[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-11760 AUGUST 5, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 06-00166-CR-ORL-19JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREA MILLS,
Defendant-Appellant.
________________________
No. 08-11797
________________________
D. C. Docket No. 06-00180-CR-ORL-31-DABS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA L. BROWN,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(August 5, 2010)
Before TJOFLAT, EDMONDSON and HILL, Circuit Judges.
TJOFLAT, Circuit Judge:
In separate appeals, which we have consolidated because they raise the same
issue, Andrea Mills and Joshua Brown (collectively “Defendants”) appeal the denial
of their motions for reduction of sentence under 18 U.S.C. § 3582(c)(2).1 Finding
that in both cases, Defendants’ statutory mandatory minimum sentences left the
district courts without jurisdiction to hear their sentence reduction motions, we
affirm the district courts’ judgments.
We begin with a brief recitation of Mills’s and Brown’s respective
circumstances.
I.
1
Different Middle District of Florida judges sentenced Mills and Brown and denied their §
3582(c)(2) motions. Although they raise the same legal issue here, their cases are factually
unrelated. We originally consolidated their appeals only for oral argument, but because we find
no significant distinction between the arguments they present, we dispose of their appeals in one
opinion. See, e.g., United States v. Moore, 541 F.3d 1323, 1325 (11th Cir. 2008) (consolidating
five defendants’ appeals from denials of sentence reduction motions for unrelated crack cocaine
offenses); see also Fed. R. App. P. 3(b)(2).
2
A.
Mills and a codefendant were caught in a sting operation selling cocaine base
(“crack cocaine”) to a confidential source and indicted for conspiracy to possess
with intent to distribute 50 or more grams of crack cocaine and possession with
intent to distribute crack cocaine. See 21 U.S.C. §§ 841(b)(1)(A)(iii), 846. Mills
pled guilty. The district court’s probation office prepared a Presentence
Investigation Report (“PSI”) attributing Mills with a total of 82.6 grams of crack
cocaine, which, under the version of the United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) then in effect, gave Mills a base offense level of 32.
U.S.S.G. § 2D1.1(c)(4) (2006).2 Mills’s base offense level was then reduced by two
2
When referring to the Guidelines provisions under which the calculations in Defendants’ PSIs
were made, we use the 2006 version of the Sentencing Guidelines manual, which was in effect at
the time Defendants were sentenced. See U.S.S.G. § 1B1.11(a) (2006) (“The court shall use the
Guidelines Manual in effect on the date that the defendant is sentenced.”). Defendants base their
arguments for sentence reduction largely on U.S.S.G. § 1B1.10(b)(2) (2008). Section 1B1.10
was altered by Amendment 712 to the Guidelines manual, which became effective March 3,
2008; § 1B1.10(b)(2) did not exist in the 2006 Guidelines manual under which Defendants were
sentenced. See U.S.S.G. App. C, amend. 712 (Supp. Mar. 3, 2008) (amending § 1B1.10).
Ordinarily, a court must use only one version of the Guidelines under the “one book
rule,” and must apply that version in its entirety. U.S.S.G. § 1B1.11(b)(2) (2006); United States
v. Bailey, 123 F.3d 1381, 1403–04 (11th Cir. 1997). An exception provides, however, that a
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) (2006). We have not articulated a
specific test to determine whether an amendment is clarifying or substantive, but the Sixth
Circuit has: “[H]ow the Sentencing Commission characterized the amendment; whether the
amendment changes the language of the guideline itself or changes only the commentary for the
guideline; and whether the amendment resolves an ambiguity in the original wording of the
guideline.” United States v. Monus, 356 F.3d 714, 718 (6th Cir. 2004) (quoting United States v.
Hartz, 296 F.3d 595, 599 (7th Cir. 2002)) (footnotes omitted).
3
levels because she received a mitigating role adjustment for her participation in the
conspiracy. U.S.S.G. § 2D1.1(a)(3) (2006).3 Three levels were then deducted for
We are unable to find a published case, in this or any other federal circuit, that has held
whether Amendment 712 effected a substantive or a clarifying change to § 1B1.10. The
language accompanying Amendment 712, however, implies that the Sentencing Commission
intended it to be clarifying. Amendment 712 was adopted to guide courts in preparing for the
onslaught of § 3582(c)(2) motions expected after Amendment 713 (which took effect the same
day as Amendment 712) retroactively applied Amendment 706, reducing base offense levels for
crack cocaine offenses. See U.S.S.G. App. C, amend. 713 (Supp. Mar. 3, 2008) (“[T]he
Commission’s analysis of cases potentially eligible for retroactive application of Amendment
706 . . . indicates that the number of cases potentially involved is substantial.”). Amendment
712 explains that it makes modifications to § 1B1.10 “to clarify when, and to what extent, a
reduction in the defendant’s term of imprisonment is consistent with the policy statement.” Id.
amend. 712. Further, subsection (b)(2) “provides further clarification that the court shall not
reduce the defendant’s term of imprisonment to a term that is less than the minimum of the
amended guideline range,” except that a proportionate reduction may be appropriate if the
defendant originally received a below-Guidelines sentence. Id. The amendment “clarifies that
in no event may the reduced term of imprisonment be less than the term of imprisonment the
defendant has already served” and adds examples “illustrating the limitations on the extent to
which a court may reduce a defendant’s term of imprisonment.” Id. Lastly, the amendment
“modifies Application Note 1 to delineate more clearly factors for consideration by the court in
determining whether, and to what extent, a reduction in the defendant’s term of imprisonment is
warranted,” and “makes conforming changes” to § 1B1.10’s application notes and background
commentary. Id.
These examples lead us to have the idea, in light of Monus, that Amendment 712 is more
of a clarifying, rather than substantive, amendment. Because we affirm the district courts’
judgments on other grounds, we assume, for this case only, that Amendment 712 is a clarifying
amendment and that Defendants’ argument, based as it is on U.S.S.G. § 1B1.10(b)(2) (2008),
does not violate the one book rule of § 1B1.11.
3
This provision reads, in relevant part:
§2D1.1. Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy
(a) Base Offense Level (Apply the greatest):
....
(3) the offense level specified in the Drug Quantity Table set forth in subsection
4
Mills’s role-in-the-offense adjustment, U.S.S.G. § 3B1.2(a)&(b) (2006),4 and three
further levels were deducted for her acceptance of responsibility, U.S.S.G. §
3E1.1(a)&(b) (2006), resulting in a total offense level of 24.
Mills’s prior criminal activity resulted in a criminal history category of III.
Based on her total offense level and criminal history category, the PSI
recommended a sentencing range of 63 to 78 months’ imprisonment. Because Mills
was subject to a mandatory minimum sentence of 10 years for her violation of §
841(b)(1)(A)(iii), however, her effective (or “applicable”) Guidelines sentencing
range became a fixed term of imprisonment, 120 months. See U.S.S.G. § 5G1.1(b)
(2006) (“Where 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.”).
At sentencing, the Government moved for, and the district court granted, a
departure below the statutory minimum due to Mills’s substantial assistance to the
Government. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1 (2006). The court
(c), except that if (A) the defendant receives an adjustment under §3B1.2
(Mitigating Role); and (B) the base offense level under subsection (c) is (i) level
32, decrease by 2 levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii)
level 38, decrease by 4 levels.
U.S.S.G. § 2D1.1 (2006).
4
The PSI recommended, and the district judge found, that Mills was between a minimal and
minor participant in the conspiracy. Mills, therefore, received a three-level adjustment for her
role in the offense. U.S.S.G. § 3B1.2(a)–(b) (2006).
5
departed downward by two levels to a total offense level of 22. Mills’s new
sentencing range became 51 to 63 months’ imprisonment, and the district court
sentenced her to 51 months, followed by five years of supervised release.
B.
Brown, like Mills, was caught in a sting operation in which he and a
codefendant sold crack cocaine to a confidential informant.5 They were indicted for
one count of conspiracy to possess with intent to distribute 50 or more grams of
crack cocaine, 21 U.S.C. § 846, and one count of knowingly and intentionally
aiding and abetting the possession with intent to distribute and distribution of 50
grams or more of crack cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 18 U.S.C. §
2. Brown pled guilty to the second count, and the Government dismissed the first
count.
Brown’s PSI attributed him with 120.2 grams of crack, resulting in a base
offense level of 32 under the crack cocaine Guideline then in effect, U.S.S.G. §
2D1.1(c)(4) (2006). Like Mills, Brown received a mitigating role reduction for his
participation in the conspiracy, though unlike Mills, he received only a two-level
reduction as a minor participant. Id. § 3B1.2(b). This reduced Brown’s base
offense level by two levels. Id. § 2D1.1(a)(3). Two levels were then deducted for
5
Neither Mills’s nor Brown’s codefendants are involved in this appeal.
6
Brown’s minor role reduction, and three further levels were deducted for Brown’s
acceptance of responsibility, id. § 3E1.1(a)&(b), resulting in a total offense level of
25.
Brown’s prior criminal activity yielded a criminal history category of III. At
sentencing, the district court found that category III substantially overrepresented
the seriousness of Brown’s criminal history or the likelihood that he would commit
other crimes, and departed downward to a criminal history category of II. Id.
§ 4A1.3(b)(1). Based on Brown’s total offense level and criminal history category,
the PSI recommended a sentencing range of 70 to 87 months’ imprisonment. Like
Mills, however, Brown’s effective (or “applicable”) Guidelines sentencing range
became set at 120 months because he too faced a statutory mandatory minimum
sentence under § 841(b)(1)(A)(iii).
At sentencing, the district court rewarded Brown for his substantial assistance
to the Government by departing 6 levels downward from the statutory mandatory
minimum. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1 (2006). Brown thus
received a total of 13 levels’ downward departure from his originally calculated
base offense level. With a new offense level of 19, and a criminal history category
of II, Brown’s Guidelines sentencing range became 33 to 41 months’ imprisonment.
The district court sentenced Brown at the bottom of the range, to 33 months,
7
followed by three years of supervised release.
C.
The district court entered judgment in Mills’s case on May 7, 2007. On
January 31, 2008, the court ordered Mills and the Government to address the
possible retroactive application of an amendment to the crack cocaine Guideline.
See infra part II. Mills, through counsel, contended that she was eligible for a
reduction in her sentence due to the retroactive application of this amendment. The
Government opposed the reduction, arguing that the amendment did not apply to
Mills and, accordingly, the district court lacked authority to reduce Mills’s
sentence. The district court agreed with the Government, ruling on March 24, 2008,
that it lacked jurisdiction to modify Mills’s sentence. The court labeled this result
“nonsensical,” however, because although “the Sentencing Commission sought to
provide additional relief to offenders such as Mills who played a relatively minor
role in a conspiracy involving a relatively large quantity of drugs” by “reduc[ing]
the large disparity in sentencing between crack offenders and cocaine offenders,”
the combined effects of the amendment and 18 U.S.C. § 3582(c)(2) left the court
without jurisdiction to adjust Mills’s sentence. The court suggested that this
“arbitrary” result “deserv[ed] attention by the Sentencing Commission.”
The district court entered judgment in Brown’s case on May 9, 2007. On
8
February 13, 2008, the court ordered Brown and the Government to address the
possible retroactive application of the crack cocaine amendment. Brown contended
he was eligible for a sentence reduction, while the Government made much the
same argument it did in Mills’s case. The district court agreed with the
Government, ruling on March 26, 2008, that the relevant amendments did not lower
the sentencing range on which Brown’s sentence was based, and therefore, that the
court lacked authority under § 3582(c)(2) to reduce Brown’s sentence.
Defendants timely appealed the district courts’ denials of their motions for
sentence reduction. We have jurisdiction under 28 U.S.C. § 1291.
II.
We review de novo the district court’s legal conclusions about its jurisdiction
under the Sentencing Guidelines. United States v. Davis, 587 F.3d 1300, 1303
(11th Cir. 2009) (per curiam) (citing United States v. Jones, 548 F.3d 1366, 1368
(11th Cir. 2008)). Our review of the district court’s decision not to reduce a
sentence under 18 U.S.C. § 3582(c)(2) is for abuse of discretion. Id. (citing Jones,
548 F.3d at 1368 n.1).
Effective November 1, 2007, the United States Sentencing Commission
implemented Amendment 706 to the Guidelines, which lowered by two levels the
base offense levels in U.S.S.G. § 2D1.1 applicable to crack cocaine offenses.
9
Amendment 713, which became effective March 3, 2008, made Amendment 706
retroactive to defendants with crack cocaine convictions who were sentenced under
U.S.S.G. § 2D1.1. See U.S.S.G. App. C, amends. 706, 713 (Supp. Mar. 3, 2008).6
The Sentencing Commission adopted these amendments to attempt to mitigate the
hundred-fold sentencing disparity between defendants convicted of crack cocaine
offenses and those convicted of powder cocaine offenses. See id. amend. 706
(“Reason for Amendment”).
Ordinarily, a district court may not modify a previously imposed sentence
“except in specific circumstances delineated in 18 U.S.C. § 3582(c).” United States
v. Williams, 549 F.3d 1337, 1339 (11th Cir. 2008) (per curiam). Section 3582(c)
provides, in relevant part, that
[t]he court may not modify a term of imprisonment once it has been
imposed except that
....
(2) in 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 pursuant to 28 U.S.C. [§]
994(o), 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 [18 U.S.C. §]
3553(a) to the extent that they are applicable, if such a reduction is
6
Amendment 706 was itself amended by Amendment 711, which made technical changes to
Amendment 706 and amended the commentary to U.S.S.G. § 2D1.1. See U.S.S.G. App. C,
amend. 711 (Supp. Mar. 3, 2008). Throughout this opinion, any reference to Amendment 706
also refers to the changes contained in Amendment 711.
10
consistent with applicable policy statements issued by the Sentencing
Commission.
18 U.S.C. § 3582(c). That is, “[w]hen the Guidelines range pursuant to which a
prisoner has been sentenced is subsequently lowered, a prisoner [or the court sua
sponte] may move for a reduction in sentence in accordance with that
modification.” Davis, 587 F.3d at 1303.
The Sentencing Guidelines manual provides further guidance on how courts
should determine § 3582(c)(2) reductions:
In a case in which a defendant is serving a term of imprisonment, and
the guideline range applicable to that defendant has subsequently been
lowered as a result of an amendment to the Guidelines Manual listed in
subsection (c) below, the court may reduce the defendant’s term of
imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by
18 U.S.C. § 3582(c)(2), any such reduction in the defendant’s term of
imprisonment shall be consistent with this policy statement.
U.S.S.G. § 1B1.10(a)(1), p.s. (2008).7 To determine whether, and to what extent,
such a reduction is warranted,
the court shall determine the amended guideline range that would have
been applicable to the defendant if the amendment(s) to the guidelines
listed in subsection (c) had been in effect at the time the defendant was
sentenced. In making such determination, the court shall substitute
only the amendments listed in subsection (c) for the corresponding
guideline provisions that were applied when the defendant was
sentenced and shall leave all other guideline application decisions
unaffected.
7
Amendment 706 is listed in U.S.S.G. § 1B1.10(c), and is hence subject to the policy statement
in § 1B1.10(b)(1).
11
Id. § 1B1.10(b)(1). Further, “[i]f the original term of imprisonment imposed was
less than the term of imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing, a reduction comparably less than the amended
guideline range determined under [§ 1B1.10(b)(1)] may be appropriate.” Id. §
1B1.10(b)(2)(B). The manual cites as an example a defendant whose original
Guidelines sentencing range was 70 to 87 months’ imprisonment but who received
a 56-month sentence—a twenty percent downward departure from the bottom of the
sentencing range. If that defendant’s sentencing range became 57 to 71 months
after an amendment, the sentencing court could deem a 46-month sentence—again,
approximately a twenty percent downward departure from the bottom of the
sentencing range—appropriate. Id. § 1B1.10, comment. (n.3).
If, however, the original sentence was based on something other than offense
level calculations under § 2D1.1 (i.e., a statutory mandatory minimum or a career
offender classification), an amendment may not affect the sentencing range, and the
defendant would be ineligible for a reduction under § 3582(c)(2). See U.S.S.G. §
1B1.10(a)(2)(B) (2008); United States v. Moore, 541 F.3d 1323, 1327 (11th Cir.
2008) (affirming the district courts’ denials of sentence reduction where the
defendants’ sentencing ranges were based on their career offender designations).
When a statutory mandatory minimum is greater than the otherwise-
12
applicable Guidelines sentencing range, “the statutorily required minimum sentence
shall be the guideline sentence.” U.S.S.G. § 5G1.1(b) (2008); Williams, 549 F.3d at
1341 (“For those situations in which the mandatory minimum exceeds the range for
the entire offense level, the ‘guideline sentence’ would . . . be the same as the
‘guideline range,’ even if it involves a ‘range’ of only one number.”). Other circuits
to consider the issue have held that “when a defendant’s crime triggers a statutory
minimum sentence exceeding his guideline range, the resulting sentence is ‘based
on’ the statutory minimum, not the guideline range,” even where the defendant has
received a downward departure for substantial assistance. United States v. Carter,
595 F.3d 575, 578 (5th Cir. 2010) (per curiam) (citing United States v. Hood, 556
F.3d 226, 233 (4th Cir. 2009)). The Fourth Circuit explained that
[b]ecause Amendment 706 did not amend the authority conferred by
§ 3553(e), nor the authority conferred by U.S.S.G. § 5K1.1
implementing § 3553(e), the Amendment was irrelevant to the
reduction of Hood’s sentence. Amendment 706 amended U.S.S.G.
§ 2D1.1, but that section is not made applicable to and does not
authorize a reduction of sentences for substantial assistance under
§ 3553(e) and U.S.S.G. § 5K1.1. In short, Hood’s sentence was not
‘based on a sentencing range . . . lowered by the Sentencing
Commission’ and therefore was not subject to modification under 18
U.S.C. § 3582(c)(2).
Hood, 556 F.3d at 234. And we have held similarly in Williams, 549 F.3d at 1341
(“[A] downward departure from [a] mandatory minimum does not constitute a
waiver or dispensing of [a] new ‘guideline range.’”).
13
Similar principles controlled the outcome in Moore, where five defendants
were convicted of unrelated crack cocaine offenses, and all moved for retroactive
application of Amendment 706. All had received career offender designations
based on their criminal histories, U.S.S.G. § 4B1.1; Moore himself had received a §
5K1.1 downward departure at sentencing for his substantial assistance. The district
courts denied the defendants’ motions for sentence reduction because Amendment
706 did not affect their statuses as career offenders, and thus did not lower their
applicable Guidelines sentencing ranges. Moore, 541 F.3d at 1325–26. In
affirming, this court rejected the defendants’ argument that § 3582(c)(2) “should be
read to apply in cases where a defendant’s base offense level has been altered by a
retroactively applicable guideline amendment” such that a district court must
recalculate the sentencing range and then determine whether a reduction is
appropriate under § 3553(a). Id. at 1327. The fact that Moore had received a
downward departure did not change the analysis, as his sentencing range was
determined by his career offender status, which operated like a statutory mandatory
minimum. See U.S.S.G. § 4B1.1, comment. (backg’d) (2008) (noting that
Congress, instead of using a mandatory minimum sentencing statute, used a
directive to the Sentencing Commission to develop a career offender Guideline to
address a class of recidivist offenders). The court did not base Moore’s sentence
14
“on the guideline range that would have applied absent the career offender
designation.” Id. at 1330. We said plainly that “[w]here a retroactively applicable
guideline amendment reduces a defendant’s base offense level, but does not alter
the sentencing range upon which his or her sentence was based, § 3582(c)(2) does
not authorize a reduction in sentence.” Id.
In these appeals, Defendants offer an alternative reading of § 1B1.10(b)(2).
Under their interpretation, the district court would apply the amended drug quantity
table to assign them base offense levels of 30. Defendants would then be entitled,
under § 1B1.10(b)(2)(B), to a sentence reduction proportionate to the reductions
contained in their original sentences, notwithstanding that they would be ineligible
for the two-level mitigating role decrease under § 2D1.1(a)(3) because that
provision requires a base offense level of 32. For Brown, this would mean that he
would receive a 13-level downward departure from an offense level of 30, resulting
in a total offense level of 17. For Mills, this would mean that she would receive a
10-level downward departure from an offense level of 30, resulting in a total
offense level of 20. Defendants’ argument implies that, on resentencing, the district
courts could ignore the statutory mandatory minimums originally used in
calculating Defendants’ sentences because § 1B1.10(b)(2) gives the courts latitude
to grant a reduction proportionate to that subtracted from the original sentencing
15
range. In turn, this implies that the amended sentencing range is the operative
provision in determining whether Defendants are entitled to a sentence reduction.
Though Defendants present a novel argument, we reject it because the
foregoing authority makes clear that the operative provision in determining their
applicable sentencing range is the statutory mandatory minimum, 21 U.S.C.
§ 841(b)(1)(A)(iii), not the crack cocaine Guideline, U.S.S.G. § 2D1.1. Even if
Defendants’ reading of § 1B1.10(b)(2) is correct (and we do not, today, decide
whether it is), Defendants are still subject to the mandatory minimum, upon which
their substantial assistance departures—and thus their ultimate sentences—were
based. “[T]he guidelines range for a defendant subject to a statutory minimum
would not be lowered by an amendment, even if the amendment would otherwise be
applicable to the defendant.” Williams, 549 F.3d at 1341; U.S.S.G. § 1B1.10
comment. (n.1(A)) (2008). The application note to § 1B1.10(b)(2), although it
indicates that “a reduction comparably less than the amended guideline range . . .
may be appropriate,” U.S.S.G. § 1B1.10, comment. (n.3) (2008) (emphasis added),
is inapplicable here because it does not contemplate a statutory mandatory
minimum. The law is clear that a sentencing court lacks jurisdiction to consider a §
3582(c)(2) motion, even when an amendment would lower the defendant’s
otherwise-applicable Guidelines sentencing range, when the defendant was
16
sentenced on the basis of a mandatory minimum. See Williams, 549 F.3d at 1338
(rejecting the defendant’s argument that the Government’s § 5K1.1 motion
“eliminated the mandatory minimum at the time of sentencing,” making him
eligible for the Amendment 706 reduction).
Defendants attempt to distinguish Moore and Williams by arguing that their
cases are “quirks”: sui generis applications of the Guidelines that lead to
nonsensical, arbitrary results. We are unpersuaded because the distinctions
Defendants assert between their cases and Moore and Williams lack substantive
differences. Although Moore involved defendants with career offender
designations, those designations acted like statutory mandatory minimums, and we
held that the defendants’ offense levels were therefore not affected by retroactive
application of Amendment 706. 541 F.3d at 1327 (“[T]he defendants’ sentences
were based on the guideline ranges applicable to career offenders under § 4B1.1.
The defendants’ base offense levels under § 2D1.1 played no role in the calculation
of these ranges.”). Moreover, we find the facts in Williams to be almost directly on
point for these Defendants’ cases. The only difference to which Defendants allude
is that Williams was sentenced directly under the drug statute, 21 U.S.C.
§ 841(b)(1)(B)(iii), rather than the crack cocaine Guideline, U.S.S.G. § 2D1.1,
because Williams’s two prior felony drug convictions subjected him to the statutory
17
mandatory minimum of 120 months’ imprisonment. Williams, 549 F.3d at 1338.
But Mills and Brown were also effectively sentenced under the statute, in that,
notwithstanding their PSIs’ § 2D1.1 drug quantity calculations, they were also
subject to the mandatory minimum of § 841(b)(1)(A)(iii). Here, as in Williams, the
provision governing the Defendants’ sentences, and the provision from which the
district courts granted substantial assistance departures, was the range set by the
statutory mandatory minimum, not the Guidelines sentencing range for crack
cocaine offenses that was subsequently changed by Amendment 706.
Lastly, Defendants, in a sentiment echoed by Mills’s sentencing court, argue
that this outcome reflects the very “arbitrariness” with which the Sentencing
Commission was concerned when it attempted to diminish the sentencing disparity
between crack cocaine offenders and powder cocaine offenders. But
arbitrariness—at least in the sense that Defendants mean it—does not result when
defendants’ sentences result from mandatory minimums set by Congress, rather
than operation of the Sentencing Guidelines. To the extent that Defendants believe
that the operation of the Guidelines led to “arbitrary” results in their cases, their
redress is with Congress and the mandatory minimum sentences for drug offenses
that it has set.
III.
18
The statutory mandatory minimums to which Defendants were subject meant
that they were not sentenced “based on a sentencing range” subsequently lowered
by Amendment 706. 18 U.S.C. § 3582(c)(2). The orders of the district courts
denying their motions for sentence reduction under 18 U.S.C. § 3582(c)(2) are,
therefore,
AFFIRMED.
19