respectively, when he committed these offenses, and
received a sentence of 12 to 24 months’ imprisonment for each.
See PSR ¶¶ 34, 37.

5
 At sentencing, Flemming argued that the career offender
enhancement overstated his criminal history, warranting a
downward departure pursuant to U.S.S.G. § 4A1.3. Under the
2001 edition of the Sentencing Guidelines, § 4A1.3 in relevant
part provided:

If reliable information indicates that the criminal
history category does not adequately reflect the
seriousness of the defendant’s past criminal
conduct or the likelihood that the defendant will
commit other crimes, the court may consider
imposing a sentence departing from the otherwise
applicable guideline range.

U.S.S.G. § 4A1.3 (2001). In United States v. Shoupe, 35 F.3d
835 (3d Cir. 1994), we held that § 4A1.3 authorized a court to
depart both horizontally (in criminal history category) and
vertically (in offense level). Id. at 839. In the specific context
of a defendant subject to the career offender enhancement, we
reasoned that “[b]ecause career offender status enhances both a
defendant’s criminal history category and offense level, . . . a
sentencing court may depart in both under the proper
circumstances.” Id. at 838.

Consistent with our interpretation of § 4A1.3 in Shoupe,
the District Court granted Flemming a downward departure in
both offense level and criminal history category. The Court
explained:

6
 I’m going to start by saying that the guidelines . . .
as stated in the pre-sentence report are correct.
However, under [§ 4A1.3], I believe that . . .
designating Mr. Flemming as a career offender
overstates his criminal history and I find this to be
true . . . because [of] two things. Number one is
because the age at which he committed the
offenses . . . that are designated to qualify under
the criminal history designation. And also, . . .
although the two offenses in state court are not
related, there’s no question about that, the
sentencing judge gave Mr. Flemming 12 to 24
months.

And therefore, I will depart from the
criminal history record. That leaves us with . . .
an offense level of 24 and a criminal history of
five.

Though it did not expressly quantify the extent of its departure,
the offense level and criminal history category that the Court
was “le[ft] . . . with” were the same offense level and criminal
history category that applied under the Crack Cocaine
Guidelines without the career offender enhancement (i.e., level
24 and category V). To repeat, the resulting Guidelines range
was 92 to 115 months’ imprisonment.

Noting that the District Court had “determined that [it

7
was] not going to apply the career offender provisions,” the
Government recommended a sentence at the top of the
Guidelines range. The District Court followed suit and
sentenced Flemming to 115 months’ imprisonment on Counts
One and Three, and a mandatory consecutive sentence of 60
months’ imprisonment on Count Two. Flemming’s total
sentence was thus 175 months’ imprisonment.4

B. Motion for Sentence Reduction

Effective November 1, 2007, the Sentencing Commission
issued Amendment 706 to the Guidelines, which lowered the
base offense level for offenses involving most quantities of
crack cocaine by two levels. U.S.S.G. app. C, amend. 706 (Nov.
1, 2007). In May 2008, the Commission made Amendment 706
retroactive. U.S.S.G. app. C, amend. 713 (Supp. May 1, 2008);
U.S.S.G. § 1B1.10(c). On the basis of the Amendment,
Flemming filed a pro se motion for a reduction of sentence
pursuant to 18 U.S.C. § 3582(c)(2). The District Court
appointed counsel to represent Flemming, and that counsel filed
a supplemental brief on Flemming’s behalf.

The District Court denied Flemming’s motion. It

4
The District Court also imposed a six-year term of
supervised release, a $2,500 fine, and a $300 special assessment.
In December 2007, we affirmed Flemming’s conviction and
sentence.

8
reasoned that, although it had granted Flemming a downward
departure under § 4A1.3, it had nonetheless adopted the findings
of the Presentence Investigation Report and determined that
Flemming qualified as a career offender. Citing our decision in
United States v. Mateo, 560 F.3d 152 (3d Cir. 2009), the Court
held that Flemming was not entitled to a sentence reduction
because Amendment 706 did not affect his sentencing range
under the Career Offender Guidelines.5 Flemming timely
appealed.

II. Jurisdiction

The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have appellate jurisdiction under 28 U.S.C. § 1291.

III. Discussion

“[A] judgment of conviction that includes [a term of
imprisonment] constitutes a final judgment,” 18 U.S.C.
§ 3582(b), and generally may not be modified by a district court
“once it has been imposed,” id. § 3582(c). However, there is a
limited exception to this general rule of finality:

5
Though the District Court recognized that “this result may
not reflect [the Sentencing Commission’s] intent in passing
Amendment 706,” it determined that the conclusion that
Flemming was not eligible for a sentence reduction was
“compelled by . . . the law of this Circuit.”

9
 [I]n the case of a defendant who has been
sentenced to a term of imprisonment based on a
sentencing range that has subsequently been
lowered by the Sentencing Commission . . . , upon
motion of the defendant or the Director of the
Bureau of Prisons, or on its own motion, the court
may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a)
to the extent that they are applicable, if such a
reduction is consistent with applicable policy
statements issued by the Sentencing Commission.

Id. § 3582(c)(2).

We have interpreted this provision as authorizing a
district court to reduce a sentence already imposed where two
requirements are satisfied: (1) the defendant’s initial sentence
must have been “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission,” and
(2) the sentence reduction must be “consistent with applicable
policy statements issued by the Sentencing Commission.” Id.;
United States v. Doe, 564 F.3d 305, 309 (3d Cir. 2009). If these
two requirements are satisfied, a court may then exercise its
discretion—“after considering the factors set forth in section
3553(a) to the extent that they are applicable,” 18 U.S.C.
§ 3582(c)(2), as well as the factors contained in the commentary
to the Commission’s policy statements, U.S.S.G. § 1B1.10 cmt.
n.1(B)—to determine whether a reduction in sentence is

10
warranted (as well as the extent of any such reduction).

In this case, the District Court determined that it lacked
authority to consider whether a sentence reduction was
warranted because Flemming did not satisfy either of the two
statutory requirements in § 3582(c)(2). Thus, we are not called
on to review the District Court’s exercise of its discretion, but
to determine whether it was correct that Flemming is statutorily
ineligible for a sentence reduction under § 3582(c)(2). We
review de novo a district court’s interpretation of § 3582(c)(2),
as well as its interpretation of the Sentencing Guidelines. See
Mateo, 560 F.3d at 154.

A. Was Flemming sentenced “based on a sentencing
range” that has been lowered by Amendment
706?

Consistent with the District Court’s reasoning, the
Government contends that our decision in Mateo compels the
conclusion that Flemming was not sentenced “based on a
sentencing range” that was lowered by Amendment 706 because
his Guidelines range was calculated under the Career Offender
Guidelines in § 4B1.1, rather than the Crack Cocaine Guidelines
in § 2D1.1(c). We disagree.

In Mateo, we held that a career offender, who received no
downward departures and was sentenced within the Career
Offender Guidelines range, was not eligible for a reduction in

11
sentence even though his base offense level under the Crack
Cocaine Guidelines had been subsequently lowered by
Amendment 706. 560 F.3d at 155. We rejected the defendant’s
argument that his sentence was “based on” the Crack Cocaine
Guidelines in § 2D1.1(c) simply because “the District Court
consulted that section in calculating his offense level.” Id. In
addition, we emphasized the language from § 3582(c)(2) that the
sentence imposed must have been “‘based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission,’” id. (quoting 18 U.S.C. § 3582(c)(2)) (emphasis
in original), and reasoned that the term “sentencing range”
“‘clearly contemplates the end result of the overall guideline
calculus, not the series of tentative results reached at various
interim steps in the performance of that calculus.’” Id. (quoting
United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008))
(emphasis added). Thus, “‘if an amended guideline does not
have the effect of lowering the sentencing range actually used
at sentencing, the defendant’s sentence was not based on that
range within the intendment of the statute.’” Id. (quoting
Caraballo, 552 F.3d at 10) (emphasis added).

Far from compelling the conclusion that he is ineligible
for a sentence reduction, Mateo supports Flemming’s argument
that his sentence was “based on” the sentencing range calculated
under the Crack Cocaine Guidelines. Though the District Court
agreed that Flemming technically qualified as a career offender,
it declined to sentence him within that range, and instead applied
the Crack Cocaine Guidelines range after determining under

12
§ 4A1.3 that the career offender enhancement overstated the
seriousness of his criminal history. In other words, the District
Court “actually used” the Crack Cocaine Guidelines range,
rather than the Career Offender Guidelines range, when it
sentenced Flemming.

The First, Second, and Fourth Circuit Courts—as well as
numerous district courts, including several in our own
Circuit7 —have reached the same conclusion in nearly identical

7
See United States v. Poindexter, 550 F. Supp. 2d 578, 581
(E.D. Pa. 2008) (holding that career offender granted a
downward departure under § 4A1.3 and sentenced within the
Crack Cocaine Guidelines range was eligible for a sentence
reduction: “[I]n the end, [the Crack Cocaine Guidelines] played
a far more significant role than Section 4B1.1, the section that
the Government argues [the defendant’s] sentence was based
on.”); see also United States v. Stratton, No. 99-326, 2009 WL
506365, at *5-6 (E.D. Pa. Feb. 27, 2009); United States v. Clark,
No. 00-037, 2008 WL 2705215, at *1 (W.D. Pa. July 7, 2008);
United States v. Cornish, No. 05-337, 2008 U.S. Dist. LEXIS
50577, at *7-8 (D.N.J. June 25, 2008) (“[A]lthough these
downward departures were from the § 4B1.1 Guidelines based
on the Court’s determination that [the defendant’s] criminal
history was overstated, they resulted in a sentence that was
exactly as proposed by the Sentencing Guidelines under
§ 2D1.1. In effect, the Court did not sentence [the defendant] as
a career offender.”).

13
circumstances.8 In United States v. McGee, 553 F.3d 225 (2d
Cir. 2009) (per curiam), the District Court granted a career
offender a downward departure under § 4A1.3, stating that it
was departing from the Career Offender Guidelines range “to
the level that the defendant would have been in absent the career
offender status calculation.” Id. at 227 (internal quotation marks
omitted). Accordingly, the Court applied the sentencing range
calculated under the Crack Cocaine Guidelines and sentenced
the defendant within that range. Id. The Second Circuit
concluded that the defendant was eligible for a sentence
reduction, as it was “apparent that [the defendant] was sentenced
‘based on’ a sentencing guideline range that was subsequently
lowered by the Sentencing Commission because the district
court premised [its] ultimate sentence on the crack cocaine
guidelines.” Id. Indeed, because the district court “sentenced
[the defendant] based on the crack cocaine guidelines[, it] would
likely have considered a different sentence from the one
imposed if the applicable crack guidelines had so provided.” Id.
at 228. Importantly, the Second Circuit perceived no conflict
between the result it reached in McGee and the conclusion,
consistent with Mateo, that “a defendant who is sentenced as a

8
The Eleventh Circuit has also expressed agreement with this
conclusion, albeit in a dictum. See United States v. Moore, 541
F.3d 1323, 1329–30 (11th Cir. 2008) (agreeing that defendants
granted a downward departure under § 4A1.3, and sentenced
under the Guidelines range that “would be in effect absent the
career offender guideline[s],” would be eligible for a sentence
reduction under 18 U.S.C. § 3582(c)(2)).

14
career offender, but does not receive a downward departure,
[does not] qualif[y] for a reduced sentence.” Id. at 227; see also
United States v. Martinez, 572 F.3d 82, 84 (2d Cir. 2009)
(distinguishing the defendant in McGee—who “could have been
sentenced under § 4B1.1 but was in fact sentenced under [the
Crack Cocaine Guidelines in] § 2D1.1”—from a defendant who
is sentenced within the Career Offender Guidelines range and
thus ineligible for a sentence reduction based on Amendment
706) (emphases in original).

The First and Fourth Circuit Courts similarly have
concluded that a career offender who is granted a downward
departure under § 4A1.3 to the Crack Cocaine Guidelines range
is eligible for a sentence reduction under § 3582(c)(2). See
United States v. Cardosa, 606 F.3d 16, 21 (1st Cir. 2010);
United States v. Munn, 595 F.3d 183 (4th Cir. 2010).9 And, like

9
The Munn Court did not analyze separately the two
statutory requirements for a sentence reduction under
§ 3582(c)(2)—i.e., that (1) the defendant’s sentence was “based
on” a sentencing range that has been subsequently lowered, and
(2) that any sentence reduction be consistent with the Sentencing
Commission’s policy statements—but rather focused its analysis
on the second requirement, which we discuss below in Part
III.B. In that regard, the Fourth Circuit appears to have assumed
(as at least one other Circuit has) that the two requirements of
§ 3582(c)(2) are interchangeable. See Munn, 595 F.3d at 187
(“Together, § 3582(c)(2) and the Policy Statement make clear
that a defendant whose offense of conviction involved crack is

15
the Second Circuit in McGee (and our Court in Mateo), these
Courts agree that a defendant sentenced within the Career
Offender Guidelines range would not be eligible for a sentence
reduction. See Cardosa, 606 F.3d at 19 (citing United States v.
Ayala-Pizarro, 551 F.3d 84, 85 (1st Cir. 2008)); Munn, 595 F.3d
at 187 & n.7.

We agree with the reasoning of these Courts. The
Government’s contention that Flemming’s sentence was “based
on” the sentencing range calculated under the Career Offender
Guidelines cannot be squared with the ordinary meaning of that
phrase. See United States v. Cook, 594 F.3d 883, 888 (D.C. Cir.
2010) (“Construed in its ordinary sense, the phrase ‘based on’
refers, for purposes of section 3582(c)(2), to a guideline range
that determined the defendant’s sentence.”); see also Cardosa,
606 F.3d at 5. In applying the § 4A1.3 departure, the District
Court did not specify the number of offense levels or criminal
history categories by which it was departing. Rather, it simply
reverted, without further comment, to the base offense level
calculated under the Crack Cocaine Guidelines (24) and the
criminal history category that applied to Flemming absent the
career offender enhancement (V), and imposed a sentence
within that range. Indeed, we have little doubt that had

eligible for a reduced sentence only if Amendment 706 lowers
the defendant’s applicable guideline range.”); cf. United States
v. Dryden, 563 F.3d 1168, 1170–71 (10th Cir. 2009)
(concluding that the two requirements are “identical” and
“convey[] the same meaning”).

16
Amendment 706 been in effect when Flemming was
sentenced—and, thus, had Flemming’s offense level under the
Crack Cocaine Guidelines been two levels lower—the District
Court would have applied the resulting lower Guidelines range
after departing under § 4A1.3.10 To ignore these facts and
conclude nonetheless that Flemming was sentenced “based on”
the Career Offender Guidelines range would put form over
substance. See McGee, 553 F.3d at 228 (reasoning that “a
defendant who was, even if by virtue of a departure, sentenced
‘based on’ the crack guidelines [is] eligible for a reduction”
under § 3582(c)(2), and noting that “a different reading would
lend itself to excessive formalism”).

In sum, we conclude that Flemming satisfies the first
requirement of § 3582(c)(2), as his sentence was “based on a
sentencing range” that has subsequently been lowered by the
Sentencing Commission.

B. Does Amendment 706 have the effect of lowering
Flemming’s “applicable guideline range”?

What initially appears to be a question with a “seemingly
commonsense” answer, McGee, 553 F.3d at 229—i.e., whether
Flemming’s technical status as a career offender, which played
10
With an offense level of 22 and a criminal history category
of V, the advisory sentencing range for Flemming would have
been 77 to 96 months’ imprisonment (instead of 92 to 115
months).

17
no role in the sentence the District Court ultimately imposed,
nonetheless makes him ineligible for a sentence reduction—is
made far more complicated by the second requirement of
§ 3582(c)(2), which provides that any sentence reduction must
be “consistent with applicable policy statements issued by the
Sentencing Commission.” 11 18 U.S.C. § 3582(c)(2); see also
Doe, 564 F.3d at 310.

The policy statement in § 1B1.10 provides that a sentence
reduction based on a retroactive amendment is not consistent
with that policy statement if the amendment “does not have the
effect of lowering the defendant’s applicable guideline range.” 12
U.S.S.G. § 1B1.10(a)(2)(B) (emphasis added). Thus, under the
policy statement, Flemming is not eligible for a sentence
reduction if his “applicable guideline range” is the sentencing
range calculated under the Career Offender Guidelines, as that
range is not affected by Amendment 706. However, if
Flemming’s “applicable guideline range” is the Crack Cocaine

11
As the Supreme Court recently confirmed, the Sentencing
Commission’s policy statement in § 1B1.10 is binding on courts.
See Dillon v. United States, 130 S. Ct. 2683 (2010).
12
We have explained that while the policy statement and the
first requirement of § 3582(c)(2) are “complementary,” the
policy statement is “narrower.” Doe, 564 F.3d at 310–11
(rejecting the argument that the policy statement in § 1B1.10
“implicitly redefines the § 3582(c)(2) term ‘based on’”).

18
Guidelines range—which is affected by Amendment 706—he is
eligible for a sentence reduction.

The Government contends that the Guidelines specify
that all departures, including the departure authorized under
§ 4A1.3, result in a sentence outside the “applicable guideline
range.” Under the Government’s theory, it is irrelevant that the
District Court rejected the propriety of the career offender
enhancement and sentenced Flemming within the Crack Cocaine
Guidelines range, because his “applicable guideline range” for
purposes of § 1B1.10 remained the Career Offender Guidelines
range.

As we explain below, the Government’s view, though
plausible, is far from compelled by the Guidelines. Rather, after
“seiz[ing] every thing from which aid can be derived” to answer
this question, Chapman v. United States, 500 U.S. 453, 463
(1991) (internal quotation marks and citation omitted)—i.e., the
Guidelines’ text, the Sentencing Commission’s instructions for
applying the Guidelines, and the Commission’s applicable
Commentary to the Guidelines—we conclude that the edition of
the Guidelines used at Flemming’s sentencing is ambiguous as
to whether the “applicable guideline range” is his pre-§ 4A1.3
departure range (the Career Offender Guidelines range) or his
post-§ 4A1.3 departure range (the Crack Cocaine Guidelines
range). Under the rule of lenity, we resolve that ambiguity in
Flemming’s favor.

19
 1. The Application Instructions

The Sentencing Guidelines contain no global definition
of the phrase “applicable guideline range,” which our Court and
other circuit courts have treated as a term of art. As a result, we
previously have looked to the Application Instructions for the
Guidelines contained in U.S.S.G. § 1B1.1 for guidance in
determining the point at which a defendant’s “applicable
guideline range” is determined. Those Instructions (though they
do not use the term “applicable guideline range”) instruct
sentencing courts to apply the various provisions and chapters
of the Guidelines “in a specific order.” Doe, 564 F.3d at 311;
see also United States v. Johnson, 155 F.3d 682, 684 (3d Cir.
1998) (noting that the Application Instructions provide “a
sequence of steps for the court to follow in the order in which
they appear”) (emphasis in original).13 The theory is that, by

13
To be clear, these “steps” are not the same as those we
have required district courts to follow in the wake of United
States v. Booker, 543 U.S. 220 (2005). See United States v.
Gunter, 462 F.3d 237, 247 (3d Cir. 2006); accord United States
v. Grier, 585 F.3d 138, 141–42 (3d Cir. 2009) (en banc). Under
that procedure, district courts must (1) “continue to calculate a
defendant’s Guidelines sentence precisely as they would have
before Booker”; (2) rule on any departure motions, and
determine how any departure “affects the Guidelines
calculation”; and (3) impose a sentence after considering the
factors in 18 U.S.C. § 3553(a). Gunter, 585 F.3d at 247. By
contrast, we deal in this case solely with a question of

20
determining the step of the Application Instructions at which a
defendant’s “applicable guideline range” has been set, we can
identify the adjustments that come after that point (and thus do
not affect the “applicable guideline range”).

We relied on the Application Instructions in United
States v. Doe to determine the “applicable guideline range[s]”
for two defendants subject to mandatory minimum sentences of
life imprisonment, which exceeded their initial Guidelines
ranges of 151–188 and 121–151 months’ imprisonment,
respectively, calculated under the Crack Cocaine Guidelines.
564 F.3d at 308. The mandatory minimum sentence was not
applied to either defendant because each received a downward
departure from such a sentence under 18 U.S.C. § 3553(e) and
U.S.S.G. § 5K1.1 in exchange for their substantial assistance to
the Government. Id. After departing by several levels, the
District Court sentenced Jane Doe to 41 months’ imprisonment,
and John Doe to 84 months’ imprisonment. Id.

After Amendment 706 was made retroactive, both
defendants filed motions for a reduction of sentence. Id. The
Does contended that their “applicable guideline ranges” for

Guidelines interpretation (i.e., at what point a defendant’s
“applicable guideline range” has been set), and whether the
Application Instructions provide a clear answer to that question.
Moreover, as the Supreme Court has now ruled, Booker does not
apply in the § 3582(c)(2) context. See Dillon, 130 S. Ct. at
2692.

21
purposes of § 1B1.10 were the ranges calculated under the
Crack Cocaine Guidelines, as the District Court had relied on
those ranges to determine the extent of its departure under
§ 5K1.1.14 We rejected their argument, concluding that the
Does’ “applicable guideline range[s]” were the mandatory
minimum sentences, rather than their “initial” Guidelines ranges
under the Crack Cocaine Guidelines. Id. at 311.

In so holding, we looked to the Application Instructions
in § 1B1.1, which culminate in the following four steps:

(f) Determine the defendant’s criminal history
category as specified in Part A of Chapter Four.
Determine from Part B of Chapter Four any other
applicable adjustments.

(g) Determine the guideline range in Part A of

14
As Judge Fuentes noted in his concurring opinion in Doe,
our precedent “allows a district court to consider the seriousness
of a defendant’s offense—often reflected in the § 5A Guidelines
range [i.e., the range calculated under the Crack Cocaine
Guidelines]—in determining the extent of a substantial
assistance departure.” 564 F.3d at 315 (Fuentes, J., concurring)
(citing United States v. Casiano, 113 F.3d 420, 431 (3d Cir.
1997)). However, “[w]e are alone in this approach; all other
circuits to have addressed the issue have held that the maximum
extent of a substantial assistance departure may be based only on
the defendant’s substantial assistance.” Id. at 315 n.1.

22
 Chapter Five that corresponds to the offense level
and criminal history category determined above.

(h) For the particular guideline range, determine
from parts B through G of Chapter Five the
sentencing requirements and options related to
probation, imprisonment, supervision conditions,
fines, and restitution.

(i) Refer 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.

U.S.S.G. § 1B1.1(f)–(i).

The Does’ “initial” Guidelines ranges were determined
at step (g), based on the offense levels assigned them under the
Crack Cocaine Guidelines in § 2D1.1(c). However, step (h)
instructs a sentencing court to determine “the sentencing
requirements” for “the particular guideline range” by consulting
“parts B through G of Chapter Five,” which include application
of a mandatory minimum sentence under § 5G1.1. In turn,
§ 5G1.1(b) provides that, “[w]here a statutorily required
minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b)

23
(emphasis added). In that context, we concluded that (1) the
Application Instructions “specif[y] that applying a mandatory
sentence pursuant to § 5G1.1(b) [was] the last step in
determining the [Does’] . . . Guideline sentence”; and (2) the
Does’ “initial” advisory ranges under the Crack Cocaine
Guidelines had been essentially “‘subsumed and replaced’” at
step (h) by the mandatory minimum sentences. Id. at 311.

Thus, the implication of our reasoning in Doe is that a
defendant’s “applicable guideline range,” for purposes of
§ 1B1.10, has been set once a court finishes applying step (h),
and that any adjustment applied in step (i)—such as a substantial
assistance departure under § 5K1.1—has no effect on the
“applicable guideline range,” even if a court relied on the
defendant’s “initial” Guidelines range under the Crack Cocaine
Guidelines in determining the extent of such a departure.15

Though Doe did not involve a defendant who received a
downward departure under § 4A1.3 to the range calculated

15
Some of our sister circuit courts have reached the same
conclusion through a different analysis; i.e., because U.S.S.G.
§ 5G1.1(b) provides that the mandatory minimum sentence
becomes “the guideline sentence,” a defendant subject to a
mandatory minimum sentence is not sentenced “based on a
sentencing range” that subsequently could be lowered by the
Sentencing Commission, 18 U.S.C. § 3582(c)(2) (emphasis
added), and thus fails to satisfy the first requirement of
§ 3582(c)(2). See Cook, 594 F.3d at 886–87 (collecting cases).

24
under the Crack Cocaine Guidelines,16 our sister circuit courts
have similarly relied on the Application Instructions to
determine the point at which such a defendant’s “applicable
guideline range” has been determined. See United States v.
Tolliver, 570 F.3d 1062, 1065–66 (8th Cir. 2009). In Tolliver,
the Eighth Circuit Court held that a career offender who was re-
sentenced within the Crack Cocaine Guidelines range pursuant
to a stipulation between the parties was not eligible for a
sentence reduction because Amendment 706 did not have the

16
In his concurring opinion in Doe, Judge Fuentes expressed
concern that the majority had not distinguished the Does’
circumstances from “another category of defendants”—career
offenders who received downward departures under
§ 4A1.3—“whom some courts have ruled eligible for” a
sentence reduction. 564 F.3d at 318 (Fuentes, J., concurring)
(citing McGee, 553 F.3d 225) (emphasis omitted). However, as
we explain in greater detail below, there is no conflict between
our conclusion in this case and the result in Doe, as the
Guidelines are not similarly ambiguous as to the “applicable
guideline range” for a defendant subject to a mandatory
minimum sentence. In that light, we note that the First, Second,
and Fourth Circuits, which have concluded that a defendant in
Flemming’s position is eligible for a sentence reduction, have
also concluded (consistent with Doe) that a defendant subject to
a mandatory minimum sentence is not eligible for a sentence
reduction. See United States v. Roa-Medina, 607 F.3d 255,
258–61 (1st Cir. 2010); United States v. Hood, 556 F.3d 226,
235–36 (4th Cir. 2009); United States v. Williams, 551 F.3d 182,
185 (2d Cir. 2009).

25
effect of lowering his “applicable guideline range.” 570 F.3d at
1064–65. That stipulation followed the defendant’s 28 U.S.C.
§ 2255 motion, in which he argued that he should have received
a sentence within the Crack Cocaine Guidelines range (rather
than the Career Offender Guidelines range) “as originally
contemplated” by the parties in their plea agreement. Id. at
1064. The Government agreed not to oppose the defendant’s
motion, and stipulated to a sentence within the Crack Cocaine
Guidelines range. Id.

Citing our decision in Doe, the Eighth Circuit Court
concluded that (1) a defendant’s “applicable guideline range” is
determined at step (h) of the Application Instructions, and (2) a
court determines whether any departures are warranted at step
(i), after the “applicable guideline range” has already been set.
Id. at 1065–66 (citing Doe, 564 F.3d at 311). Apparently
concluding that Tolliver’s stipulated sentence reduction was
equivalent to a “departure” under the Guidelines (and applied at
step (i) of the Application Instructions), the Eighth Circuit
determined that his “applicable guideline range” remained the
Career Offender Guidelines range and was unaffected by the
stipulation.17 Id. at 1066–67. The Court suggested that this

17
In the alternative, the Court held that Tolliver was
ineligible for a sentence reduction because he failed to qualify
under the first requirement of § 3582(c)(2), i.e., his sentence was
“explicitly based on a stipulation between the parties, and not on
a sentencing range that had subsequently been lowered by the
Sentencing Commission.” 570 F.3d at 1067 (internal quotation

26
conclusion would apply equally with respect to career offenders
who received § 4A1.3 departures, and expressed disagreement
with the Second Circuit’s contrary conclusion in McGee.18 Id.
at 1066.

The Sixth and Tenth Circuit Courts have followed the
reasoning in Tolliver. See United States v. Pembrook, — F.3d
—, 2010 WL 2499656, at * 3–4 (6th Cir. June 11, 2010); United
States v. Darton, 595 F.3d 1191, 1194–95 (10th Cir. 2010).
According to these Circuit Courts, all departures provided for in
the Guidelines must be applied after the “applicable guideline
range” has been calculated, thus foreclosing the possibility of a
departure to the “applicable guideline range.” See Pembrook,
2010 WL 2499656, at *4; Darton, 595 F.3d at 1194.

The Fourth Circuit, however, has concluded that the
“plain text” of the Application Instructions compels the opposite
conclusion. Munn, 595 F.3d at 193–94.19 As the Munn Court

marks, citation, and alteration omitted).
18
The Eighth Circuit, based on its reasoning in Tolliver, has
now explicitly held that a career offender who receives a
§ 4A1.3 downward departure is not eligible for a sentence
reduction. See United States v. Blackmon, 584 F.3d 1115,
1116–17 (8th Cir. 2009).
19
Though the Second Circuit did not explicitly discuss the
Application Instructions in McGee, it nonetheless concluded that
the policy statement in § 1B1.10 is ambiguous as to whether a

27
points out, step (i) of the Application Instructions refers only to
departures contained in “Part K of Chapter Five,” U.S.S.G.
§ 1B1.1(i), such as a departure for substantial assistance under
§ 5K1.1. See Munn, 595 F.3d at 193 n.11. By contrast, step (f)
of the Instructions directs a sentencing court to apply “Part A of
Chapter Four”—which part includes the departure authorized
under § 4A1.3—before a “guideline range” is even mentioned
in the Application Instructions (at step (g)). See U.S.S.G.
§ 1B1.1(g); Munn, 595 F.3d at 192–93. Thus, unlike the
substantial assistance departure we considered in Doe, the
Application Instructions appear to direct sentencing courts to
apply a § 4A1.3 departure at step (f), two steps before a
defendant’s “applicable guideline range” has been set at step (h).

We agree with the Fourth Circuit that, under one
plausible reading of the Application Instructions, sentencing
courts are directed to apply § 4A1.3 departures at step (f).
Indeed, this seems to flow from common sense. Section 4A1.3
(as construed in Shoupe) and the career offender enhancement
in § 4B1.1 both may affect a defendant’s offense level and
criminal history category—and, as we reasoned in Shoupe,
because the “‘jump into the career offender category [is] done

reduced sentence is permissible “where the defendant’s pre-
departure sentencing range is found within the crack cocaine
guidelines.” 553 F.3d at 229 (emphasis in original).
In Cardosa, the First Circuit did not explicitly discuss the
Application Instructions or the policy statement in § 1B1.10.
606 F.3d 16.

28
in one step,’” permitting a departure in both offense level and
criminal history category under § 4A1.3 “is reasonable since the
district court [is] only undoing the one step.” 35 F.3d at 838
(quoting United States v. Bowser, 941 F.2d 1019, 1026 (10th
Cir. 1991)) (emphasis added). By contrast, a § 5K1.1 substantial
assistance departure does not “undo” any Guidelines application
decisions. Rather, that departure permits a court to set a
sentence outside the “applicable guideline range” based on “a
specific factor (the defendant’s cooperation) that was not
accounted for in the basic guidelines calculation.” Roa-Medina,
607 F.3d at 259.

Though we believe the Fourth Circuit’s reading of the
Application Instructions is plausible, we cannot conclude that
the Instructions unambiguously compel this conclusion, as it is
not entirely clear that step (f) encompasses a downward
departure under § 4A1.3. Section 4A1.3 is a policy statement,
and step (i) instructs sentencing courts to consider “any other
policy statements . . . in the guidelines that might warrant
consideration in imposing sentence.” U.S.S.G. § 1B1.1(i).
Thus, one could interpret the Application Instructions as
directing sentencing courts to apply a § 4A1.3 departure at the
final step (step (i)), after the “applicable guideline range” has
already been calculated. See Pembrook, 2010 WL 2499656, at
*5; Munn, 595 F.3d at 196–97 (Duncan, J., dissenting).

This competing interpretation of § 1B1.1 would be more
compelling if step (i) of the Application Instructions

29
encompassed the full universe of “other policy statements” in
the Guidelines “that might warrant consideration in imposing
sentence.” U.S.S.G. § 1B1.1(i). But that is not the case. For
example, step (h) of the Instructions specifically directs
sentencing courts to apply “parts B through G of Chapter Five”
of the Guidelines, which parts include several policy statements.
See U.S.S.G. § 5B1.3(c), (d), (e); § 5D1.3(c), (d), (e); § 5E1.5;
§ 5F1.7; § 5G1.3(c). Accordingly, step (i)’s reference to “other
policy statements” does not foreclose the possibility that step (f)
encompasses the downward departure authorized by the policy
statement in § 4A1.3.

In the end, we conclude that the Application Instructions
are ambiguous as to the step at which a sentencing court must
apply a § 4A1.3 downward departure. The Instructions do not
clearly require the departure to be applied after the “applicable
guideline range” is calculated (as the Sixth, Eighth, and Tenth
Circuits have concluded), nor do they clearly require the
departure to be applied before the “applicable guideline range”
is calculated (as the Fourth Circuit has concluded).20

20
We acknowledge that step (f) of the Application
Instructions—which directs sentencing courts to determine a
defendant’s “criminal history category as specified in Part A of
Chapter Four,” U.S.S.G. § 1B1.1(f) (emphasis added)—does not
expressly include the § 4A1.3 downward departure that
Flemming received, which also included a vertical downward
departure in offense level. However, the vertical downward
departure in offense level in Flemming’s case was the product

30
Accordingly, the Application Instructions do not, by themselves,
answer whether Flemming’s “applicable guideline range” is that

of a judicial interpretation of § 4A1.3 that the Sentencing
Commission may not have anticipated when it adopted that
provision. Cf. Shoupe, 35 F.3d at 838 (noting that “[t]he
language makes clear that an overstated criminal history triggers
departures under § 4A1.3, but does not make clear that such
departures are limited to the criminal history category”); see also
United States v. Sash, 396 F.3d 515, 523 (2d Cir. 2005) (noting
that “[a] Guideline may apply in situations not contemplated by
the background commentary to the Guideline”). Indeed, that the
Commission intended § 4A1.3 to authorize downward
departures in criminal history category only is confirmed by the
2003 amendment to § 4A1.3, which, as we discuss in Part
III.B.2, overrides our decision in Shoupe.
In any event, though the downward departure in both
offense level and criminal history category that Flemming
received (as a result of Shoupe) is not expressly contemplated by
the language of step (f), that does not answer whether the
Commission nonetheless intended that § 4A1.3 downward
departures be applied at that step. Cf. Munn, 595 F.3d at 192
(“Because of section 4A1.3’s placement . . . , the Commission
most likely intended for the court to grant an Overrepresentation
Departure before determining the applicable guideline range, as
part of its calculation of the criminal history category.”)
(emphasis in original).
The bottom line for us is this: we see nothing in the
Application Instructions that compels the conclusion that a
§ 4A1.3 downward departure must be applied at step (i) (the
final step) rather than step (f).

31
set by Crack Cocaine Guidelines or the Career Offender
Guidelines.

2. The 2003 Amendment to the § 1B1.1
Commentary

Our conclusion in Doe that the defendants’ “applicable
guideline range[s]” were the mandatory minimum sentences was
based not only on our reading of the Application Instructions,
but also on the Sentencing Commission’s commentary to the
policy statement in § 1B1.10, which strongly suggests that a
sentence reduction is not authorized where a defendant is
subject to a mandatory minimum sentence:

[A] reduction in the defendant’s term of
imprisonment is not authorized under 18 U.S.C.
§ 3582(c)(2) and is not consistent with this policy
statement if . . . [the retroactive amendment in
question] does not have the effect of lowering the
defendant’s applicable guideline range because of
the operation of another guideline or statutory
provision (e.g., a statutory mandatory minimum
term of imprisonment).

Doe, 564 F.3d at 312 (quoting U.S.S.G. § 1B1.10 cmt. 1(A))
(first omission, alteration, and emphasis in original).

32
 In concluding that a defendant in Flemming’s position is
not eligible for a sentence reduction, the Sixth, Eighth, and
Tenth Circuits relied heavily on a 2003 amendment to the
Guidelines, Amendment 651, that appears similarly to suggest
that a § 4A1.3 downward departure has no effect on a
defendant’s “applicable guideline range.” In particular,
Amendment 651 added, for the first time, an explicit definition
of the term “departure” to the Commentary to U.S.S.G. § 1B1.1:

“Departure” means (i) for purposes other than
those specified in subdivision (ii), imposition of
a sentence outside the applicable guideline range
or of a sentence that is otherwise different from
the guideline sentence; and (ii) 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 cmt. n. 1(E) (2003).

This new definition of “departure” appears to indicate
that a § 4A1.3 downward departure is a departure from, rather
than to, the “applicable guideline range,” as the commentary
now states that a § 4A1.3 downward departure is applied “in
order to effect a sentence outside the applicable guideline

33
range.” Id. (emphasis added). The Sixth, Eighth, and Tenth
Circuits seized on this definition to conclude that a § 4A1.3
departure has no effect on the “applicable guideline range” for
a career offender.21 See Tolliver, 570 F.3d at 1066 (citing the
21
The Sixth Circuit Court in Pembrook found further support
for its conclusion in the policy statement in § 1B1.10, which
includes an exception to the general rule that a defendant’s
sentence may not be reduced to a term of imprisonment “that is
less than the minimum of the amended guideline range,”
U.S.S.G. § 1B1.10(b)(2)(A), where 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,” id. § 1B1.10(b)(2)(B). In such a
circumstance, “a reduction comparably less than the amended
guideline range . . . may be appropriate.” Id.; Pembrook, 2010
WL 2499656, at *3 (reasoning that this provision “specifically
refers to the defendant’s applicable guideline range as the
guideline range that applied before the sentencing court decided
to depart . . . downward”).
We disagree. Section 1B1.10(b)(2)(B) sheds no light on
what a defendant’s “applicable guideline range” is in the context
of a § 4A1.3 departure; it simply provides that, where that range
has been lowered by a retroactive amendment to the Guidelines,
“a reduction comparabl[e]” to that which the defendant received
at his initial sentencing—e.g., a reduction for substantial
assistance under § 5K1.1—may be applied to the amended
Guidelines range. See McGee, 553 F.3d at 228. Nothing in
§ 1B1.10(b)(2)(B) forecloses the possibility that a § 4A1.3
downward departure, unlike other kinds of departures, is applied
in determining a defendant’s “applicable guideline range.”

34
definition of “departure” added in 2003 and concluding that the
Application Instructions “effectively define all departures to be
outside the ‘applicable guideline range’”); see also Pembrook,
2010 WL 2499656, at *4; Darton, 595 F.3d at 1194.

However, we agree with the Fourth Circuit that another
Guidelines provision not considered by the Sixth, Eighth, or
Tenth Circuits—§ 1B1.11—precludes us from considering the
2003 definition of “departure” in determining Flemming’s
eligibility for a sentence reduction. Section 1B1.11 provides
that

[t]he Guidelines Manual in effect on a particular
date shall be applied in its entirety. The court shall
not apply, for example, one guideline section
from one edition of the Guidelines Manual and
another guideline section from a different edition
of the Guidelines Manual. However, if a court
applies an earlier edition of the Guidelines
Manual, the court shall consider subsequent
amendments, to the extent that such amendments
are clarifying rather than substantive changes.

U.S.S.G. § 1B1.11(b)(2) (emphasis added). Flemming was
sentenced under the 2001 edition of the Guidelines.
Accordingly, we must consider Amendment 651 if it is a
“clarifying” amendment. Id. However, if the 2003 definition
makes a “substantive change[]” to the Guidelines, we may not

35
consider it. Id.; see also United States v. Marmolejos, 140 F.3d
488, 491 (3d Cir. 1998) (courts must determine whether an
amendment “clarified the existing commentary in the Guidelines
or substantively changed its meaning”) (emphases in original).

“Generally, if [an] amended guideline and commentary
overrule[] a prior judicial construction of the guidelines, it is
substantive; if it confirms our prior reading of the guidelines and
does not disturb prior precedent, it is clarifying.” United States
v. Diaz, 245 F.3d 294, 303 (3d Cir. 2001). We recently held that
Amendment 651 overrides our holding in Shoupe because, as a
result of the new definition of “departure,” § 4A1.3 now
authorizes a departure in criminal history category only.22 See
Grier, 585 F.3d at 143. Thus, because the 2003 definition
worked a substantive change in the law, i.e., it overruled our
interpretation of § 4A1.3 in Shoupe, Amendment 651 is a
substantive amendment that we may not consider in determining
whether Flemming is eligible for a sentence reduction.23 Accord
22
Thus, had Flemming been sentenced under a post-2003
edition of the Sentencing Guidelines, he could not have received
the horizontal and vertical downward departure that the District
Court granted him at sentencing; rather, he would have been
eligible to receive (at most) a one-level downward departure in
criminal history category. See U.S.S.G. § 4A1.3(b)(3)(A).
23
This conclusion holds even if Amendment 651 were
intended by the Sentencing Commission to be clarifying. See,
e.g., United States v. Goines, 357 F.3d 469, 474 (4th Cir. 2004)
(“Even if an amendment is designed merely to elucidate the

36
Munn, 595 F.3d at 194 (noting that Amendment 651 “did more
than simply clarify the Guidelines: [i]t effected a significant
change in the law of this and nearly every other circuit”).
Importantly, both the Government and Flemming agreed at oral
argument that the 2003 definition of “departure” is a substantive
amendment for purposes of U.S.S.G. § 1B1.11.

In that light, we find the Sixth, Eighth, and Tenth
Circuit’s reasoning unpersuasive. In Tolliver, the Eighth Circuit
did not explain why it was authorized to consider the 2003
definition of “departure,” given that the defendant in that
case—like Flemming and the defendants in Munn, McGee, and
Cardosa—was sentenced under a pre-2003 edition of the
Sentencing Guidelines.24 See Munn, 595 F.3d at 193 n.12. The
defendant in the Sixth Circuit’s Pembrook decision was also

original intent of the Commission, we will regard it as
substantive if it conflicts with our precedent.”); see also United
States v. Cianscewski, 894 F.2d 74, 78 n.13 (3d Cir. 1990) (“We
do not suggest that the Sentencing Commission, by declaring
that substantive changes are intended merely as clarifications,
can amend the guidelines retroactively.”).
24
The Tenth Circuit Court also relied on the 2003 definition
of “departure” in its Darton decision, though it is unclear which
edition of the Guidelines was used when the defendant in that
case was sentenced. See 595 F.3d at 1196 (noting that the
defendant pled guilty to possession with intent to distribute
crack cocaine in November 2005, but not identifying the edition
of the Guidelines used at sentencing).

37
sentenced under a pre-2003 version of the Sentencing
Guidelines. See Pembrook, 2010 WL 2499656, at *1. But
though the Sixth Circuit Court acknowledged the Fourth Circuit
Court’s conclusion that the 2003 definition of “departure” could
not be considered in those circumstances, it (the Sixth Circuit)
nonetheless emphasized, without providing any basis for
rejecting the Munn Court’s conclusion, that § 4A1.3 “[i]n its
present form” makes clear that a downward departure under that
provision is one from the “applicable guideline range.” 25 Id. at
*4–5.

3. The 2001 Version of § 4A1.3

Not only are we precluded from considering the 2003
definition of “departure,” the 2001 version of § 4A1.3, which
lacked any such definition, appears to differ materially from the
2003 version with respect to what constitutes a defendant’s
“applicable guideline range” following a departure under that
provision. The 2001 version of § 4A1.3 provides in relevant
part:

If reliable information indicates that the criminal
history category does not adequately reflect the
seriousness of the defendant’s past criminal
25
Moreover, we note that the dissenter in Munn expressed no
disagreement with the majority’s conclusion that U.S.S.G.
§ 1B1.11 precluded the Court from considering the definition of
“departure” added in 2003.

38
 conduct or the likelihood that the defendant will
commit other crimes, the court may consider
imposing a sentence departing from the otherwise
applicable guideline range.

U.S.S.G. § 4A1.3 (2001) (emphasis added). The majority in
Pembrook and the dissenter in Munn concluded that § 4A1.3’s
reference to “imposing a sentence departing from the otherwise
applicable guideline range” conveys the same meaning as the
2003 definition of “departure,” i.e., that a § 4A1.3 departure
does not affect a defendant’s “applicable guideline range.”
Pembrook, 2010 WL 2499656, at *4; Munn, 595 F.3d at 196
(Duncan, J., dissenting).

We disagree. To us, this language facially supports the
conclusion that a defendant’s “applicable guideline range” is set
after a downward departure under § 4A1.3. That is, under the
plain meaning of the word “otherwise,” § 4A1.3 appears to
contemplate that a new “applicable guideline range” results from
a downward departure pursuant to that provision, replacing the
“otherwise applicable guideline range.” See United States v.
Mobley, 956 F.2d 450, 452 (3d Cir. 1992) (“We construe terms
of the Guidelines according to their plain meaning.”); see also
Webster’s Third New Int’l Dictionary 1598 (1971) (the
definitions of the adverb “otherwise” include “in a different way
or manner,” “in different circumstances,” and “under other
conditions”). Were that not the case, the word “otherwise”
would be meaningless, as the contrary interpretation equally

39
would make sense if § 4A1.3 provided that a court may depart
“from the applicable guideline range.” Cf. Acceptance Ins. Co.
v. Sloan, 263 F.3d 278, 283 (3d Cir. 2001) (“[It is an] axiom of
statutory construction that whenever possible each word in a
statutory provision is to be given meaning and not to be treated
as surplusage.” (internal quotation marks and citation omitted)).

This reading of the 2001 version of § 4A1.3 is bolstered
when we compare its text to provisions in Chapter Five of the
Guidelines. The provisions in Parts H through K of Chapter
Five—which courts must consider at the final step of the
Application Instructions (step (i))—set forth the circumstances
in which a court may impose a sentence “outside” or “below”
“the applicable guideline range.” See U.S.S.G. §§ 5H1.1–6,
11–12, 5K2.0, 5K2.12, 5K2.13, 5K2.16, 5K2.20 (2001). By
contrast, the 2001 version of § 4A1.3 refers to a departure “from
the otherwise applicable guideline range,” presumably
contemplating that the range that results from a § 4A1.3
departure “‘subsumes and displaces the otherwise applicable
guideline range,’” Doe, 564 F.3d at 311 (quoting United States
v. Cordero, 313 F.3d 161, 162 (3d Cir. 2002)) (emphasis added),
and thus becomes “the applicable guideline range.” Applying
this reading to Flemming’s situation, the Career Offender
Guidelines range was his “otherwise applicable guideline
range,” but was replaced by the Crack Cocaine Guidelines range
as a result of the § 4A1.3 downward departure.

40
 This interpretation has some surface appeal. We note,
however, that numerous variations of the term “guideline
range,” of which “otherwise applicable guideline range” appears
to be one, appear in other departure provisions located in Part K
of Chapter Five. These variations include “the range established
by the applicable guidelines,” U.S.S.G. § 5K2.0 (2001), “the
authorized guideline range,” id. §§ 5K2.1–7, “the guideline
range,” id. §§ 5K2.8–10, 5K2.14, and, more simply, “the
guidelines,” id. § 5K1.1. Other provisions in Part K make no
reference to a “guideline range” or the “applicable guideline
range,” instead simply noting the circumstances that might
warrant an upward or downward “departure,” id. §§ 5K2.17–19,
or “a reduced sentence,” id. § 5K2.11. It is undisputed that
these departures are all applied at the final step of the
Application Instructions and, when applied, result in a sentence
outside the “applicable guideline range.” However, that these
provisions do not employ the term “the applicable guideline
range” in describing such a departure may suggest that, though
the Guidelines do not use consistent terminology to describe the
range from which a sentencing court may depart in the final
step, this fact does not necessarily suggest that any particular
variation was intended to be dispositive, or even have
significance, with regard to a defendant’s eligibility for a
sentence reduction under § 1B1.10.

In sum, we conclude that the text of the 2001 version of
§ 4A1.3, like the Application Instructions, fails to answer

41
unambiguously whether Flemming’s “applicable guideline
range” is his pre- or post-§ 4A1.3 departure range.

4. The Rule of Lenity

The rule of lenity provides that “when ambiguity in a
criminal statute cannot be clarified by either its legislative
history or inferences drawn from the overall statutory scheme,
the ambiguity is resolved in favor of the defendant.” United
States v. Pollen, 978 F.2d 78, 85 (3d Cir. 1992). The rule covers
criminal prohibitions as well as penalties, see Mobley, 956 F.2d
at 452 (citing Bifulco v. United States, 447 U.S. 381 (1980)),
and applies to the Sentencing Guidelines. See United States v.
Fenton, 309 F.3d 825, 828 n.3 (3d Cir. 2002) (“[W]here . . . the
[Sentencing] Guidelines do not clearly call for enhancement, the
rule of lenity should prevent the application of a significantly
increased sentence.”); see also United States v. Simpson, 319
F.3d 81, 87 (2d Cir. 2002) (noting that “the rule of lenity is
generally applicable to the Sentencing Guidelines”).26

26
We note that two members of the Eleventh Circuit Court
are of the view that the rule of lenity is inapplicable to the
Sentencing Guidelines after Booker. See United States v.
Wright, 607 F.3d 708, 719 (11th Cir. 2010) (Pryor, J., and Fay,
J., concurring) (arguing that “the purposes of the rule of lenity
suggest that it plays no role in the interpretation of advisory
guidelines”) (emphasis added). Though our Court has not (until
today) had occasion to apply the rule of lenity to the Guidelines
since Booker, we nonetheless have addressed rule-of-lenity

42
 Application of the rule of lenity requires more than a
difficult interpretative question. Rather, “[t]o invoke the rule,
we must conclude that there is a grievous ambiguity or
uncertainty in the statute.” Muscarello v. United States, 524
U.S. 125, 138–39 (1998) (internal quotation marks and citation
omitted) (emphasis added); see also Chapman, 500 U.S. at 463.
As discussed, we believe the Guidelines are “grievous[ly]
ambiguous [and] uncertain[]” as to whether Flemming’s
“applicable guideline range” is his pre- or post-§ 4A1.3
departure range. Muscarello, 524 U.S. at 139. Because both
interpretations are plausible, we apply the rule of lenity and
resolve the ambiguity in Flemming’s favor. See United States
v. Oetken, 241 F.3d 1057, 1060 (8th Cir. 2001) (“Where there
are two plausible readings of a guideline provision, we apply the

arguments without suggesting that the rule does not apply to the
now-advisory Guidelines. See, e.g., Doe, 564 F.3d at 314–15;
United States v. Lennon, 372 F.3d 535, 539–40 (3d Cir. 2004).
In any event, we need not decide in this case whether the rule of
lenity is generally applicable to the Sentencing Guidelines post-
Booker because (1) the Government has raised no such
argument, and (2) here we are faced with interpreting provisions
of the Guidelines that are not advisory. See Dillon, 130 S. Ct.
at 2694 (holding that Booker does not affect the binding nature
of the Sentencing Commission’s policy statement in § 1B1.10,
which “permits a sentence reduction within the narrow bounds
established by the Commission”). In that light, we are bound to
apply our pre-Booker caselaw, which makes clear that the rule
of lenity may apply to mandatory provisions of the Sentencing
Guidelines. See, e.g., Fenton, 309 F.3d at 828 n.3.

43
rule of lenity and give the defendant the benefit of the reading
that results in the shorter sentence.”); see also Bifulco v. United
States, 447 U.S. 381, 387 (1980) (“[T]he touchstone of the rule
of lenity is statutory ambiguity.” (internal quotation marks and
citation omitted)). We join the Second Circuit in this regard.
See McGee, 553 F.3d at 229 (applying the rule of lenity while
acknowledging that “U.S.S.G. § 1B1.10 can be read to permit a
reduced sentence only where the defendant’s pre-departure
sentencing range is found within the crack cocaine guidelines”)
(emphasis in original); see also Pembrook, 2010 WL 2499656,
at *9 (Rogers, J., dissenting) (arguing that application of the rule
of lenity is appropriate in these circumstances, as “there is no
compelling reason to read the phrase ‘applicable guideline
range’ to exclude the Guideline range that the district court
actually applied to [the defendant]”).

Though the 2003 definition of “departure” may resolve
this ambiguity, Flemming was sentenced under the 2001 edition
of the Sentencing Guidelines, and Amendment 651 is a
substantive amendment that we may not consider. In any event,
the Sentencing Commission’s decision in 2003 to add a uniform
definition of “departure” to the Guidelines—which includes a
definition specific to § 4A1.3—only bolsters our conclusion
that, at least prior to 2003, what constituted the “applicable
guideline range” for a career offender granted a downward

44
departure under § 4A1.3, and sentenced based on the Crack
Cocaine Guidelines range, was, at best, quite unclear.27

27
As noted, the Fourth Circuit concluded that the “plain text”
of § 1B1.1 unambiguously directs sentencing courts to apply a
§ 4A1.3 departure at step (f) of the Application Instructions.
Munn, 595 F.3d at 194. It suggested further that, were it
authorized to consider the 2003 definition of “departure,” the
“Guidelines would be rendered ambiguous on this point, as the
Application Instructions indicate that [a § 4A1.3] departure is to
be made before calculating the applicable guideline range, while
the commentary to those instructions—through its loose usage
of the phrase ‘applicable guideline range’—arguably suggests
otherwise.” Id. The Court concluded that, “in the face of any
such ambiguity, [it] would be obliged to apply the rule of lenity
and resolve the conflict in the defendant’s favor.” Id. (emphasis
in original).
Because the question is not before us, we do not decide
whether a career offender granted a § 4A1.3 downward
departure under a post-2003 edition of the Sentencing
Guidelines would be eligible for a sentence reduction under 18
U.S.C. § 3582(c)(2). However, in light of our conclusion that
the Application Instructions are ambiguous as to the “applicable
guideline range” for a defendant in Flemming’s position, we
have doubts that the 2003 definition—in a case where it may be
considered—results in a “grievous ambiguity” requiring
invocation of the rule of lenity. Rather, to the extent the 2003
definition provides clearer guidance as to the “applicable
guideline range” for a defendant granted a § 4A1.3 departure,
we may be required to treat that guidance as authoritative, as it
does not appear to be “inconsistent with, or a plainly erroneous

45
 We reach this result aware not only of the general
policies behind retroactive amendments to the Sentencing
Guidelines, but also the particular policy underlying
Amendment 706. Cf. Moskal v. United States, 498 U.S. 103,
108 (1990) (noting that courts may consult the “motivating
policies of the statute” in determining whether application of the
rule of lenity is warranted (internal quotation marks and citation
omitted)). The Sentencing Reform Act of 1984, 98 Stat. 1987,
charged the Sentencing Commission with periodically reviewing
and revising the Guidelines, and, where warranted, authorized
the Commission to reduce retroactively the offense levels for
certain crimes. See 28 U.S.C. §§ 994(o), 994(u); see also 18
U.S.C. § 3582(c). When the Commission first promulgated the
Guidelines in 1987, it adopted offense levels for cocaine
offenses that “treated every gram of crack cocaine as the
equivalent of 100 grams of powder cocaine.” Kimbrough v.
United States, 552 U.S. 85, 96 (2007). The Commission later
attempted to alleviate this disparity and, after Congress
repeatedly failed to act, id. at 99, the Commission adopted
Amendment 706 to address what it believed were “urgent and
compelling” problems with the 100-to-1 ratio. U.S.S.G. app. C,
amend. 706, Reason for Amendment (2007).

There is no dispute that Flemming was burdened by the
very crack/powder cocaine disparity that the Sentencing
Commission sought to remedy by promulgating Amendment 706

reading of,” the Guidelines. Stinson v. United States, 508 U.S.
36, 38 (1993).

46
and making it retroactive. As noted, had Amendment 706 been
in force when Flemming was sentenced, we have little doubt the
District Court would have set a sentence within that range. In
these circumstances, we believe that rendering a defendant
ineligible for a sentence reduction—simply because he
technically qualified as a career offender, and despite a District
Court’s reasoned judgment that such a classification was
inappropriate because it overstated the seriousness of his
criminal history (in Flemming’s case, because his two predicate
offenses resulted in modest prison sentences and were
committed when he was 18 and 20-years old)—is antithetical to
the policy concerns that motivated Amendment 706. See
Cardosa, 606 F.3d at 21; Munn, 595 F.3d at 195; McGee, 553
F.3d at 229–30.

* * * * *

Application of the rule of lenity is called for only in rare
cases, and thus we stress the narrowness of our holding. We
conclude that, under a pre-2003 edition of the Sentencing
Guidelines, a career offender who is granted a § 4A1.3
downward departure to the Crack Cocaine Guidelines range is
eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).
Accordingly, we vacate the District Court’s order and remand
this case for the Court to exercise its discretion to determine
whether, and to what extent, a reduction in Flemming’s sentence
is warranted.

47