United States v. Cook

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2009 Decided February 12, 2010

No. 09-3008

UNITED STATES OF AMERICA,
APPELLEE

v.

DERRICK COOK,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:93-cr-00365-RCL-1)

Mary M. Petras, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender.

Michael T. Ambrosino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roy W. McLeese
III, John P. Mannarino, and Mary Ann Snow, Assistant U.S.
Attorneys.
 2

Before: ROGERS and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: This is an appeal from the denial of
a motion for the reduction of sentence under 18 U.S.C.
§ 3582(c)(2) in view of amendments to the U.S. Sentencing
Guidelines (“U.S.S.G.”) reducing the base level offense for
offenses involving crack cocaine. We join the other circuits in
holding that section 3582(c)(2), which refers to sentences “based
on a guideline range subsequently lowered by the Sentencing
Commission,” applies only to a sentence that is determined by
a guideline range. Because Cook was sentenced to the
mandatory minimum in 21 U.S.C. § 841(b)(1)(A)(iii), his
sentence was not based on a guideline range, and he is ineligible
for relief under section 3582(c)(2). Accordingly, we affirm.

I.

On October 7, 1993, Derrick Cook and Dwayne Short were
indicted on one count of possession with intent to distribute fifty
grams or more of a mixture and substance containing a
detectable amount of cocaine base (also known as crack), in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) and 18
U.S.C. § 2. The government filed an information regarding
Cook’s prior drug conviction, which made him eligible for
enhanced mandatory penalties under 21 U.S.C.
§ 841(b)(1)(A)(iii). A jury convicted Cook of possession with
intent to distribute a detectable amount of cocaine base but did
not make any findings as to the quantity of drugs for which he
was to be held accountable. The district court found as a matter
of fact, by a preponderance of the evidence, that Cook had
possessed 111 grams of cocaine base, making his guideline
range under the 1994 Sentencing Guidelines 135 to 168 months.
 3

The district court noted, however, that Congress had
“superimposed mandatory minimums on top of the Guidelines.”
Sentencing Tr. 20, lines 24–25 (Jul. 5, 1994). Pursuant to
U.S.S.G. § 5G1.1(b), which required imposition of the
mandatory minimum sentence if it was greater than the
guideline range, the district court sentenced Cook to the
mandatory minimum sentence for repeat offenders of 240
months’ imprisonment in section 841(b)(1)(A)(iii), and to a
mandatory term of ten years’ supervised release, see id.

Cook appealed his conviction, and this court affirmed.
United States v. Cook, 70 F.3d 638 (D.C. Cir. 1985) (unpub. per
curiam). In 1997, Cook moved to vacate, set aside, or correct
the sentence pursuant to 28 U.S.C. § 2255, on the ground of
ineffective assistance of trial counsel, which motion the district
court denied, United States v. Cook, 130 F. Supp. 2d 43 (D.D.C.
2000); this court affirmed, United States v. Cook, 22 Fed. Appx.
3 (D.C. Cir. 2001). In 2003, Cook moved to reduce his sentence
under 18 U.S.C. § 3582(c)(2) based on Amendment 645 to the
Sentencing Guidelines, seeking credit for time served
concurrently with the sentence imposed upon revocation of his
probation for this conviction. The district court denied the
motion, and Cook did not appeal.

In August 2008, Cook moved to reduce his sentence under
section 3582(c)(2) based on the Sentencing Commission’s
adoption of Amendments 706, 711 and 713, which together
retroactively lowered the base level offense under U.S.S.G.
§ 2D1.1 by two points for offenses involving crack cocaine, see
U.S.S.G. app. C, amendments 706 and 711 (Nov. 1, 2007); see
id. amendment 713 (Mar. 3, 2008). He argued that in 1994 the
district court had sentenced him to 240 months’ imprisonment
on the mistaken belief that he was subject to a statutory
mandatory minimum sentence even though the jury had not
found him guilty of possessing with intent to distribute more
 4

than 50 grams of crack cocaine. Applying the amendments, his
guideline range would be 108–135 months. His projected release
date was April 27, 2013. As of March 3, 2008, when the
amendments took effect, he would have served more than fifteen
years (180 months), well above the amended sentencing range.
Cook therefore requested that his sentence be reduced to time
served.

The district court denied the motion, ruling that it lacked
authority to grant the relief Cook sought. Cook appeals. This
court has jurisdiction to review the denial of a section 3582
motion under 28 U.S.C. § 1291, see United States v. Paulk, 569
F.3d 1094, 1095 (9th Cir. 2009); United States v. Mateo, 560
F.3d 152, 154 n.1 (3d Cir. 2009); and under 18 U.S.C.
§ 3742(a)(1), see United States v. Legree, 205 F.3d 724, 727
(4th Cir. 2000).

II.

Section 3582(c)(2) provides:

[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 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 section 3553(a) [18 USCS § 3553(a)] to the
extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by
the Sentencing Commission.

18 U.S.C. § 3582(c)(2) (emphasis added). Because the proper
interpretation of a statute is a question of law, our review is de
 5

novo. United States v. Goodwin, 317 F.3d 293, 297 (D.C. Cir.
2003). We begin with the text of the statute, Hughes Aircraft
Co. v. Jacobson, 525 U.S. 432, 438 (1999), giving words their
ordinary and natural meaning, Leocal v. Ashcroft, 543 U.S. 1, 9
(2004), while recognizing that plain or not, the meaning of a
word depends on its context, see Halloway v. United States, 526
U.S. 1, 7 (1999) (citing Brown v. Gardner, 513 U.S. 115, 118
(1994)).

To be eligible for relief pursuant to section 3582(c)(2), a
defendant’s sentence must be “based on a sentencing range that
has subsequently been lowered by the Sentencing Commission.”
The circuit courts have held that where a defendant is sentenced
to a statutory mandatory minimum sentence, relief under section
3582(c)(2) is unavailable because the sentence is no longer
“based on” a sentencing range. As the Seventh Circuit
explained in United States v. Poole, 550 F.3d 676, 678 (7th Cir.
2008), “Congress has authorized district courts to modify
sentences in very limited circumstances,” and such relief is
unavailable where a defendant was sentenced to a mandatory
minimum sentence because the “sentence was ‘based on’ a
statutory minimum, not a sentencing range that Amendment 706
lowered.” To the argument that the defendant’s sentencing
range had been subsequently lowered because the district court
had initially calculated a guideline range that the Amendment to
the Sentencing Guidelines altered, the court responded, “this
view ignores the fact that the district court’s initial guidelines
calculation became academic once [the defendant’s] prior drug
felony was factored in, triggering the statutory minimum
sentence.” Id. at 679.

The other circuits to address the question are in agreement
with this interpretation of the phrase “based on.” In United
States v. Williams, 551 F.3d 182, 185 (2d Cir. 2009), the Second
Circuit stated that “[o]nce the mandatory minimum applied, [the
 6

defendant’s] sentence was no longer ‘based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission.’” (quoting § 3582(c)(2)). In United States v. Hood,
556 F.3d 226, 233 (4th Cir. 2009), the Fourth Circuit agreed that
the defendant’s 240 months’ sentence was based on the
Sentencing Guidelines pursuant to the mandatory minimum
sentence, rather than the sentencing range derived from U.S.S.G.
§ 2D1.1 for individual crack cocaine offenses. The Sixth Circuit
in United States v. Johnson, 564 F.3d 419, 423 (6th Cir. 2009),
likewise stated the defendant “was not in fact sentenced based on
a Guidelines range that was subsequently reduced” because “his
sentence was based on the mandatory minimum imposed by 21
U.S.C. § 841(b)(1)(A), which remained unchanged by Guidelines
Amendment 706.” So too in Paulk, 569 F.3d at 1095, the Ninth
Circuit concluded the defendant was “not entitled to a reduction
because his sentence was not ‘based on a sentencing range that
has subsequently been lowered by the Sentencing Commission,’
18 U.S.C. § 3582(c)(2), but rather was based on the statutory
mandatory minimum under 21 U.S.C. § 841.” To the same
effect are decisions in the First, Fifth, Eighth, Tenth, and
Eleventh Circuits, which have denied relief under section
3582(c)(2) to defendants sentenced to statutory mandatory
minimum sentences without referencing the “based on” phrase.
See United States v. Ganun, 547 F.3d 46, 47 (1st Cir. 2008);
United States v. Jones, 523 F.3d 881, 882 (8th Cir. 2008); United
States v. Smartt, 129 F.3d 539, 542 (10th Cir. 1997); United
States v. Eggersdorf, 126 F.3d 1318, 1320 (11th Cir. 1997);
United States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994).

Cook attempts to avoid this precedent and meet section
3582(c)(2)’s threshold “based on” requirement in two ways: first,
by pointing to the two-step sentencing procedure under the
Sentencing Guidelines, and second, by challenging the
lawfulness of the imposition of the mandatory minimum
sentence. Neither attempt succeeds.
 7

First, Cook contends that his sentence was in part “based
on” a sentencing range because of the two-step sentencing
process required by the Sentencing Guidelines. The district court
must first determine “the guideline range” and only then
determine, second, whether the “applicable guideline range” is
“trumped” by a statutory mandatory minimum. Appellant’s Br.
11; see U.S.S.G. §§ 1B1.11 & 5G1.1(b)2. “Because this process
requires that the applicable sentencing range be part of the basis
for the sentence, when the range is reduced the district court
necessarily has the authority to reduce the sentence.”
Appellant’s Br. 7. Because Cook claims he therefore is eligible
for relief under section 3582(c)(2), it follows Cook argues that
the district court can reassess the original decision to sentence
him to a mandatory minimum sentence under an improper
sentencing theory, which allowed the district court rather than a
jury to determine the amount of drugs for which he was
responsible, see United States v. Booker, 543 U.S. 220, 244–45
(2005); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and
upon recalculating his guideline range not reimpose the improper
mandatory minimum upon resentencing.

1
U.S.S.G.§ 1B1.1 Application Instructions lists the order in
which the provisions of the Manual are to be applied, referring, as
relevant, to “the guideline range” in subsection (g): “Determine the
guideline range in Part A of Chapter Five that corresponds to the
offense level and criminal history category determined above.”
2
U.S.S.G. § 5G1.1, Sentencing on a Single Count of
Conviction, provides, as relevant:

(b) 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.
 8

As preliminary matters we note that on appeal Cook agrees
his Apprendi claim is foreclosed because his 240-months
sentence does not exceed the statutory maximum for the offense
of conviction, see United States v. Graham, 317 F.3d 262,
273–74 (D.C. Cir. 2003). Under 21 U.S.C. § 841(b)(1)(C),
which would have applied in the absence of the judicial
factfinding, Cook would have been eligible for up to twenty
years’ imprisonment. Cook also states he is not raising the issue
of whether upon obtaining relief under section 3582(c)(2) the
district court must treat the Guidelines as mandatory when
imposing a new sentence, an issue pending before the Supreme
Court in United States v. Dillon, 572 F.3d 146 (3d Cir. 2009),
cert. granted, 78 U.S.L.W. 3334 (U.S. Dec. 7, 2009) (No. 09-
6338). Instead, he relies on precedent construing the phrase
“based on” as not imposing a condition of exclusivity and on the
distinction in the Sentencing Guidelines between a “guideline
range,” see U.S.S.G. § 1B1.10(a)(2)(B), and a “guideline
sentence,” see U.S.S.G. § 5G1.1(b).

The phrase “based on” must be construed in the context of
the relevant statute, and precedent on section 3582(c)(2) does not
favor Cook’s interpretation. Cook’s reliance on precedent
involving other statutory schemes, Sierra Club v. EPA, 356 F.3d
296, 305–06 (D.C. Cir. 2004); McDaniel v. Chevron Corp., 203
F.3d 1099, 1111 (9th Cir. 2000); United States ex rel. Kreindler
& Kreindler v. United Tech. Corp., 985 F.2d 1148, 1158 (2d Cir.
1993), is unavailing because the meaning of statutory words is
informed by the particular statutory context, see Halloway, 526
U.S. at 7. Even the Tenth Circuit’s interpretation of section
3582(c)(2) as broad enough to include a sentence imposed
pursuant to a plea agreement, United States v. Cobb, 584 F.3d
979 (10th Cir. 2009),3 is of no assistance because the court

3
The Fourth Circuit plea-agreement case cited by Cook was
vacated and dismissed as moot. United States v. Dews, 551 F.3d 204
 9

reasoned that “[i]t is simply unrealistic to think that the
applicable guideline range is not a major factor (if not the major
factor) in reaching a stipulated sentence.” Id. at 985 (emphasis
original). No such practical relationship is manifest in Cook’s
case. Indeed, the Tenth Circuit has held that defendants
“sentenced to a statutory mandatory minimum” are “ineligible
for a reduction of sentence under section 3582(c)(2).” Smartt,
129 F.3d at 542. In any event, this court noted in United States
v. Robinson, 587 F.3d 1122, 1129 n.8 (D.C. Cir. 2009), that
“[o]ther circuits have reached the opposite result, concluding that
a sentence imposed pursuant to a Rule 11(c)(1)(C) plea
agreement is not ‘based on’ the Guidelines and thus does not
come within the scope of 18 U.S.C. § 3582(c)(2).” See, e.g.,
United States v. Main, 579 F.3d 200, 203 (2d Cir. 2009); United
States v. Sanchez, 562 F.3d 275, 280 (3d Cir. 2009); United
States v. Scurlark, 560 F.3d 839, 841 (8th Cir. 2009); United
States v. Peveler 359 F.3d 369, 378–79 (6th Cir. 2004); see also
United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005).

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. If as Cook contends the
guideline range calculated by the district court under a two-step
sentencing process comprehends a mandatory minimum, then
Amendments 703, 711 and 713 on which Cook relies are of no
relevance. Although, as the government acknowledges, the
phrase “based on” can mean “based in part on” rather than
“based solely on,” Cook’s 1994 sentence, i.e., his sentencing
range, was not “based on” a guideline range within which the
district court had sentencing discretion, but on the statutory
mandatory minimum sentence under which the district court lost

(4th Cir. 2008), vacated and reh’g en banc granted, No. 08-6458 (4th
Cir. Feb. 20, 2009), appeal dismissed as moot, No. 08-6458 (4th Cir.
May 4, 2009).
 10

sentencing discretion. As the Seventh Circuit observed in Poole,
550 F.3d at 679, the district court’s initial calculation of a
guideline range became “academic” once the mandatory
minimum sentence kicked in. To go behind the statutory
mandatory minimum, as Cook’s interpretation requires, would
mean his statutory mandatory minimum sentence could be
reduced under section 3582(c)(2) even though that sentence was
determined independent of and rendered irrelevant an otherwise
applicable guideline range. Congress’ use of the phrase “based
on” would be a curious way to accomplish that result, much less
to indicate the Sentencing Guidelines Commission’s amendment
to a base offense level would amend a statute calling for the
imposition of a mandatory minimum sentence. See United
States v. LaBonte, 520 U.S. 751, 757 (1997).

Indeed, the Third Circuit, rejecting a similar argument to
Cook’s in United States v. Doe, 564 F.3d 305, 312 (3d Cir.
2009), equated the statutory mandatory minimum sentence,
imposed pursuant to U.S.S.G. § 5G1.1(b), with the “applicable
guideline range” under U.S.S.G. § 1B1.10(a)(2)(B)4 inasmuch as
the defendant’s mandatory minimum sentence “subsumed and
displaced” the initial guideline range, and hence the applicable
guideline range was not affected by the crack cocaine
amendments. See id. Similarly, the Eighth Circuit explained in
Jones, 523 F.3d at 882, that the defendant’s “final originally
calculated guidelines range was the statutorily required minimum
sentence of 120 months” such that his “guidelines range was

4
U.S.S.G. § 1B1.10 Reduction in Term of Imprisonment as
a Result of Amended Guideline Range (Policy Statement), reads in
part subpart (a)(2): “ Exclusions.—A reduction in the defendant’s term
of imprisonment is not consistent with this policy statement and
therefore is not authorized under 18 U.S.C. 3582(c)(2) if — . . . (B)
[a]n amendment . . . does not have the effect of lowering the
defendant’s applicable guideline range.”
 11

unaffected by the recent amendments to the crack quantity
guidelines.” Or as the Ninth Circuit stated, the “mandatory
minimum ‘was not affected by the changes in the [drug]
equivalency tables.’” Paulk, 569 F.3d at 1095 (quoting United
States v. Mullanix, 99 F.3d 323, 324 (9th Cir. 1996) (alteration
in original)). The Sixth Circuit in Johnson, 564 F.3d at 423,
agreed. This court in United States v. Lafayette, 585 F.3d 435,
440 (D.C. Cir. 2009), reached the same conclusion in rejecting
the defendant’s request to reduce the five-year term of
supervised release, assuming such a request to come within the
scope of section 3582(c)(2), because the five-year term was
mandated by 21 U.S.C. § 841(b)(1)(A).

Cook’s analytical error is clear from the plain text of section
3582(c)(2), which uses neither of the formulations in U.S.S.G.
§ 5G1.1(g) or U.S.S.G. § 1B1.10(a)(2)(B), referring instead to
“a term of imprisonment based on a sentencing range that has
subsequently been lowered,” 18 U.S.C. § 3582(c)(2) (emphasis
added). That the statute refers to “sentencing range” further
supports the circuits’ interpretation that the statutory mandatory
minimum is the applicable guideline range for purposes of
section 3582(c)(2). “[T]he 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.” Mateo, 560 F.3d at 155
(internal quotations omitted).

The cases on which Cook relies for his two-step analysis of
sentencing under the Sentencing Guidelines do not address the
question now before the court. In United States v. Rodriguez-
Martinez, 25 F.3d 797, 799 (9th Cir. 1994), the court did hold
that the district court could not abdicate its responsibility to
determine the guideline range by skipping to the mandatory
minimum in the first instance, but the court said nothing about
whether the mandatory minimum became the basis of the
 12

sentence for purposes of a section 3582(c)(2) motion. In United
States v. Richardson, 521 F.3d 149, 158–59 n.2 (2d Cir. 2008),
the court was addressing the initial sentencing, not whether being
sentenced to a mandatory minimum would foreclose relief under
a later filed section 3582(c)(2) motion. Cook’s response that the
mandatory minimum cases of Paulk, 569 F.3d at 1095, and
United States v. McChriston, 329 Fed. Appx. 255, 256 (11th Cir.
2009), “brushed over the issue of whether or not the original
sentence was ‘based on’ the subsequently reduced guideline
range,” Appellant’s Reply Br. 14–15, overlooks that the circuits
have held that the original sentence was “based on” the statutory
mandatory minimum, not the initial guideline range, Paulk; 569
F.3d at 1095; McChriston, 329 Fed. Appx. at 256; see also
Poole, 550 F.3d at 678–79. Cook’s interpretation, that the
“based on” requirement in section 3582(c)(2) refers to an
“academic”guideline range, Poole, 550 F.3d at 679, is unfaithful
to the text.

Second, Cook attempts to demonstrate his eligibility for
section 3582(c) relief on the ground that his 1994 mandatory
minimum sentence is unlawful. Cook would distinguish the
mandatory minimum cases in the other circuits by noting that in
those cases there was no dispute that the defendant was
convicted of an offense that carried a mandatory minimum
sentence, unlike here where there is no statutory mandatory
minimum sentence upon conviction of 21 U.S.C. § 841(b)(1)(C),
the provision under which Cook would have been sentenced on
the jury findings. See United States v. Webb, 255 F.3d 890,
896–97, 899–900 (D.C. Cir. 2001) (citing United States v.
Fields, 251 F.3d 1041, 1043 (D.C. Cir. 2001)). But when Cook
was sentenced in 1994, it was standard practice for the
sentencing court to make findings of fact on drug quantity. See
id. at 894. That aside, the plain text of section 3582(c)(2) does
not support the broad resentencing remedy Cook seeks. The
statutory mandatory minimum provision under which he was
 13

sentenced was not reduced by the Guidelines amendments,
much less was it a guideline range that has been reduced.

In Lafayette, this court joined the other circuits in rejecting
a broad interpretation of section 3582(c)(2) as generally
reopening a defendant’s sentence. The court explained that
section 3582(c)(2)

provides a circumscribed opportunity for district courts
to give sentencing relief when the Sentencing
Guidelines are changed. A defendant’s right to file
under this exception to the usual finality of sentencing
decisions is triggered only by a Guidelines amendment.
Given this, . . . it would be quite incongruous . . . if
section 3582(c)(2) provided an avenue for sentencing
adjustments wholly unrelated to such an amendment.

585 F.3d at 438. The court consequently rejected the
defendant’s claims regarding the constitutional infirmities of his
sentence under Booker and Apprendi as “features of earlier
sentencing decisions, not the district court’s . . . narrow section
3582(c)(2) determination.” Id. Cook’s contention that the
imposition of a mandatory minimum was unlawful because it
was unauthorized is, as in Lafayette, a feature of his 1994
sentence. Lafayette’s interpretation of the limited scope of the
opportunity for relief presented by section 3582(c)(2) thus bars
Cook’s alternative attempt to obtain relief. See LaShawn v.
Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc).

Cook’s reliance on the rule of lenity and the canon against
producing absurd results is misplaced. The former is a canon of
last resort where there is statutory ambiguity. See United States
v. R.L.C., 503 U.S. 291, 305–06 (1992). Section 3582(c)(2) is
not ambiguous. See FDA v. Brown & Williamson, 529 U.S. 120,
132–33 (2000) (citing Brown v. Gardner, 513 U.S. 115, 118
 14

(1994)). The latter canon imposes a high threshold: A “statutory
outcome is absurd if it defies rationality” by “render[ing] a
statute nonsensical or superfluous” or if it creates “an outcome
so contrary to perceived social values that Congress could not
have intended it.” Landstar Express Am., Inc. v. FMC, 569 F.3d
493, 498-499 (D.C. Cir. 2009) (internal quotations omitted). No
such concerns exist here as the distinction drawn by the circuits
is between sentences imposed under mandatory minimums and
those imposed under the otherwise applicable guideline range.
Moreover, the government argues that granting Cook relief
would provide a windfall to a small class of defendants
convicted of crack-related drug offenses, with no comparable
relief offered to similarly situated drug offenders, resulting in
unwarranted sentencing disparities that Congress sought to
eliminate in the Sentencing Reform Act of 1984, P.L. No.
98-473, 98 Stat. 1987, as amended and codified at 18 U.S.C. §§
3551–3626 and 28 U.S.C. §§ 991–998. This concern echoes
that expressed by this court in Lafayette, 585 F.3d at 438.

Accordingly, because Cook was sentenced to a statutory
mandatory minimum sentence, he is ineligible for relief under
section 3582(c)(2) based on Sentencing Guidelines’
Amendments 703, 711, and 713, and we affirm the denial of his
motion.