United States v. Adolfo Wren

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 12-1565 & 12-1580

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

A DOLFO W REN and A NTHONY M OTON,

Defendants-Appellants.

Appeals from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:06-CR-234—Rudy Lozano, Judge.
No. 2:08-CR-3—James T. Moody, Judge.

A RGUED O CTOBER 26, 2012—D ECIDED F EBRUARY 7, 2013

Before E ASTERBROOK, Chief Judge, and C UDAHY and
T INDER, Circuit Judges.
E ASTERBROOK, Chief Judge. After Congress reduced
from 100:1 to 18:1 the ratio between crack and powder
cocaine for purposes of statutory minimum and maxi-
mum sentences, see Dorsey v. United States, 132 S. Ct.
2321 (2012), the Sentencing Commission made corre-
sponding changes to the Guideline ranges for crack.
2 Nos. 12-1565 & 12-1580

Amendment 750 makes the changes; Amendment 759
authorizes retroactive application. Adolfo Wren and
Anthony Moton asked the district court to cut their
sentences. The applications went to different judges;
both said no.
Wren and Moton are serving sentences below the
normal statutory floor, often but misleadingly called
a “mandatory minimum.” The word “mandatory” is
imprecise because judges may give lower sentences to
nonviolent first offenders (the “safety valve” provision
in 18 U.S.C. §3553(f)) and defendants who help with
the investigation and prosecution of their confed-
erates (18 U.S.C. §3553(e); 28 U.S.C. §994(n); see also
U.S.S.G. §5K1.1). Wren and Moton provided valuable
assistance and received sentences lower than the pre-
sumptive floor of 120 months’ imprisonment. 21 U.S.C.
§841(a)(1), (b)(1). The original sentencing range for each
was 121 to 151 months; each original sentence was
100 months. Amendment 750 affects them differently,
because they are responsible for different quantities of
cocaine. The new range for Wren is 100 to 125 months,
and the new range for Moton is 84 to 105 months.
A district judge may reduce a sentence if a change to
the Sentencing Guidelines allows. 18 U.S.C. §3582(c)(2).
The district judges concluded that U.S.S.G. §5G1.1
prevents Wren and Moton from receiving lower sen-
tences: it provides that, when all or part of a Guideline
range lies below a statutory minimum sentence, the
statutory minimum becomes the lower bound of the
range. Thus the “range” becomes a point if the whole
Nos. 12-1565 & 12-1580 3

range otherwise would be less than the statutory floor. If
§5G1.1 applies, then the amended range for Moton
is 120 months, and the amended range for Wren is 120-
125 months. The prosecutor argued, and both district
judges concluded, that the ranges for Wren and Moton
had not really been reduced by Amendment 750—and
only defendants who are beneficiaries of a lower range
can receive lower sentences. See §1B1.10(a)(2)(B).
But does §5G1.1 apply? The prosecutor says yes
because, to know whether any given defendant’s range
has been cut, the district court must work through the
sequence prescribed in §1B1.1. That Guideline includes
(see §1B1.1(a)(7)) a reference to Chapter Five, which
contains §5G1.1 and sets the new range at 120 months.
The old range for both Wren and Moton was 121 to
151 months, so it has declined by one month even on the
prosecutor’s understanding. That’s not enough to help
these defendants, the prosecutor insists, because both are
serving below-range sentences. Guideline 1B1.10(b)(2)(B)
provides that a defendant whose sentence is below
the original Guideline because of the prosecutor’s sub-
stantial-assistance motion may receive a new sentence
that is “comparably less than the amended guideline
range”. The original 100-month sentences of both Moton
and Wren were 17% below the bottom of their original
ranges; take 17% off the new range of precisely
120 months and you still get 100 months (since the
result, 99.6 months, would be rounded up). The two
district judges followed this approach and left each de-
fendant’s sentence unchanged.
4 Nos. 12-1565 & 12-1580

The prosecutor’s preferred approach relies on
§1B1.1(a)(7), the pointer to §5G1.1. Section 1B1.1 is the
starting point for sentencing—yet the application of a
retroactive Guideline is not supposed to be a new sen-
tencing. See Dillon v. United States, 130 S. Ct. 2683 (2010);
§1B1.10(a)(3). Guideline 1B1.10 (entitled “Reduction in
Term of Imprisonment as a Result of Amended Guideline
Range”) is the right starting point when a prisoner seeks
a lower sentence. And §1B1.10(b)(1) tells a court not
to work through the sequence in §1B1.1 as if it were
sentencing the prisoner afresh. It provides (emphasis
added):
[T]he court shall determine the amended guide-
line range that would have been applicable to
the defendant if the amendment(s) to the guide-
lines listed in subsection (c) had been in effect
at the time the defendant was sentenced. In
making such determination, the court shall substi-
tute only the amendments listed in subsection (c)
for the corresponding guideline provisions that
were applied when the defendant was sentenced
and shall leave all other guideline application decisions
unaffected.
In other words, the court is supposed to start not with
§1B1.1, but with its own original calculation, then swap
the amended Guideline range into that calculation
without making any other change. See also §1B1.10 Ap-
plication Note 2. This means that, if §5G1.1 did not
affect the original calculation, it does not come into play
when a court considers the effect of a retroactive
change to the Guidelines.
Nos. 12-1565 & 12-1580 5

Guideline 1B1.10(b)(2)(B), which we have already
mentioned, reinforces this understanding. It says that
prisoners whose original sentences are below the pre-
sumptive statutory minimum are eligible for a reduction
“comparably less than the amended guideline range”.
Under the prosecutor’s approach, however, the range
of prisoners who have received a lower sentence
to reward substantial assistance would be reset at the
statutory minimum, and they could lose all benefit of
the retroactive change to the Guidelines, as Wren and
Moton did. The prosecutor does not suggest any
reason why the Sentencing Commission would have
disabled persons who provided substantial assistance
from receiving the benefit of the lower penalty for crack
cocaine. Nothing in the revised Guidelines, or the ex-
planations for them in Amendments 750 and 759, hints
at a goal of giving uncooperative defendants greater
sentence reductions than those available for coopera-
tive defendants. Reading §1B1.10 the way we have
done allows both types of defendants to gain and
preserves the reward for cooperation, a reward that the
prosecutor’s reading would diminish or even abolish.
According to the prosecutor, several other courts of
appeals have held that a recalculation of the Guideline
range after a retroactive change requires the district court
to return to §1B1.1, and thus to §5G1.1, which resets the
range at the presumptive statutory minimum. See
United States v. Doe, 564 F.3d 305 (3d Cir. 2009); United
States v. McClain, 691 F.3d 774 (6th Cir. 2012); United States
v. Glover, 686 F.3d 1203 (11th Cir. 2012); United States v.
Williams, 549 F.3d 1337 (11th Cir. 2008). What these deci-
sions have in common is that the original Guideline cal-
6 Nos. 12-1565 & 12-1580

culation entailed the use of §5G1.1 to tie the range to
the statutory minimum sentence. Then a straightforward
application of §1B1.10 means that the statutory mini-
mum continues to govern—for §1B1.10(b)(1) says to
plug in the revised Guideline and “leave all other
guideline application decisions unaffected.” One of the
“unaffected” decisions is the use of a statutory mini-
mum sentence to supersede the otherwise-applicable
range. Guideline 1B1.10(a)(2)(B) provides that a dis-
trict court cannot reduce a sentence when “[a]n amend-
ment . . . does not have the effect of lowering the defen-
dant’s applicable guideline range”—and Application
Note 1(A) observes that the operation of a statutory
minimum term of imprisonment produces one of the
situations in which the amendment does not lower
the applicable range.
The original calculation for Wren and Moton did not
include the use of §5G1.1 to set the range at a statutory
minimum, so the command in §1B1.10(b)(1) to use the
new range and “leave all other guideline application
decisions unaffected” means that the new range must not
be reset to equal the presumptive statutory minimum.
For most prisoners the statutory minimum continues to
limit the district court’s authority, because a statute
prevails over an inconsistent Guideline. See Dorsey, 132
S. Ct. at 2329, 2335; Neal v. United States, 516 U.S. 284
(1996); United States v. Robinson, 697 F.3d 443 (7th Cir.
2012); United States v. Cannon, 429 F.3d 1158 (7th Cir.
2005). But when a district court is authorized (by the
prosecutor’s substantial-assistance motion or a safety-
valve reduction) to give a sentence below the presumptive
statutory floor, that authority is equally applicable to
Nos. 12-1565 & 12-1580 7

a sentence-reduction motion after a change in the Guide-
line range.
Only one decision we have found deals with the situa-
tion in which Wren and Moton found themselves—an
original Guideline range above the statutory floor, a
sentence below that floor because of substantial assistance
to the prosecutor, and a retroactive change to the Guide-
lines that (apart from §5G1.1) permits a reduction in
the sentence. United States v. Liberse, 688 F.3d 1198 (11th
Cir. 2012), holds that in these circumstances the district
court may grant a motion under §3582(c)(2) without
resetting the Guideline range at the statutory minimum.
We agree with that conclusion, for the reasons we
have given.
The Sentencing Commission may want to take a close
look at the way §1B1.10(b)(1) works when the original
sentencing range is at a presumptive statutory mini-
mum. It is difficult to see why prisoners in that situation
who received a substantial-assistance or safety-valve
sentence should be excluded from a retroactive
Guideline reduction, while prisoners whose original
ranges were just slightly above the statutory floor are
eligible for the benefit of the retroactive change. That is
how the Guidelines work as currently written, however.
Wren and Moton are entitled to seek relief under
§3582(c)(2) as the Guidelines stand, and we remand so
that the district judges may exercise the discretion
they possess.
V ACATED AND R EMANDED

2-7-13