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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15933
________________________
D.C. Docket No. 8:96-cr-00144-EAK-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LOUIS JEAN HIPPOLYTE,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 14, 2013)
Before TJOFLAT and HILL, Circuit Judges and HUCK, ∗ District Judge.
∗
Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
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TJOFLAT, Circuit Judge:
On August 9, 1996, a jury found Louis Jean Hippolyte guilty on one count
of conspiracy to possess with intent to distribute crack cocaine (Count One), two
counts of distribution of crack cocaine (Counts Four and Five), one count of
possession of crack cocaine with intent to distribute (Count Seven), and one count
of possession of cocaine powder with intent to distribute (Count Six). 1 On
November 1, 1996, the District Court sentenced Hippolyte to concurrent prison
terms. On Counts One, Four, Five, and Seven, the court imposed on each count
the statutory mandatory minimum sentence of 240 months; 2 on Count Six, the
court imposed a concurrent term of 189 months. On October 28, 1997, this court
affirmed his convictions and sentences. United States v. Hippolyte, 130 F.3d 442
(11th Cir. 1997) (Table).
On October 31, 2011, Hippolyte moved the District Court to reduce his
sentences on Counts One, Four, Five, and Seven pursuant to 18 U.S.C. §
3582(c)(2) based on Amendment 750 to the U.S. Sentencing Guidelines, which
1
Count One charged a violation of 21 U.S.C. § 846. Counts Four, Five, Six, and Seven
charged violations of 21 U.S.C. § 841(a).
2
See 21 U.S.C. § 841(b)(1)(A)(iii) (1996) (imposing a statutory mandatory minimum
sentence of 20 years’ imprisonment for any case involving at least 50 grams of crack cocaine
where the defendant has previously been convicted of a felony drug offense). Hippolyte had
previously been convicted of felony possession of marijuana and, at sentencing in the instant
case, was held accountable for 220 grams of crack cocaine.
2
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lowered the base offense level for crack cocaine offenses,3 and the Fair Sentencing
Act of 2010 (the “FSA”), Pub. L. No. 111-220, 124 Stat. 2372. The District Court
denied his motion on the ground that because he had received the statutory
mandatory minimum sentence for his crack cocaine offenses, he was ineligible for
a sentence reduction under § 3582(c)(2). He appeals its decision. We affirm.
I.
Hippolyte argued in the District Court, as he does on appeal, that the FSA
applies in § 3582(c)(2) proceedings, such that the District Court had the authority
to reduce his sentences on Counts One, Four, Five, and Seven below the statutory
mandatory minimum. We disagree. To explain why, we revisit why and how the
District Court structured his sentences as it did in November 1996.
The presentence investigation report (the “PSI”), which the District Court
adopted, determined that Hippolyte was responsible for 220 grams of crack
cocaine and 544.9 grams of powder cocaine. Because there was more than one
controlled substance at issue,4 the PSI applied the drug equivalency tables 5 and
3
18 U.S.C. § 3582(c)(2) allows a district court to reduce a defendant’s term of
imprisonment after sentencing “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. . . . [T]he court may reduce the term of imprisonment . . . if such a reduction is
consistent with applicable policy statements issued by the Sentencing Commission.”
4
See U.S.S.G. § 2D1.1 cmt. n.10 (1995). This application note provides a procedure for
finding a single offense level when there are two or more different controlled substances. Each
controlled substance is converted to its marijuana equivalent using the Drug Equivalency Tables
3
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converted these amounts to the equivalent of 4,508.98 kilograms of marijuana.
This quantity resulted in a total offense level of 34. 6 Because Hippolyte had two
prior convictions for which he had received sentences of probation, he was
assigned criminal history category II. U.S.S.G. § 4A1.1(c) (1995). Under the
Sentencing Table, the sentence range for an offense level of 34 and criminal
history category II was 168 to 210 months’ imprisonment. U.S.S.G. Ch. 5, Pt. A
(1995). The statutory mandatory minimum sentence for crack cocaine offenses
controlled, so Hippolyte received sentences of 240 months’ imprisonment for each
of those offenses. See 21 U.S.C. § 841(b)(1)(A)(iii) (1996) 7; U.S.S.G. §
5G1.1(c)(2) (1995).
If Amendment 750 were applied in his case, Hippolyte’s offense level
would be reduced from 34 to 30, 8 resulting in a new sentence range of 108 to 135
of U.S.S.G. § 2D1.1 cmt. n.10, then the marijuana equivalents are added to find a grand total,
which is then used to find the offense level in the Drug Quantity Table of U.S.S.G. § 2D1.1(c).
5
See U.S.S.G. § 2D1.1 cmt. n.10 (1995) Drug Equivalency Tables. One gram of crack
cocaine was the equivalent of twenty kilograms of marijuana and one gram of powder cocaine
was the equivalent of 200 grams of marijuana. As a result, the 220 grams of crack cocaine
attributed to Hippolyte were equivalent to 4,400 kilograms of marijuana, and the 544.9 grams of
powder cocaine attributed to Hippolyte were equivalent to 108.98 kilograms of marijuana, for a
grand total of 4,508.98 equivalent kilograms of marijuana.
6
See U.S.S.G. § 2D1.1(c)(3) (1995) Drug Quantity Table, assigning offense level 34 to
an amount of marijuana of “[a]t least 3,000 [kilograms] but less than 10,000 [kilograms].”
7
The statutory mandatory minimum sentence is 20 years’ imprisonment for any case
involving 50 grams or more of crack cocaine where the defendant has previously been convicted
of a felony drug offense. See Supra note 2.
8
Under Amendment 750, the marijuana-to-crack conversion ratio was reduced to 3,751-
to-1 from 20,000-to-1. See U.S.S.G. § 2D1.1 cmt. n.10(D) (2011). Thus, the 220 grams of crack
4
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months’ imprisonment.9 And if the FSA were applied as well, the statutory
mandatory minimum for his crack cocaine offenses would be 120 months, 10
instead of 240 months, resulting in a new sentence range of 120 to 135 months.
II.
Hippolyte’s position is that both Amendment 750 and the FSA apply in his §
3582(c)(2) proceeding. He advances the novel argument that one of the changes
made by Amendment 759 to the Sentencing Guidelines, which became effective on
November 1, 2011, was to add a brand-new definition of “applicable guideline
range” to U.S.S.G. §1B1.10, and that this new definition significantly changes the
way sentencing reductions work under § 3582(c)(2), in Hippolyte’s favor. See
Amendment 759, U.S.S.G. App. C – Vol. III, at 416 (2011), codified at U.S.S.G. §
1B1.10 cmt. n.1(A) (2011). 11
cocaine attributed to Hippolyte would now be equivalent to 785.62 kilograms of marijuana. As
the marijuana-to-powder-cocaine conversion ratio remained constant at 200-to-1, id., the amount
of powder cocaine attributed to Hippolyte, 544.9 grams, would still be equivalent to 108.98
kilograms of marijuana. Thus, the total equivalent kilograms of marijuana would now be 894.6
kilograms. See U.S.S.G. § 2D1.1(c)(5) (2011) Drug Quantity Table, assigning offense level 30
to an amount of marijuana of “[a]t least 700 [kilograms] but less than 1,000 [kilograms].”
9
See U.S.S.G. Ch. 5, Pt. A (2011), which shows that for offense level 30 and criminal
history category II, the guideline range is 108 to 135 months’ imprisonment.
10
See 21 U.S.C. § 841(b)(1)(B)(iii) (2011) (imposing a statutory mandatory minimum
sentence of 10 years’ imprisonment for any case involving at least 28 grams but less than 280
grams of crack cocaine where the defendant has previously been convicted of a felony drug
offense). As noted, Hippolyte had previously been convicted of felony possession of marijuana
and was responsible for 220 grams of crack cocaine.
11
Amendment 759 also made four other changes to the Sentencing Guidelines. First, it
added Amendment 750 to § 1B1.10(c), thereby making Amendment 750’s application in §
5
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Hippolyte correctly points out that Amendment 759 defined the term
“applicable guideline range” for the first time ever in the Sentencing Guidelines.
Under Amendment 759, a defendant’s applicable guideline range is now defined as
“the guideline range that corresponds to the offense level and criminal history
category determined pursuant to § 1B1.1(a), which is determined before
consideration of any departure provision in the Guidelines Manual or any
variance.” U.S.S.G. § 1B1.10 cmt. n.1(A) (2011). Prior to Amendment 759, this
court had defined the “applicable guideline range” as “the scope of sentences
available to the district court, which could be limited by a statutorily imposed
mandatory minimum ‘guideline sentence.’” United States v. Williams, 549 F.3d
1337, 1340 (11th Cir. 2008). In other words, prior to Amendment 759 this court
defined “applicable guideline range” to include any applicable mandatory
minimum sentence. But now, Hippolyte argues, that definition and the cases based
on it are obsolete because the Sentencing Commission has, in Amendment 759,
3582(c)(2) proceedings retroactive. See infra note 12. Second, it made otherwise appropriate
sentence reductions inappropriate for defendants that originally received sentences below the
guideline range unless the departure below the guideline range was for “substantial assistance to
authorities” under U.S.S.G. § 5K1.1. Third, it added Application Note 6 to § 1B1.10’s
Commentary, see infra note 15, requiring courts to use the Sentencing Guidelines in force at the
time of a § 3582(c)(2) proceeding. Fourth, it added a sentence to § 1B1.10 explaining that the
Supreme Court has held that § 3582(c)(2) proceedings are not governed by United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that § 1B1.10 is binding on
the courts. See Dillon v. United States, __U.S.__, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010).
6
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defined “applicable guideline range” to include only the offense level and criminal
history category, and to exclude any statutory mandatory minimums.
This is important because Commentary Application Note 1(A) to U.S.S.G. §
1B1.10 says that “[e]ligibility for consideration under 18 U.S.C. § 3582(c)(2) is
triggered only by an amendment listed in subsection (c)12 that lowers the
applicable guideline range.” Hippolyte argues that in accordance with this
Application Note, he was eligible for consideration under § 3582(c)(2) because it is
undisputed that Amendment 750 lowered his applicable guideline range—as
Hippolyte defines it—from 168 to 210 months to 108 to 13513 months because
Amendment 750 lowered his offense level from 34 to 30.14 Thus, he argues that
because his applicable guideline range was lowered he is eligible for § 3582(c)(2)
relief. 15 And he argues that the FSA applies to § 3582(c)(2) proceedings. Thus,
the statutory mandatory minimum sentence applicable to his crack cocaine
12
Amendment 750 is listed in subsection (c).
13
See supra note 9, for explanation of why his guideline range is 108 to 135 months’
imprisonment under Amendment 750.
14
Hippolyte’s criminal history category remained the same at II. See supra note 8, for
calculations supporting the reduction in Hippolyte’s offense level from 34 to 30 under
Amendment 750.
15
Hippolyte also correctly points out that Amendment 759 also added a Commentary
Application Note 6 to U.S.S.G. § 1B1.10 requiring a court to use the version of the Sentencing
Guidelines that is in effect at the time of the sentence reduction proceedings. Thus, Hippolyte
argues, the District Court should have used the new definition of “applicable guideline range” in
Amendment 759, which became effective November 1, 2011, when it considered and denied
Hippolyte’s motion for a sentence reduction on November 29, 2011.
7
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offenses is 120 months instead of 240,16 and his sentences should be reduced to a
term from 120 to 138 months.
In Dorsey v. United States, __ U.S. __, 132 S.Ct. 2321, 183 L.Ed.2d 250
(2012), the Supreme Court held that the more lenient statutory mandatory
minimum sentences for drug convictions found in the FSA apply to defendants
who committed crimes before the FSA but were sentenced subsequent to its
enactment. In addition to reducing minimum sentences, the FSA also required the
Sentencing Commission to promptly issue “conforming amendments” that would
lower sentence ranges in such a way as to make them proportional to the new
mandatory minimum sentences. The Dorsey Court held that even though the
Savings Statute, 1 U.S.C. § 109, required application of the FSA to pre-Act
offenders to be express in the FSA, and the FSA was silent on the subject, there
was a “fair implication” that Congress’s goals of consistency, avoiding disparity,
and eliminating unfairness implied that it intended the new minimums to so apply
to make mandatory minimums and the new guideline sentence ranges proportional.
Dorsey, 132 S.Ct. at 2326. Hippolyte argues that just as in post-FSA sentencing
of pre-FSA offenders, Congress also intended that the FSA apply to drug crime
sentence reductions under § 3582(c)(2) for the same reasons articulated in Dorsey,
16
21 U.S.C. § 841(b)(1)(B)(iii) (2012); see supra note 10, for explanation of why
Hippolyte’s statutory mandatory minimum under the FSA is 10 years instead of 20.
8
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and that therefore the statutory mandatory minimums found in the FSA must be
applied in conjunction with the retroactive guideline amendment that the FSA
directed the Sentencing Commission to promulgate. In sum, Hippolyte argues that
it would be inconsistent to apply the more lenient sentence ranges of Amendment
750, but keep the harsh pre-FSA mandatory minimums in § 3582(c)(2)
proceedings; they should thus be employed in tandem to eliminate disparities in
sentencing.
Finally, Hippolyte argues that there is no case on point that applies to the
facts of his case. Hippolyte cites United States v. Berry, 701 F.3d 374 (11th Cir.
2012), in which this court affirmed the denial of a sentence reduction for Berry, a
career offender, see U.S.S.G. § 4B1.1, who was seeking application of the FSA in
a § 3582(c)(2) proceeding, as the closest case. But Hippolyte argues that Berry is
inapposite because Berry was a career offender, not a drug offender whose
sentence was determined by the statutory mandatory minimum provision of 21
U.S.C. § 841(b)(1). And he argues that Berry’s sentence was determined solely by
his status as a career offender; as such, Berry relied solely on the FSA in
attempting to get his sentence reduced under § 3582(c)(2). He argues that he,
unlike Berry, relies on the FSA and Amendment 750, which adjusts the applicable
guideline range and thus makes him eligible for a sentence reduction under §
3582(c)(2).
9
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III.
A district court may modify a sentence if the defendant “has been sentenced
to a term of imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). “The grounds
upon which a district court may reduce a defendant’s sentence pursuant to §
3582(c)(2) are quite narrow.” Berry, 701 F.3d at 376 (citing United States v.
Armstrong, 347 F.3d 905, 909 (11th Cir. 2003)). “The Sentencing Commission
must have amended the Sentencing Guidelines, pursuant to 28 U.S.C. § 994(o),
that guidelines amendment must have lowered the defendant’s sentencing range,
and it must be one that is listed in U.S.S.G. § 1B1.10(c).” Id. (citing 18 U.S.C. §
3582(c)(2); U.S.S.G. § 1B1.10(a)(1) & cmt. n.1(A); Armstrong, 347 F.3d at 909.).
As explained in Berry, “where 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. (quoting United States v. Moore, 541 F.3d
1323, 1330 (11th Cir. 2008); citing U.S.S.G. § 1B1.10(a)(2)(B)). “In other words,
a reduction is not authorized if the amendment does not actually lower a
defendant’s applicable guideline range ‘because of the operation of another
guideline or statutory provision,’ such as a statutory mandatory minimum prison
term.” Id. (quoting U.S.S.G. § 1B1.10 cmt. n.1(A)). So when a defendant’s
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sentence is based on a statutory mandatory minimum under 21 U.S.C. § 841(b)(1)
that is above the applicable guideline range, “Amendment 750 does not lower that
guidelines sentence, and the defendant is not eligible for a § 3582(c)(2) sentence
reduction.” Id. (citing United States v. Glover, 686 F.3d 1203, 1207–08 (11th Cir.
2012)).
To begin with, we are unpersuaded that Hippolyte’s interpretation of
Amendment 759’s new definition of applicable guideline range is correct.
Amendment 759 defines the applicable guideline range as “the guideline range that
corresponds to the offense level and criminal history category determined pursuant
to § 1B1.1(a), which is determined before consideration of any departure provision
in the Guidelines Manual or any variance.” U.S.S.G. §1B1.10 cmt. n.1(A) (2011).
Section 1B1.1(a) prescribes an eight-step procedure for determining the applicable
guideline range. Steps one through five determine the defendant’s offense level.
Step six determines the defendant’s criminal history category. Step seven directs
use of the Sentencing Table to find the guideline range by cross-referencing the
previously-determined offense level and criminal history category. Step eight
directs use of Chapter Five Parts B through G to determine various sentencing
requirements and options. Section 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
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sentence.” U.S.S.G. § 5G1.1(b). Thus, when one uses § 1B1.1(a) to determine the
applicable guideline range, one necessarily is required to take into account the
mandatory minimum sentences that may be statutorily required.
Further, the new definition of applicable guideline range found in
Amendment 759 nowhere mentions statutorily required mandatory minimum
sentences. It does say that the applicable guideline range should be calculated
“before consideration of any departure provision in the Guidelines Manual or any
variance.” U.S.S.G. § 1B1.10 cmt. n.1(A). But a mandatory minimum sentence is
neither a departure provision nor a variance. A departure provision is a change to a
sentencing guideline range based on, e.g., substantial assistance to authorities. See
U.S.S.G. § 5K1.1 (2011). A variance is a sentence imposed that is outside the
Guidelines Manual guideline range. See, e.g., Gall v. United States, 552 U.S. 38,
47, 128 S.Ct. 586, 594–95, 169 L.Ed.2d 445 (2007) (discussing variances, or
sentences outside the guideline range, and holding that there need not be
extraordinary circumstances to justify a variance). What is more, Amendment 759
itself explained 17 that the reason for adding the definition of applicable guideline
range to the Sentencing Guidelines was that there was a circuit split over which
specific departures should be considered part of the sentencing range. Several
17
See Amendment 759, U.S.S.G. App. C – Vol. III, at 421 (Nov. 2011).
12
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courts of appeals had held that some departures were part of the applicable
guideline range, while others had held that no departures should be considered part
of the applicable guidelines range. 18 Amendment 759 issued to clear up this
confusion by specifying that no departures are part of the applicable guideline
range. In fine, it is clear that the new definition of applicable guideline range has
nothing to do with mandatory minimums and does nothing to alter this court’s rule
that the applicable guideline range is “the scope of sentences available to the
district court, which could be limited by a statutorily imposed mandatory minimum
‘guideline sentence.’” United States v. Williams, 549 F.3d 1337, 1340 (11th Cir.
2008). As a result, Hippolyte’s arguably creative argument to the contrary fails.
Here, the District Court did not err in denying Hippolyte’s § 3582(c)(2)
motion. As noted supra, note 3, § 3582(c)(2) requires that any sentence reduction
be “consistent with applicable policy statements issued by the Sentencing
Commission.” The Sentencing Guidelines explain that 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 th[e] policy
statement if . . . an amendment . . . is applicable to a defendant but the
amendment does not have the effect of lowering the defendant’s
18
Id. (“The First, Second, and Fourth Circuits have held that, for § 1B1.10 purposes, at
least some departures (e.g. departures under § 4A1.3 (Departures Based on Inadequacy of
Criminal History Category) (Policy Statement)) are considered before determining the applicable
guideline range, while the Sixth, Eighth, and Tenth Circuits have held that ‘the only applicable
guideline range is the one established before any departures.’”).
13
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applicable guideline range because of the operation of another
guideline or statutory provision (e.g., a statutory mandatory minimum
term of imprisonment).
United States v. Glover, 686 F.3d 1203, 1206 (11th Cir. 2012) (emphasis in
original) (quoting U.S.S.G. § 1B1.10 cmt. n.1(A)). Amendment 750 has no effect
on Hippolyte’s sentence because it did not alter the statutory mandatory minimum
sentence Hippolyte received.
As Berry explained, even if Hippolyte could bring his § 3582(c)(2) claim, it
would fail because the FSA does not apply retroactively to his 1996 sentence.
“Nothing in the FSA extinguishes the statutory mandatory minimum sentence or
penalty already imposed in Berry’s case before the FSA’s enactment. We agree
with every other circuit to address the issue that there is ‘no evidence that Congress
intended [the FSA] to apply to defendants who had been sentenced prior to the
August 3, 2010 date of the Act’s enactment.’”. Berry, 701 F.3d at 377 (quoting
United States v. Baptist, 646 F.3d 1225, 1229 (9th Cir. 2011) (citing cases)). Berry
explained that the general savings clause in 1 U.S.C. § 109 required the FSA to say
so expressly if it were to apply to defendants already sentenced. Berry also
interpreted Dorsey and found no suggestion in it “that the FSA’s new mandatory
minimums should apply to defendants, like Berry, who were sentenced long before
the FSA’s effective date.” Id. at 377. Berry quoted the Court’s statement in
Dorsey that “in federal sentencing the ordinary practice is to apply new penalties to
14
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defendants not yet sentenced, while withholding that change from defendants
already sentenced.” Id. at 378.
Hippolyte’s attempts to distinguish Berry are unavailing. First, Hippolyte
argues that Berry was a career offender under U.S.S.G. § 4A1.1, whereas
Hippolyte was sentenced under the statutory mandatory minimums of 21 U.S.C. §
841(b)(1). We held in United States v. Mills that such a distinction lacks
substance. 613 F.3d 1070, 1078 (11th Cir. 2010) (“Although Moore involved
defendants with career offender designations, those designations acted like
statutory mandatory minimums.”). Second, Hippolyte argues that Berry relied
solely on the FSA in advancing his § 3582(c)(2) claim, while Hippolyte advances
his claim under both the FSA and Amendment 750. But, as shown, Amendment
750 has no application here because it does not lower Hippolyte’s guidelines
sentence range. Thus, this distinction too lacks substance. Berry controls and we
follow it here.
Because the FSA does not apply to Hippolyte’s case, the statutory
mandatory minimums that do are the ones that were in place when Hippolyte was
sentenced in 1996. Section § 3582(c)(2) does not authorize a sentence reduction if
a guidelines amendment does not have the effect of reducing the defendant’s
sentence. For the foregoing reasons, the judgment of the District Court is
AFFIRMED.
15