United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted January 15, 2010 Decided August 6, 2010
No. 08-3115
UNITED STATES OF AMERICA,
APPELLEE
v.
ERNEST TEPPER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:93-cr-00073)
A. J. Kramer, Federal Public Defender, and Mary Manning
Petras, Assistant Federal Public Defender, were on the briefs for
appellant.
Jeffrey A. Taylor, U.S. Attorney at the time the brief was
filed, and Roy W. McLeese III, Assistant U.S. Attorney, were on
the brief for appellee.
Before: ROGERS, GARLAND, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: In 1993, Ernest Tepper pled
guilty to possessing with intent to distribute 50 grams or more
of crack cocaine and was sentenced as a career offender to 262
months’ imprisonment. In 2007 and 2008, the Sentencing
Commission amended the sentencing guidelines that generate
offense levels for crimes involving crack, but did not amend the
provisions relating to career offenders. Tepper seeks a
sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2), which
authorizes a reduction if the original sentence was “based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission.” We conclude that Tepper cannot
proceed under § 3582(c)(2) because the Commission’s
amendments did not lower the sentencing range on which his
sentence was based.
I
On April 20, 1993, Tepper pled guilty to one count of
unlawful possession with intent to distribute cocaine base, also
known as “crack,” in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii). The Presentence Investigation Report (PSR)
prepared by the United States Probation Office used the 1992
edition of the United States Sentencing Guidelines (U.S.S.G.)
to calculate Tepper’s guideline range. Because Tepper admitted
possessing 108.8 grams of crack and 20.445 grams of heroin, the
Guidelines’ drug quantity table, U.S.S.G. § 2D1.1(c)(6) (1992),
gave him a base offense level of 32. PSR at 5. The PSR then
applied a three-level downward adjustment from the base
offense level for Tepper’s acceptance of responsibility and
guilty plea, see U.S.S.G. § 3E1.1, which yielded a total offense
level of 29. PSR at 6. The PSR also determined that Tepper’s
prior convictions put him in criminal history category IV. Id. at
9; see U.S.S.G. ch. 4, pt. A; id. ch. 5, pt. A.
3
As the PSR noted, however, Tepper qualified as a career
offender under U.S.S.G. § 4B1.1, because he was older than
eighteen, pled guilty to a controlled substance offense, and had
two prior felony convictions for crimes of violence or controlled
substance offenses. PSR at 6. This status altered both his total
offense level and his criminal history category. Under the career
offender guideline, Tepper’s offense level rose to 37, which,
after the adjustment for accepting responsibility and pleading
guilty, yielded a total offense level of 34. PSR at 6. The career
offender guideline also fixed his criminal history category at VI.
U.S.S.G. § 4B1.1; see PSR at 6, 9. In combination, that offense
level and criminal history yielded a sentencing range of 262 to
327 months. U.S.S.G. ch. 5, pt. A (sentencing table); see PSR
at 16. At Tepper’s July 13, 1993 sentencing, the district court
agreed that Tepper was a career offender, adopted the PSR’s
guidelines calculations, and sentenced him to 262 months’
imprisonment -- the bottom of the guidelines sentencing range.
Sentencing Tr. 20-21.
In November 2007, the United States Sentencing
Commission amended the drug quantity table’s crack cocaine
guideline, U.S.S.G. § 2D1.1, lowering by two levels the base
offense levels for most crimes involving crack cocaine. See
U.S.S.G. Supp. App. C, amend. 706, 711 (2007); see also id.
amend. 715 (2008). In 2008, the Commission gave those
amendments retroactive effect. See id. amend. 713, 716 (2008).
In light of the amendments, Tepper filed a motion to modify his
term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2), which
authorizes a court to reduce a term of imprisonment “in the case
of a defendant who has been sentenced . . . based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The district
court denied the motion, holding that § 3582(c)(2) did not apply
to Tepper’s sentence because his sentencing range was based on
the career offender provisions of U.S.S.G. § 4B1.1, not on the
4
recently-amended U.S.S.G. § 2D1.1. United States v. Tepper,
Mem. Order at 1 (D.D.C. Dec. 12, 2008). This appeal followed.
II
Section 3582(c) provides:
The 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[,] . . . the court may
reduce the term of imprisonment . . . if such a
reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c). As the text indicates, the district court may
not reduce Tepper’s sentence unless it was “based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission.” Because Tepper’s appeal turns solely
on the meaning of that statutory phrase, we review the question
de novo. See United States v. Cook, 594 F.3d 883, 886 (D.C.
Cir. 2010).
1. Tepper acknowledges that his “ultimate sentence was
imposed pursuant to the § 4B1.1 career offender provision[,]”
which has not been amended by the Commission. Appellant’s
Br. 6-7. Nonetheless, he argues that he falls within the ambit of
§ 3582(c)(2) because “his guideline sentencing calculation
included the § 2D1.1 crack cocaine guideline which has been
reduced.” Id. at 7.
5
The problem with this argument is that, by its terms,
§ 3582(c)(2) applies only when a “sentencing range” -- not a
“guideline” -- has been lowered. And nothing the Sentencing
Commission did in 2007 or 2008 lowered the sentencing range
upon which Tepper’s original sentence was based. The
amendment to U.S.S.G. § 2D1.1 did lower his drug-quantity-
based offense level by two levels, and therefore lowered the
total offense level that would have been applicable to Tepper
were he not a career offender. But the career offender provision
instructs the court to apply its offense level when it is greater
than the otherwise applicable level. U.S.S.G. § 4B1.1(b).
Because Tepper’s career offender offense level (34) was greater
than the level calculated using U.S.S.G. § 2D1.1 (32), the
reduction in the latter did not even lower Tepper’s offense level
-- let alone his sentencing range. Because both his total offense
level (34) and criminal history category (VI) remain the same,
Tepper’s sentencing range remains unchanged at 262 to 327
months.
2. Tepper protests that this analysis reflects too narrow a
construction of the words “based on” in the phrase, “a term of
imprisonment based on a sentencing range that has subsequently
been lowered.” Those words, he argues, should not be limited
to the final steps in the calculation of the sentence. Rather, they
“must be understood to encompass each guideline the sentencing
judge calculated and considered” along the way. Appellant’s
Br. 10. This construction is appropriate, he contends, because
the “Guidelines provide a specific sequence to follow in arriving
at an ultimate sentence.” Id. (citing U.S.S.G. § 1B1.1).
Tepper is certainly correct that the Guidelines instruct
courts to follow a specific sequence. As is relevant here, this
includes first determining the base offense level pursuant to the
appropriate offense guideline section; then applying the
adjustment for acceptance of responsibility; then determining
6
the defendant’s criminal history as specified in part A of Chapter
4; and then applying the career offender provision in part B of
Chapter 4. See U.S.S.G. § 1B1.1. Following this path, the PSR
(and the district court, which adopted it) first determined that the
applicable base offense level under the drug quantity table,
U.S.S.G. § 2D1.1(c)(6), was 32. It then applied a 3-level
downward adjustment for Tepper’s acceptance of responsibility
under U.S.S.G. § 3E1.1, yielding a total offense level of 29.
Only thereafter did the PSR turn to the career offender provision
of § 4B1.1, which yielded a total offense level (after adjustment)
of 34, and a criminal history category of VI. Those, in turn,
generated a guideline sentencing range of 262 to 327 months.
See U.S.S.G. ch. 5, pt. A.
Tepper maintains that the Guidelines’ sequencing provision
means that his “sentence was based on more than simply the
career offender range.” Appellant’s Br. 16. Rather, it “began
with the § 2D1.1 provisions and, therefore, [was] based at least
in part on [a] guideline that has now been reduced.” Id. at 8.
Tepper’s argument faces two insurmountable obstacles.
First, we agree that a sentence “based on a sentencing
range” is also based on the guideline calculations on which that
sentencing range was itself founded in whole or in part. But as
we held in United States v. Cook, the guideline calculation at
issue must have actually played a role in determining that range.
594 F.3d at 888. It is not enough that a guideline was merely
calculated or considered along the way. Id. at 888-89; see
United States v. Caraballo, 552 F.3d 6, 9 (1st Cir. 2008)
(rejecting the argument that a career offender’s sentence was
“based on” the crack guideline because it was “a way station
along the road that the district court traveled in arriving at the
appropriate sentencing range”). For that reason, Cook held that
a defendant who was sentenced to a statutory mandatory
minimum above the applicable guidelines range did not come
7
within the ambit of § 3582(c)(2), notwithstanding the
amendment to the crack guidelines. 594 F.3d at 891. Although
the sequencing provision of the Guidelines does require the
court to calculate a sentencing range based on the crack
guidelines, see U.S.S.G. § 1B1.1(g), Guideline § 5G1.1(b) then
instructs the court to ignore the result of that calculation if the
statutory mandatory minimum exceeds the guidelines range.
The defendant’s mandatory minimum sentence was not “based
on” a guidelines sentencing range, we said, because “that
sentence was determined independent of and rendered irrelevant
[the] otherwise applicable guideline range.” Cook, 594 F.3d at
888.
Similarly, there is no sense in which Tepper’s sentencing
range was determined -- either solely or partially -- by the crack
guideline. After the court follows the steps that begin with that
guideline, the career offender provision instructs it to disregard
those steps and instead adopt the offense level for a career
offender (if it is greater) and a criminal history category of VI.
See U.S.S.G. § 4B1.1(b). Only after the court completes that
step does the sequencing provision instruct it to “[d]etermine the
guideline [sentencing] range . . . that corresponds to the offense
level and criminal history category.” Id. § 1B1.1(g).1
Second, for essentially the same reason, Tepper’s argument
again founders on the point discussed in Part II.1 above. Section
3582(c)(2) only authorizes a reduction for a term of
imprisonment that was based on a sentencing range that “has
subsequently been lowered.” Because the crack guideline
1
Hence, unlike the case of a mandatory minimum, where the court
first calculates an otherwise applicable sentencing range that it
discards if the mandatory minimum sentence is higher, see U.S.S.G.
§ 5G1.1(b), in the case of a career offender the court never calculates
an otherwise applicable sentencing range at all.
8
played no role in determining Tepper’s original sentencing
range, the Commission’s decision to lower that guideline did not
lead to a lowering of his sentencing range.
3. Tepper raises two further arguments in support of the
proposition that the amendment to the crack guidelines will
lower his “ultimate sentence.” Appellant’s Reply Br. 5. First,
he argues that in considering whether to depart from the
sentencing range generated by the career offender guideline, as
authorized under limited circumstances by U.S.S.G § 4A1.3, a
sentencing court may consider the disparity between the higher
range dictated by that guideline and the lower range that would
otherwise apply. Noting that the reduction in the crack
guideline creates an even greater disparity between those two
ranges, he maintains that this increases the chance that the court
will depart from the career offender range in a § 3582(c)(2)
proceeding. Second, Tepper argues that the prospect that his
sentence will ultimately be lowered has been further improved
by the Supreme Court’s decisions in United States v Booker, 543
U.S. 220, 245 (2005), which made the guidelines ranges
advisory rather than mandatory, and Kimbrough v. United
States, 552 U.S. 85, 91 (2007), which held that courts may
consider the disparity between the Guidelines’ treatment of
crack and powder cocaine offenses in determining whether to
vary from a guidelines range.
Both of these arguments ignore the statutory text. Again,
§ 3582(c)(2) authorizes a court to modify a sentence only for a
defendant who was sentenced based on a “sentencing range” that
has subsequently been lowered. Even if Tepper were correct
that the reduction in the crack guideline would lead to lowering
his ultimate sentence, that would not be because his original
sentencing range was lowered. Rather, under his first argument
it would be because the district court decided to depart from that
9
range, and under the second it would be because the court
decided, post-Booker, to vary from that now advisory range.
But the bigger problem for both arguments is yet another
Supreme Court decision, Dillon v. United States, which the
Court handed down after Tepper submitted his briefs in this
case. 130 S. Ct. 2683 (2010). In Dillon, the Court held that
“[c]ourts generally may ‘not reduce the defendant’s term of
imprisonment under 18 U.S.C. § 3582(c)(2) . . . to a term that is
less than the minimum of the amended guideline range.’” Id. at
2691 (quoting U.S.S.G. § 1B1.10(b)(2)(A)).2 That is, in
§ 3582(c)(2) proceedings, courts generally may neither “depart
from the amended Guidelines range,” id. at 2693, nor “vary
from” that range on the basis of Booker or Kimbrough, id. at
2690; see id. at 2691-93.
4. For the foregoing reasons, we conclude that § 3582(c)(2)
does not authorize a district court to reduce a career offender’s
term of imprisonment based on the Sentencing Commission’s
amendments to the crack cocaine guidelines. In so holding, we
join every court of appeals that has addressed the question. See
Caraballo, 552 F.3d at 11 (1st Cir. 2009); United States v.
Martinez, 572 F.3d 82, 85 (2d Cir. 2009); United States v.
Mateo, 560 F.3d 152, 153 (3d Cir. 2009); United States v. Tyler,
301 F. App’x 265, 266 (4th Cir. 2008); United States v.
Anderson, 591 F.3d 789, 791 (5th Cir. 2009); United States v.
Perdue, 572 F.3d 288, 293 (6th Cir. 2009); United States v.
Knox, 573 F.3d 441, 450 (7th Cir. 2009); United States v. Tingle,
2
They may do so “[o]nly if the sentencing court originally
imposed a term of imprisonment below the Guidelines range,” in
which case they may “impose a term ‘comparably’ below the amended
range.” Dillon, 130 S. Ct. at 2691-92 (quoting U.S.S.G.
§ 1B1.10(b)(2)(B)). Tepper’s sentencing court did not originally
impose a sentence below the guidelines range.
10
524 F.3d 839, 840 (8th Cir. 2008); United States v. Tupuola, 587
F.3d 1025, 1026 (9th Cir. 2009); United States v. Sharkey, 543
F.3d 1236, 1239 (10th Cir. 2008); United States v. Moore, 541
F.3d 1323, 1330 (11th Cir. 2008).
III
The judgment of the district court, denying the appellant’s
motion for modification of his sentence pursuant to 18 U.S.C.
§ 3582(c)(2), is
Affirmed.