In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3866
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES G UYTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:01-CR-53—Rudy Lozano, Judge.
A RGUED JUNE 9, 2010—D ECIDED F EBRUARY 22, 2011
Before P OSNER, W OOD , and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Appellant James Guyton was
sentenced for a crack cocaine offense before the Supreme
Court held that the Sentencing Guidelines were advisory
in United States v. Booker, 543 U.S. 220 (2005). Guyton’s
guideline range was based on the career offender guide-
line, U.S.S.G. § 4B1.1, but the district court granted a
downward departure under section 5K1.1 based on his
assistance to the government. The court departed down-
2 No. 09-3866
ward to a sentence within the range for crack cocaine
offenses that would have applied to Guyton absent the
career offender designation.
In limited circumstances, 18 U.S.C. § 3582(c)(2) autho-
rizes a district court to reduce a sentence of imprison-
ment imposed under a previous version of the United
States Sentencing Guidelines so as to give retroactive
effect to guideline amendments that the Sentencing
Commission has chosen to make retroactive. A reduction
is permitted only if “the guideline range applicable to
that defendant” has been retroactively lowered. U.S.S.G.
§ 1B1.10(a). After the Sentencing Commission retro-
actively reduced the guideline ranges for crack cocaine
offenses, Guyton moved for a sentence reduction
under section 3582(c)(2). The district court denied his
motion, and Guyton has appealed. We affirm.
We held in United States v. Forman, 553 F.3d 585, 589-90
(7th Cir. 2009), that a crack cocaine offender sentenced
under the career offender guideline was not eligible for
a reduced sentence under section 3582(c)(2). The crack
cocaine amendment simply did not lower the defendant’s
applicable guideline range. Here we face a variation on
the Forman issue: whether a defendant sentenced under
the career offender guideline, but with a downward
departure for substantial assistance, is eligible for a
reduction. We hold that, for purposes of section 3582(c)(2),
the relevant sentencing range is the one calculated
before the defendant received the benefit of a downward
departure under Chapter 5 of the Guidelines. The Sen-
tencing Commission has not retroactively reduced the
No. 09-3866 3
career offender guideline that determined the guideline
range applicable to defendant Guyton. The reasoning
of Forman applies, therefore, and the district court was
required to deny Guyton’s motion.
I. The Facts and Procedural Background
Guyton was sentenced in 2001 for possessing crack
cocaine with intent to distribute it in violation of
21 U.S.C. § 841(a)(1). Two prior felony convictions
meant that he qualified as a career offender under
U.S.S.G. § 4B1.1. At that time, the Guidelines were con-
sidered binding, and Guyton’s career offender status
produced a guideline imprisonment range of 188 to 235
months in prison. Based on his substantial assistance to
the government in prosecuting another person, the gov-
ernment moved for a downward departure under
U.S.S.G. § 5K1.1 and requested a lesser sentence of 130
months. The district court granted the motion and sen-
tenced Guyton as recommended, remarking that the
government was in the best position to determine the
value of his assistance and the extent of the downward
departure he had earned.
In 2007, the Sentencing Commission adopted Amend-
ment 706, which reduced the base offense levels for
crack cocaine offenses. Then, with Amendment 713, the
Commission made the change retroactive. See U.S.S.G.
§ 2D1.1(c); U.S.S.G. Supp. App. C, Amdts. 706 and 713
(2008). Invoking Amendment 706, Guyton moved to
reduce his sentence under 18 U.S.C. § 3582(c)(2).
The district court denied the motion, observing that the
4 No. 09-3866
amendment could not benefit Guyton because his orig-
inal sentence was based not on the crack guideline but
on his career offender status and the substantial
assistance departure. Amendment 706 left the career
offender guideline unchanged.
II. Analysis
We held in United States v. Forman that a crack cocaine
offender sentenced under the career offender guideline
was not eligible for reduced sentence under section
3582(c)(2). 553 F.3d at 589-90. To avoid the holding of
Forman, Guyton contends that his actual sentence was
“based on” the crack cocaine guideline, § 2D1.1(c),
instead of or in addition to the career offender guideline,
§ 4B1.1. He stresses that his ultimate prison term of 130
months fell within the range that would have applied
absent his career offender status. He suggests that the
crack guideline explains the extent of the departure
he received and that his sentence was, at least in that
colloquial sense of the statutory phrase, “based on” a
sentencing range that was later lowered by the Sen-
tencing Commission.
We affirm the district court’s judgment. As a matter of
law, a sentence reduction under section 3582(c)(2) is
unavailable to Guyton because his relevant guideline
range was established by the career offender guideline
before he received the benefit of the departure. Because
Guyton’s applicable guideline range was not changed
by the retroactive guideline Amendment 706, reducing
his sentence would have been contrary to the policy of
No. 09-3866 5
the Sentencing Commission, which is the relevant
inquiry under the statute.
A. The Statutory Framework
As a general rule, with just a few exceptions, a district
court may not modify a term of imprisonment once it
has been imposed. 18 U.S.C. § 3582(c); Dillon v. United
States, 130 S. Ct. 2683, 2687 (2010); United States v.
Jackson, 573 F.3d 398, 399 (7th Cir. 2009). In sec-
tion 3582(c)(2), Congress created one narrow excep-
tion. A district court may modify a sentence if two con-
ditions are met: first, the original sentence was “based
on a sentencing range that has subsequently been
lowered by the Sentencing Commission,” and second, a
reduction would be “consistent with applicable policy
statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c)(2); Dillon, 130 S. Ct. at 2687; United States
v. Darton, 595 F.3d 1191, 1194 (10th Cir. 2010); United
States v. Tolliver, 570 F.3d 1062, 1065 (8th Cir. 2009);
United States v. Forman, 553 F.3d at 588.
This statutory scheme delegates a great deal of power
and discretion to the Sentencing Commission. The Com-
mission, not a federal court, decides when an amend-
ment is retroactive and issues policy statements that
can make a sentencing reduction unavailable. The
Supreme Court has confirmed that in section 3582(c)(2)
proceedings, unlike original sentencing proceedings now
governed by Booker, the Commission’s policy statements
still bind the federal courts. Dillon, 130 S. Ct. at 2687-88.
6 No. 09-3866
The Commission lists by number in U.S.S.G. § 1B1.10(c)
the binding policy statements making amendments
retroactive. Subsection (a)(2)(B) of the same section pro-
hibits a sentence reduction if the amendment at issue
“does not have the effect of lowering the defendant’s
applicable guideline range.” (Emphasis added.)
B. The “Applicable Guideline Range”
Under the Guidelines, a defendant has only one “appli-
cable guideline range,” and it is a range that the district
court calculates before granting any departures under
Chapter 5 of the Guidelines. (We do not address here
whether the applicable guideline range is established
before any departures for over-representation of a de-
fendant’s criminal history under section 4A1.3. That issue
has sharply divided the circuits and is not before us in
this case.) For Guyton, who received a substantial assis-
tance departure under section 5K1.1, the applicable range
was furnished by the career offender guideline.
Our analysis starts with the language of sec-
tion 1B1.10(a)(2)(B). The reference there to “the de-
fendant’s applicable guideline range” is singular,
implying that a defendant has only one applicable guide-
line range. That conclusion is consistent with the over-
all structure of the Guidelines, which require ultimately
a determination of one guideline range that applies to
the defendant. That observation, however, does not
show just when the applicable guideline range is estab-
lished. We turn to the context in which the phrase appears.
No. 09-3866 7
First, section 1B1.10 takes for granted that a defendant
who received a “downward departure” in the pre-Booker
era received a specific term of imprisonment below his
applicable range. Specifically, section 1B1.10(b)(2)(B)
states that if a district court considers a motion under
section 3582(c)(2) pursuant to a retroactively-amended
guideline range, the court may sentence below the
amended range only if “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.” (Emphasis added.) This provi-
sion assumes that “the applicable guideline range” is the
range established before a district court decides to
depart or vary downward. E.g., United States v. Pembrook,
609 F.3d 381, 384-85 (6th Cir. 2010). Contra, United States
v. Flemming, 617 F.3d 252, 266 n.20 (3d Cir. 2010); United
States v. McGee, 553 F.3d 225, 228 (2d Cir. 2009). The
provision in subsection (b)(2)(B) makes little sense if
the departure itself is treated as providing the applicable
“range.”
Second, and more important, the structure of the Guide-
lines makes clear that the applicable guideline range
is the one calculated before any departure under sec-
tion 5K1.1. The Guidelines permit a genuine departure
under section 5K1.1 and other provisions found in
Chapter 5 only after the court has already determined “the
applicable guideline range.” 1 Section 1B1.1 lays out the
1
We refer to a “genuine” departure because, after Booker, a
sentencing court can impose a sentence outside the applicable
(continued...)
8 No. 09-3866
order in which courts apply the guideline provisions. In
the first several steps, the district court calculates the
defendant’s total offense level and criminal history cate-
gory and determines the corresponding guideline range.
U.S.S.G. § 1B1.1(a)(1)-(a)(8).2 After the court determines
the range, it “shall then consider Parts H and K of Chapter
Five, Specific Offender Characteristics and Departures,
and any other policy statements or commentary in the
1
(...continued)
guideline range for reasons independent of the Guidelines
themselves.
2
Effective November 1, 2010, the Sentencing Commission
amended and reorganized section 1B1.1 to emphasize the three
basic steps in sentencing after Booker: first, under subsection (a),
calculate the applicable guideline range; second, under sub-
section (b), consider departures under the Guidelines them-
selves; third, under subsection (c), consider the other ap-
plicable factors under 18 U.S.C. § 3553(a). We cite in this
opinion the new amended organization of section 1B1.1. The
amended version of section 1B1.1 was in large part a response
to a line of our cases, beginning with United States v. Johnson,
427 F.3d 423, 426 (7th Cir. 2005), saying that Booker rendered
the Guidelines’ concept of departure “obsolete.” See Amend-
ment 741 to the Sentencing Guidelines (resolving circuit split
regarding application methodology for district courts). In a
strictly legal sense, the “obsolete” description was accurate
as applied to appellate review of a sentence, but the “obsolete”
line of cases should not discourage district courts from
taking genuine guidance from all the Guidelines, including
their departure provisions, as required under the amended
section 1B1.1.
No. 09-3866 9
guidelines that might warrant consideration in imposing
sentence.” § 1B1.1(b). The court then moves beyond
the Guidelines and considers other factors under
18 U.S.C. § 3553(a). See § 1B1.1(c).
Within this structure, a section 5K1.1 departure neces-
sarily comes after the establishment of a specific guide-
line range applicable to the defendant. Flemming, 617
F.3d at 262-64; Pembrook, 609 F.3d at 385; Darton, 595
F.3d at 1197; see also Tolliver, 570 F.3d at 1065-66. Thus, a
career offender whose imprisonment term falls below
his career offender range only by virtue of a departure
under Part 5H or Part 5K cannot receive a reduction
under section 3582(c)(2) unless the Sentencing Commis-
sion retroactively amends the career offender guideline.
This conclusion is consistent with decisions of the
Sixth, Eighth, and Tenth Circuits, which hold that the
only applicable guideline range is the one established
before any departures. See United States v. Hameed, 614
F.3d 259 (6th Cir. 2010); Pembrook, 609 F.3d 381; Darton,
595 F.3d 1191; United States v. Blackmon, 584 F.3d 1115 (8th
Cir. 2009); United States v. Collier, 581 F.3d 755 (8th Cir.
2009); Tolliver, 570 F.3d 1062. Our decision does not
conflict with the Third Circuit’s decision in Flemming,
which held that the applicable guideline range is estab-
lished before any departure under section 5K1.1 for
substantial assistance, but after any departure under
section 4A1.3 for over-representation of the defendant’s
criminal history. Flemming, 617 F.3d at 262-64. The
Eleventh Circuit, too, has suggested in dicta that it might
adopt different approaches for departures made under
10 No. 09-3866
Chapters 4 and 5. See United States v. Moore, 541 F.3d 1323,
1329-30 (11th Cir. 2008).
Our decision is in tension with those of the First, Second,
and Fourth Circuits. See United States v. Cardosa, 606
F.3d 16 (1st Cir. 2010); United States v. Munn, 595 F.3d 183
(4th Cir. 2010); McGee, 553 F.3d 225 (2d Cir. 2009). Al-
though the defendant in each of these cases had received
a departure under section 4A1.3 instead of or in addition
to a departure under section 5K1.1, some of the language
in these decisions might not be limited to departures
under section 4A1.3. To the extent that Cardosa, Munn, and
McGee may be read to permit a sentence reduction in
circumstances like Guyton’s, we respectfully disagree
with them.
For now, though, we grapple no further with the deci-
sions authorizing sentence reductions for defendants
who received a departure under section 4A1.3 to a term
within the crack-cocaine range that would have applied
in the absence of career-offender status. First, neither
Cardosa nor McGee analyzes the application instructions
in section 1B1.1, so we would not consider them persua-
sive on this issue. See Cardosa, 606 F.3d 16; McGee, 533
F.3d 225. Second, the nub of Flemming and Munn—that a
“departure” under section 4A1.3 is actually a step in cal-
culating the defendant’s criminal history category and
thus precedes the establishment of the applicable
guideline range—has no bearing on our conclusion that
the applicable guideline range is established before
any departures under Chapter 5. See U.S.S.G. § 1B1.1 (a)(6)
through (a)(8), (b), and (c); Flemming, 617 F.3d at 262-64
No. 09-3866 11
(explaining that departure under section 5K1.1 is made
at old step (i) of the application instructions, which is
now step (b), but departure under section 4A1.3 might
be made at old step (f), which is now step (a)(6), before
the guideline range is established at old step (h), which
is now step (a)(8)); Munn, 595 F.3d at 192 (“Because of
section 4A1.3’s placement, however, the Commission
most likely intended for the court to grant an Overrepre-
sentation Departure before determining the applicable
guideline range, as part of its calculation of the crim-
inal history category.”).
Finally, we decline to rely on a definition added to
the Guidelines in 2003 in Amendment 651 that some
readers might have thought would resolve this case.
Since 2003, Application Note 1(E) to section 1B1.1 has
defined a “departure” as the “imposition of a sentence
outside the applicable guideline range.” Where this
definition holds, the applicable guideline range is
always established before any departures can be made.
The circuits are divided on the applicability of Amend-
ment 651 to section 3582(c)(2) proceedings for defendants
like Guyton who were sentenced before it was adopted.
Compare Pembrook, 609 F.3d at 385-86, with Flemming,
617 F.3d at 266-68, and Munn, 595 F.3d at 193-94. Our
structural analysis suffices to support our holding, and
the parties have not addressed Amendment 651. We
leave that issue for a case in which it would make
a difference.
Guyton’s applicable guideline range was established on
the basis of his career-offender status before he received
12 No. 09-3866
a substantial assistance departure. Thus, Amendment
706, which left the career offender guideline unchanged,
did not affect his applicable guideline range, and
he did not qualify for a sentence reduction under
section 3582(c)(2). The judgment of the district court
is A FFIRMED.
2-22-11