United States Court of Appeals
For the First Circuit
No. 08-2490
UNITED STATES OF AMERICA,
Appellee,
v.
EDDY ROA-MEDINA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, Michael J. Gunnison,
Acting United States Attorney, and Aixa Maldonado-Quiñones,
Assistant United States Attorney, were on brief, for appellee.
Chauncy B. Wood, Wood & Nathanson LLP, for appellant.
June 2, 2010
LIPEZ, Circuit Judge. The Sentencing Reform Act of 1984
("Reform Act") authorizes the district courts to modify a term of
imprisonment for a defendant who was sentenced "based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission." 18 U.S.C. § 3582(c)(2). In this case,
defendant Eddy Roa-Medina was originally sentenced to a statutory
minimum term of imprisonment of 120 months for distributing cocaine
base ("crack"). He was then given a reduced sentence pursuant to
Federal Rule of Criminal Procedure 35(b), which authorizes a
departure "below the minimum sentence established by statute" if
the defendant provides "substantial assistance in investigating or
prosecuting another person." The U.S. Sentencing Commission
subsequently amended the Sentencing Guideline applicable to crack
offenders in an attempt to mitigate the disparity between crack
cocaine sentences and powder cocaine sentences.
The question before us is whether Roa-Medina is eligible
for a sentence modification under the Reform Act. We conclude that
he is not.
I.
Roa-Medina pleaded guilty in 2006 to four counts of
distributing controlled substances. Among the counts of conviction
were two counts of distributing fifty grams or more of crack, an
offense punishable by a statutory minimum term of 120 months
imprisonment. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii). At
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the sentencing hearing, the district court determined that Roa-
Medina was responsible for 213.46 grams of crack, a quantity that
yielded a base offense level of 34 under the version of the
Sentencing Guidelines Manual in effect at the time.1 See U.S.
Sentencing Guidelines Manual § 2D1.1(c)(3) (Mar. 2006). The court
then reduced the base offense level to 31 to reflect Roa-Medina's
acceptance of responsibility; determined that Roa-Medina had a
criminal history category of I; and calculated an unrestricted
guidelines range (i.e., one not taking into account the statutory
limitations) of 108 to 135 months imprisonment based on those
values. After accounting for the statutory minimum sentence, the
district court determined that Roa-Medina was subject to a
restricted guidelines range of 120 to 135 months. It sentenced
Roa-Medina to the statutory minimum term of 120 months
imprisonment.
Roa-Medina subsequently agreed to assist the government
by testifying in a related criminal case. The government moved for
a reduction of his sentence pursuant to Federal Rule of Criminal
Procedure 35(b). The government recommended that the district
court calculate the extent of the reduction by lowering Roa-
Medina's offense level "from 31 to 26, which would result in a
1
The district court also held Roa-Medina responsible for
18.43 grams of heroin, which required it to convert both drugs to
their marijuana equivalents and then combine the two quantities.
Because the quantity of heroin does not affect our analysis, we
will refer solely to the quantity of cocaine base.
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sentence range of 63 to 78 months," and reducing his sentence "from
120 months to 72 months, a 40% reduction." The district court
granted the motion and adopted the government's proposed
methodology. It declared that Roa-Medina's "offense level is
reduced to 26" and determined that the "result[ing]" guidelines
range was 63 to 78 months. The district court then imposed an
amended sentence of 72 months imprisonment, which was 40% less than
the original sentence.
Shortly thereafter, the U.S. Sentencing Commission issued
a retroactive amendment to the Guidelines Manual aimed at
mitigating the disparity between crack cocaine sentences and powder
cocaine sentences. See USSG app. C, amend. 706, 713. Generally
speaking, the amendment "adjust[ed] downward by two levels the base
offense level ascribed to various quantities of crack cocaine" in
the Guidelines Manual drug quantity table. United States v.
Caraballo, 552 F.3d 6, 8 (1st Cir. 2008). If it had been in effect
at the time of Roa-Medina's original sentencing and at the time of
his Rule 35(b) hearing, the district court would have begun its
calculations with a base offense level of 32 rather than 34. Roa-
Medina attempted to take advantage of the change by filing a motion
under 18 U.S.C. § 3582(c)(2), which allows the district courts to
modify previously imposed sentences in certain situations to
account for retroactive guidelines amendments. The district court
denied the motion in a brief order, concluding that Roa-Medina did
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not qualify for a sentence reduction because he "was subject to a
10 year mandatory minimum sentence." Roa-Medina now appeals from
that decision.
II.
As a general rule, the district courts may not modify a
term of imprisonment once it has been imposed. See 18 U.S.C.
§ 3582(c). The general rule has exceptions, however. Of relevance
here, the Reform Act 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 . . .,
the court may reduce the term of
imprisonment . . . if such a reduction is
consistent with applicable policy statements
issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
A defendant may seek a sentence reduction under
§ 3582(c)(2) only if he meets a threshold eligibility requirement:
he must have been "[1] sentenced to a term of imprisonment
[2] based on a sentencing range [3] that has subsequently been
lowered by the Sentencing Commission." The proposed reduction must
also be "consistent with applicable policy statements issued by the
Sentencing Commission" -- most relevantly, section 1B1.10 of the
Guidelines Manual.2 The district court denied Roa-Medina's motion
2
Pursuant to the authority granted in 28 U.S.C. § 994(u),
the Sentencing Commission promulgated section 1B1.10 to "provide[]
guidance and limitations for a court when considering a motion
under 18 U.S.C. § 3582(c)(2)." USSG § 1B1.10 cmt. background.
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for a sentence reduction on the ground that the threshold
requirement was not satisfied. Roa-Medina's appeal from that
decision raises a pure question of law, and our standard of review
is de novo. United States v. Fanfan, 558 F.3d 105, 107 (1st Cir.
2009); Caraballo, 552 F.3d at 9.
Roa-Medina's argument is straightforward. He claims that
his current 72-month term of imprisonment is "based on a sentencing
range" that was lowered by the Sentencing Commission's amendment to
the crack guideline. As he correctly points out, the district
court arrived at the 72-month sentence by starting with a base
offense level of 34; factoring in a three-level reduction for
acceptance of responsibility and a five-level reduction for
substantial assistance; cross-referencing the adjusted offense
level of 26 with Roa-Medina's criminal history category of I; and
then selecting a sentence within the resulting guidelines range of
63 to 78 months. If the amendment had been in effect when the
government filed its Rule 35(b) motion, Roa-Medina argues, the
Although the key eligibility language in the policy statement
varies slightly from the statutory language, compare 18 U.S.C.
§ 3582(c)(2) (referring to cases in which the defendant has been
"sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered"), with USSG § 1B1.10(a)(1)
(referring to cases in which the defendant "is serving a term of
imprisonment, and the guideline range applicable to that defendant
has subsequently been lowered"), we agree with the Tenth Circuit
that, for all purposes relevant to this appeal, the two provisions
are "identical" and "convey[] the same meaning." United States v.
Darton, 595 F.3d 1191, 1194 (10th Cir. 2010) (quoting United States
v. Dryden, 563 F.3d 1168, 1170-71 (10th Cir. 2009)).
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district court would have started with an amended base offense
level of 32 instead of 34. After accounting for Roa-Medina's
acceptance of responsibility and substantial assistance, the final
offense level would have been 24 instead of 26, and the resulting
guidelines range would have been significantly lower: 51 to 63
months.
The government counters that Roa-Medina's sentence is
"based on" a statutory minimum rather than the Sentencing
Guidelines. On the government's theory, Roa-Medina is not eligible
for a sentence reduction because the statutory minimum has not been
"lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(2);
see also United States v. Ganun, 547 F.3d 46, 47 (1st Cir. 2008)
(per curiam) ("[T]he Sentencing Commission is without power to
determine statutory minimums.").
A. "Based on a Sentencing Range"
Our first task is to determine what "sentencing range"
Roa-Medina's term of imprisonment was "based on." Roa-Medina
argues that the sentence was based on the guidelines range that the
district court announced at the Rule 35(b) hearing: 63 to 78
months. That view finds some support in the case law. See, e.g.,
United States v. Blackwell, No. 05-66, 2009 U.S. Dist. LEXIS 51497,
at *40-*41 (S.D. Ohio Feb. 13, 2009).
Ultimately, however, Roa-Medina's argument misunderstands
the nature and effect of a substantial assistance departure. The
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three substantial assistance provisions -- USSG § 5K1.1, 18 U.S.C.
§ 3553(e), and Fed. R. Crim. P. 35(b)3 -- do not authorize a
district court to alter the applicable guidelines range. Rather,
they permit the court to deviate from that range based on a
specific factor (the defendant's cooperation) that was not
accounted for in the basic guidelines calculation. Cf. USSG
§ 1B1.1 cmt. n.1(E) ("'Departure' means . . . imposition of a
sentence outside the applicable guideline range or of a sentence
that is otherwise different from the guideline sentence . . . .")
(emphasis added).
All three provisions operate in conjunction with the
Sentencing Guidelines. At the initial sentencing, the district
court must calculate the applicable guidelines range before it may
depart from that range based on the defendant's substantial
assistance. See USSG § 1B1.1. The guidelines automatically
account for statutory limitations at that stage, see United States
v. Ahlers, 305 F.3d 54, 60-61 (1st Cir. 2002), yielding a
"restricted" guidelines range that runs from the greater of the
statutory minimum or the guidelines minimum to the lesser of the
statutory maximum or the guidelines maximum. See, e.g., USSG
3
We limit our discussion of Rule 35(b) to the version that
was in effect when the district court reduced Roa-Medina's
sentence. The rule has since been amended, and the effects of that
amendment are slowly being explored. See, e.g., United States v.
Poland, 562 F.3d 35 (1st Cir. 2009); United States v. Shelby, 584
F.3d 743 (7th Cir. 2009).
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§ 5G1.1 cmt. ("If the applicable guideline range is 51-63 months
and the maximum sentence authorized by statute for the offense of
conviction is 60 months, the guideline range is restricted to 51-60
months . . . .").4 If the court determines that a departure from
the restricted guidelines range is warranted, it takes the lower
end of the range as its "starting point" and departs from that
point as necessary to reflect the defendant's assistance. United
States v. Li, 206 F.3d 78, 89 (1st Cir. 2000); United States v.
Auld, 321 F.3d 861, 867 (9th Cir. 2003).
A post-sentencing reduction under Rule 35(b) works
similarly. Like the provisions applicable at the initial
sentencing, Rule 35(b) uses the original guidelines range as a
frame of reference. See Fed. R. Crim. P. 35(b)(1)(B) (2007)
(permitting reduction only in "accord[ance] with the Sentencing
Commission's guidelines and policy statements"). Where, as here,
the defendant was originally sentenced at the bottom of the
restricted guidelines range (the statutory minimum), the district
court starts from that point and departs as necessary to reflect
4
If the unrestricted guidelines range falls entirely
outside the statutory limits, the restricted guidelines "range" is
a single point. See USSG § 5G1.1(a)-(b); United States v. Li, 206
F.3d 78, 89 (1st Cir. 2000) ("Because [the unrestricted guidelines
range of 15 to 21 months] is obviously lower than the applicable
36-month mandatory minimum, the court properly adjusted the
guideline range to a 'range' of 36 to 36 months before applying any
upward or downward departures.").
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the defendant's assistance. See United States v. Donnell, No. 02-
37, 2008 WL 564647, at *1 n.1 (D. Me. Feb. 29, 2008).
As this brief overview suggests, sentences imposed
pursuant to the substantial assistance provisions remain "based on"
the original restricted guidelines range, which continues to serve
as the anchor point for the ultimate sentence. A number of
circuits have reached that conclusion in the context of § 5K1.1 and
§ 3553(e), holding that the post-departure sentence is "based on"
the pre-departure restricted guidelines range. See, e.g., United
States v. Carter, 595 F.3d 575, 580-81 (5th Cir. 2010) (per
curiam); United States v. Byers, 561 F.3d 825, 830-32 (8th Cir.
2009); United States v. Williams, 549 F.3d 1337, 1340-41 (11th Cir.
2008) (per curiam). We now join the Seventh Circuit in holding
that the same reasoning applies to sentences reduced under Rule
35(b) -- they remain "based on" the restricted guidelines range
that applied at the initial sentencing. See United States v.
Poole, 550 F.3d 676, 678, 680 (7th Cir. 2008); see also Byers, 561
F.3d at 830-32 (holding that the relevant guidelines range for
defendants who benefitted from all three substantial assistance
provisions was the original restricted guidelines range).
It is true that district courts sometimes implement Rule
35(b) reductions by "lowering" the defendant's offense level and
recalculating the guidelines range, as the district court did in
this case. But that method employs a fiction. As a legal matter,
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a district court may consider only the defendant's assistance in
determining the extent of a Rule 35(b) reduction. See Poland, 562
F.3d at 38, 40-41. The "lowered" offense level is nothing more
than a useful way of quantifying the defendant's assistance.
Neither Rule 35(b) nor the Sentencing Guidelines specifies a method
for calculating the extent of a substantial assistance departure,
and the district courts in fact use a variety of methods, including
percentage-based calculations and calculations based on an absolute
number of months. See United States v. Fennell, 592 F.3d 506,
510-11 (4th Cir. 2010); see also Bruce M. Selya & John C. Massaro,
The Illustrative Role of Substantial Assistance Departures in
Combatting Ultra-Uniformity, 35 B.C. L. Rev. 799, 829-30 (1994)
(noting that sentencing courts "may," but "need not," refer to "the
vertical axis of the sentencing grid as the base for making
[substantial assistance] departures").
Other courts have held, and we agree, that a district
court's "reference to offense levels in making its discretionary
decision of how far to depart [does] not amount to the application
of a 'sentencing range' authorized and made applicable by the
Sentencing Guidelines and therefore [is] of no legal significance
to the analysis under § 3582(c)(2)." United States v. Lindsey, 556
F.3d 238, 245-46 (4th Cir. 2009); United States v. Smiley, 356 F.
App'x 302, 305-06 (11th Cir. 2009) (per curiam). Cf. Caraballo,
552 F.3d at 9 (rejecting the argument that the district court's
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"oblique reference to the crack cocaine guideline was enough to
trigger section 3582(c)(2)"). The ultimate sentence remains "based
on" the original restricted guidelines range.
Following that analysis, we conclude that Roa-Medina was
sentenced to a term of imprisonment that was "based on a sentencing
range" of 120 months (the statutory minimum) to 135 months (the
guidelines maximum). As noted by the government at the Rule 35(b)
hearing, the reduced sentence represented a 40% deviation from the
bottom of that range.
B. "That has Subsequently been Lowered by the Sentencing
Commission"
The remaining question is whether Roa-Medina's
sentencing range was "subsequently . . . lowered by the Sentencing
Commission." 18 U.S.C. § 3582(c)(2). In making that inquiry, we
must calculate "the amended guideline range that would have been
applicable to the defendant if the [retroactive amendment] had been
in effect at the time the defendant was sentenced[,] . . .
leav[ing] all other guideline application decisions unaffected."
USSG § 1B1.10(b)(1).
In this case, the crack amendment had no effect on the
bottom of the restricted guidelines range (the statutory minimum),
which was the legal "starting point" for Roa-Medina's substantial
assistance reduction. It also had no effect on the value of Roa-
Medina's cooperation, which was the only factor that could be
considered in determining the "distance" of the reduction. In
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other words, both of the factors critical to the sentencing outcome
remained the same. Roa-Medina's sentencing range has therefore not
been "lowered" within the meaning of § 3582(c)(2). As the policy
statement puts it, the crack amendment did 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)." USSG § 1B1.10
cmt. n.1(A). The district court properly denied Roa-Medina's
§ 3582(c)(2) motion.
AFFIRMED.
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