Case: 08-20235 Document: 00511015054 Page: 1 Date Filed: 01/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 28, 2010
No. 08-20235 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ADRIAN LEWIS CARTER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and SMITH and ELROD, Circuit Judges.
PER CURIAM:
Adrian Lewis Carter appeals the denial of his motion to reduce his
sentence in response to a recent change to the federal sentencing guidelines for
crimes involving crack cocaine. Because Carter’s sentence was based on a
minimum prescribed by statute, we AFFIRM.
I. Background and Proceedings
In June 2005, Carter pleaded guilty to (1) possession, with intent to
distribute, of 50 grams or more of a mixture containing cocaine base (i.e. crack
cocaine), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and (2) possession
of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A). The district court sentenced Carter to 96 months of imprisonment
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for these offenses, including 36 months for the possession with intent to
distribute count, and 60 months for the firearms count.
Only the calculation of the possession count is presently at issue. The
district court admonished Carter at the time of his plea that he faced a statutory
minimum penalty of 120 months’ imprisonment for this count. See 21 U.S.C. §
841(b)(1)(A). This statutory minimum was greater than the high end of the
sentencing guideline range of 87 to 108 months calculated in the Presentence
Report.1 Accordingly, the 120-month statutory minimum became the applicable
“guideline sentence.” See U.S.S.G. § 5G1.1(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.”). Prior to sentencing, the government filed a motion for a downward
departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, based on Carter’s
substantial assistance. As it was permitted to do, the district court granted the
motion, sentencing Carter to 36 months rather than the longer terms called for
by the guideline range and statutory minimum.
Effective November 1, 2007, the United States Sentencing Commission
amended the sentencing guidelines applicable to crack cocaine offenses,
including the offense now at issue. See U.S.S.G. app. C, amend. 706, at 226–31
(Supp. 2008) (amending U.S.S.G. § 2D1.1(c)); U.S.S.G. app. C, amend. 713, at
253 (Supp. 2008) (making Amendment 706 retroactively applicable). It is
undisputed that if the terms of this amendment had applied, Carter’s base
offense level would have been lower, and accordingly, the 87 to 108 month
guideline range would have been lower as well.
In April 2008, Carter filed a motion under 18 U.S.C. § 3582(c)(2) for a
reduction of sentence based on Amendments 706 and 713. He argued that his
1
Carter does not dispute this calculation or the district court’s determination that his
crime made the statutory minimum sentence applicable.
2
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36-month sentence represented a 59 percent reduction from the 87-month low
end of the Presentence Report’s guideline calculation, that a correct guideline
range in light of the crack cocaine amendments would be 70 to 87 months, and
therefore that the district court should reduce this portion of his sentence to 59
percent below 70 months. This would result in a sentence of 29 months, rather
than 36, on the possession count.
The district court denied the motion on the ground that “the defendant is
ineligible as he must serve the mandatory minimum,” and denied a motion for
reconsideration. This appeal followed.
II. Analysis
As a general matter, we review a decision whether to reduce a sentence
under § 3582(c)(2) for abuse of discretion. United States v. Cooley, — F.3d —,
2009 WL 4642610, at *1 (5th Cir. Dec. 9, 2009). However, we review the district
court’s interpretation of the guidelines and sentencing statutes de novo. Id.;
United States v. Salazar, 542 F.3d 139, 144 (5th Cir. 2008). Here the question
is whether the district court correctly concluded that Carter is ineligible for a
sentence reduction under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, in light
of the statutory minimum sentence imposed by 21 U.S.C. § 841(b)(1)(A).2 We
conclude that under these provisions, Carter is not eligible for the reduction.
Title 18 U.S.C. § 3582(c) prohibits district courts from “modify[ing] a term
of imprisonment once it has been imposed,” but § 3582(c)(2) provides an
exception for a sentence based on a sentencing range that the Sentencing
Commission subsequently lowers:
2
Carter notes that the district court stated that “the defendant is ineligible as he must
serve the mandatory minimum,” when in fact Carter’s original sentence was well below the
statutory minimum. He therefore asks for remand to provide the district court with an
opportunity to clarify its ruling. It seems clear enough to us that the district court ruled that
Carter is not entitled to a reduction because his sentence was based on a statutory minimum
rather than the guideline range that was subsequently amended.
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[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) to the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the
Sentencing Commission.
The applicable policy statement is U.S.S.G. § 1B1.10. In Carter’s case there is
no dispute that the applicable guideline range was 87 to 108 months, and that
the crack cocaine amendments lowered that range. The question is whether
Carter’s sentence was “based on” that range for purposes of the statute.
The Fourth Circuit has considered this question in comparable
circumstances and concluded 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. See United States
v. Hood, 556 F.3d 226, 233 (4th Cir.), cert. denied, 130 S. Ct. 321 (2009). Hood
considered the sentences of two defendants in remarkably similar circumstances
to Carter. Both were sentenced for crack cocaine trafficking based on mandatory
minimum sentences under 21 U.S.C. § 841(b)(1)(A), but received downward
departures for substantial assistance to the government under 18 U.S.C. §
3553(e). Id. at 228. They later requested proportionate reductions in their
sentences to reflect the impact the crack cocaine amendments would have had
on their guideline range calculations. Id. The court concluded that
[T]he defendants’ sentences in these appeals were “based on” the
statutorily mandated minimum sentence, not “based on a
sentencing range” lowered by Amendment 706, and were reduced by
the district court under 18 U.S.C. § 3553(e) only for each defendant’s
substantial assistance to the government, not because of the
application of any “guideline range” lowered by Amendment 706.
4
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Id. The court accordingly concluded the defendants were not entitled to a
sentence reduction under 18 U.S.C. § 3582(c)(2), and affirmed the denial of the
defendants’ motions for sentence reduction. Id. at 237–38. Two other circuits
have reached essentially the same conclusion under similar circumstances. See
United States v. Byers, 561 F.3d 825, 832 (8th Cir. 2009); United States v.
Williams, 549 F.3d 1337, 1341–42 (11th Cir. 2008).
We find the Fourth Circuit’s analysis persuasive as applied to Carter. The
phrase “based on a sentencing range” straightforwardly aligns with the familiar
sentencing practice of initially calculating a base range and then considering
grounds for departing from it. In contrast to that typical situation, when an
applicable statutory minimum sentence is greater than the high end of the
guideline range, that minimum—not the otherwise applicable guideline range—
is the starting point for sentencing. See U.S.S.G. § 5G1.1(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.”). Indeed, the district court lacks authority to impose a
sentence below the statutory minimum absent a statutory exception.3 See United
States v. Phillips, 382 F.3d 489, 499 (5th Cir. 2004) (“[A] district court may
impose a sentence of imprisonment below a statutory minimum for a drug crime
only if: (1) the Government makes a motion pursuant to 18 U.S.C. § 3553(e)
asserting the defendant’s substantial assistance to the Government; or (2) the
defendant meets the ‘safety valve’ criteria set forth in 18 U.S.C. § 3553(f).”).
There is no dispute that Carter was subject to a statutory minimum sentence
greater than the high end of his guideline calculation, whether calculated with
3
The rigidity of statutory sentencing rules stands in contrast to the advisory nature
of guideline sentencing ranges under United States v. Booker, 543 U.S. 220 (2005).
5
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or without the crack cocaine amendments. In this circumstance, the sentence
was “based on” the statutory minimum, not the guideline range.4
The application of a downward departure under 18 U.S.C.§ 3553(e) does
not alter this analysis. Section 3553(e) provides:
Upon motion of the Government, the court shall have the authority
to impose a sentence below a level established by statute as a
minimum sentence so as to reflect a defendant’s substantial
assistance in the investigation or prosecution of another person who
has committed an offense. Such sentence shall be imposed in
accordance with the guidelines and policy statements issued by the
Sentencing Commission pursuant to section 994 of title 28, United
States Code.
Carter proposes that when the district court granted the government’s motion
for a reduced sentence under § 3553(e), the statutory minimum sentence no
longer applied. Thus, he argues that the district court should have applied “the
guidelines and policy statements issued by the Sentencing Commission,” which
Carter interprets to refer to the otherwise applicable guideline range. We do not
agree with this interpretation of § 3553(e).
4
In this situation where a statutory minimum applies and can only be modified based
on statutory exceptions, it does not matter to the sentence-reduction analysis that a district
court may have considered or purported to rely on general guideline provisions when
calculating the extent of a downward departure. The applicable statutes and Sentencing
Commission policy statements do not authorize this approach, see Hood, 556 F.3d at 234–35,
and we will not consider a sentence to be “based on” informal or erroneous considerations. For
this reason among others, we are unpersuaded by Carter’s citation to the Sixth Circuit’s
unpublished opinion in United States v. Rickett, 52 F.3d 327, 1995 WL 234665 (6th Cir. 1995).
See id. at *3, *2 (concluding that sentence was “based on an application of the sentencing
guidelines,” because the district court had considered the guidelines in the course of
calculating a sentence based on a downward departure from a statutory minimum).
Furthermore, to the extent that our very brief unpublished opinion in United States v.
Morales, 160 F. App’x 340 (5th Cir. 2005) (per curiam), contradicts our analysis on this point,
we disapprove of its reasoning. See id. at *340–41 (finding Booker error not harmless in
sentence based on a downward departure from a statutory minimum, because the district
court appeared to have relied on the otherwise applicable guideline range, and it “might have
selected” a lower sentence if enhancements based on judicial fact-finding had not been
included in that range).
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Nothing in § 3553(e) indicates that a statutory minimum sentence gives
way to an otherwise applicable guideline range when a district court reduces the
sentence based on the defendant’s substantial assistance to the government.
Rather, § 3553(e) describes the familiar procedure of a downward departure from
a baseline sentence. The Sentencing Commission has indicated that the
applicable policy statement for § 3553(e) is U.S.S.G. § 5K1.1, which is the
general provision governing downward departures from the guidelines. See
§ 5K1.1, Commentary 1. Section 5K1.1 provides that “[u]pon motion of the
government stating that the defendant has provided substantial assistance . . .
the court may depart from the guidelines” (emphasis added). Accordingly, the
Commission implicitly considers a statutory minimum sentence to be analogous
to a low-end guideline from which the court may depart. That is the
interpretation we give to § 3553(e) as well. Accord Hood, 556 F.3d at 235
(Ҥ 3553 allows for a departure from, not the removal of, a statutorily required
minimum sentence.” (citing United States v. Pillow, 191 F.3d 403, 407 (4th Cir.
1999)); Williams, 549 F.3d at 1341. Furthermore, inasmuch as the statutory
minimum remains the baseline sentence from which the court may downwardly
depart, we do not agree with Carter that the phrase “in accordance with the
guidelines and policy statements issued by the Sentencing Commission” refers
to ordinary guideline ranges. Instead, we interpret it to refer to such guidelines
and policy statements as the Commission may create specifically to implement
§ 3553(e). As noted in Hood, 556 F.3d at 235, the applicable policy statement is
the downward departure provision of U.S.S.G. § 5K1.1, which states principles
for determining whether and how far to downwardly depart; the sentencing
commission has not created any further “sentencing ranges” for such downward
departures.
Nor are we persuaded that U.S.S.G. § 1B1.10—the policy statement
providing guidance for reduction of sentences under § 3582(c)(2)—supports a
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reduction of sentence. Whereas § 3582(c)(2) allows modification only of
sentences “based on” amended sentencing ranges, Carter notes that under
§ 1B1.10(a)(1), a reduction may be appropriate if “the guideline range applicable
to [the] defendant has subsequently been lowered as a result of [certain
amendments].” (emphasis added); see also § 1B1.10(a)(2) (“A reduction . . . is not
authorized [if the amendment] does not have the effect of lowering the
defendant’s applicable guideline range.”) (emphasis added). Carter argues that
the 87 to 108 month range is “the guideline range applicable” in his case, even
though a statutory minimum guideline sentence superseded that range. Cf.
U.S.S.G. § 5G1.1(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.” (emphasis added)).
We reject this argument because we conclude that the term “guideline
range applicable” in § 1B1.10 includes a statutory minimum sentence when such
a minimum applies. We have noted above that U.S.S.G. § 5K1.1 uses the phrase
“depart from the guidelines” to describe downward departures from both
ordinary guideline ranges and statutory minimum sentences. Similarly, we
agree with the Eleventh Circuit that for purposes of determining eligibility for
a sentence reduction, the statutory-minimum “guideline sentence” becomes the
applicable “guideline range”:
The term “guideline range” reflects the scope of sentences available
to the district court, which could be limited by a statutorily imposed
mandatory minimum “guideline sentence.” Accordingly, when a
mandatory minimum exceeds some portion of the range for the base
offense level, the applicable “guideline range” would be from that
minimum to the upper end of the original guideline range. See
[United States v. Pope, 58 F.3d 1567, 1568 n.1 (11th Cir. 1995)]
(noting that “because of the statutorily mandated minimum of ten
years, Pope’s guidelines range became 120 to 121 months”). For
those situations in which the mandatory minimum exceeds the
range for the entire offense level, the “guideline sentence” would
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thus be the same as the “guideline range,” even if it involves a
“range” of only one number.
Williams, 549 F.3d at 1340–41; accord Byers, 561 F.3d at 831. Accordingly, the
“guideline range applicable” refers to the statutory minimum sentence, and a
subsequent amendment to a different provision (the unutilized guideline range
calculation) does not provide grounds for a sentence reduction.
This interpretation finds further support in the Application Note to
§ 1B1.10(a)(1), which makes clear beyond peradventure that in the view of the
Commission, a party in Carter’s position is not entitled to a sentence reduction
under § 3582(c)(2):
Eligibility for consideration under 18 U.S.C. 3582(c)(2) is triggered
only by an amendment listed in subsection (c) that lowers the
applicable guideline range. Accordingly, 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 this policy statement if: (i)
None of the amendments listed in subsection (c) is applicable to the
defendant; or (ii) an amendment listed in subsection (c) is applicable
to the defendant but the amendment does not have the effect of
lowering the defendant’s applicable guideline range because of the
operation of another guideline or statutory provision (e.g., a
statutory mandatory minimum term of imprisonment).
We are bound to treat this commentary as “authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous
reading of, [the] guideline.” United States v. Johnston, 559 F.3d 292, 295 n.4
(5th Cir. 2009) (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)). Under
that standard, the Application Note controls. Carter has, at most, identified an
ambiguity or inconsistency in the Sentencing Commission’s use of the adjective
“applicable.” That is not enough to overcome the Sentencing Commission’s
clearly expressed interpretation of § 1B1.10(a)(1), which is consistent with our
interpretation of 18 U.S.C. § 3582(c)(2).
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III. Conclusion
In light of the analysis above, we join the Fourth, Eighth, and Eleventh
Circuits and hold that when a defendant is subject to a statutory minimum
sentence above the upper end of his guideline range, even if the district court
departs downwardly from that minimum under a statutory exception, 18 U.S.C.
§ 3582(c)(2) provides no authority to the district court to later modify the
sentence based on amendments to the guideline range. The ruling of the district
court denying Carter’s motion for reduction of sentence is accordingly
AFFIRMED.
10