                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0164p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                      No. 08-5667
          v.
                                                  ,
                                                   >
                                                  -
                        Defendant-Appellant. -
 GARRETT JOHNSON,
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                                                 N
                   Appeal from the United States District Court
               for the Eastern District of Tennessee at Greeneville.
               No. 03-00103-003—J. Ronnie Greer, District Judge.
                                Submitted: April 28, 2009
                             Decided and Filed: May 5, 2009
             Before: SILER, GILMAN, and KETHLEDGE, Circuit Judges.

                                   _________________

                                        COUNSEL
ON BRIEF: Nikki C. Pierce, FEDERAL DEFENDERS SERVICES OF EASTERN
TENNESSEE, INC., Greeneville, Tennessee, for Appellant. Caryn L. Hebets, ASSISTANT
UNITED STATES ATTORNEY, Johnson City, Tennessee, for Appellee.
                                   _________________

                                         OPINION
                                   _________________

        RONALD LEE GILMAN, Circuit Judge. Garrett Johnson pled guilty to the charge
of conspiring to distribute crack cocaine. He faced a 240-month mandatory minimum
sentence, as required by statute, but the government moved the district court to grant a lower
sentence based on Johnson’s substantial assistance. The court granted the government’s
motion and sentenced Johnson to 108 months’ imprisonment.

        Johnson subsequently filed a motion for a further reduction in his sentence based on
the retroactive revisions to the United States Sentencing Guidelines regarding crack-cocaine


                                              1
No. 08-5667          United States v. Johnson                                           Page 2


convictions. The district court denied Johnson’s motion, holding that it lacked jurisdiction
to consider this new ground because the sentence was imposed pursuant to the statutory
mandatory minimum for Johnson’s offense, not the subsequently amended Guidelines. For
the reasons stated below, we AFFIRM the judgment of the district court.

                                    I. BACKGROUND

A.      Factual background

        Johnson pled guilty to and was convicted of conspiring to distribute crack cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The Probation Office
prepared a Presentence Report using the 2003 version of the United States Sentencing
Guidelines. Based on a finding that the conspiracy involved at least 500 grams of crack
cocaine, but not more than 1.5 kilograms, his offense level was set at 36. That number, in
conjunction with Johnson’s Category III criminal history, resulted in a Guidelines range of
235 to 293 months. But Johnson was also subject to a mandatory minimum sentence of 240
months under 21 U.S.C. § 841(b)(1)(A), meaning that his effective Guidelines range was 240
to 293 months of imprisonment.

        Prior to sentencing, the government filed a motion for a downward departure
pursuant to 18 U.S.C. § 3553(e). That section authorizes a district court to impose a
sentence below the statutory minimum based on a defendant’s substantial assistance. At the
October 2004 sentencing hearing, the court granted the three-level departure suggested in
the motion and sentenced Johnson to 108 months’ imprisonment. Johnson did not appeal.

        Several years after Johnson’s sentencing, Amendment 706 to the Sentencing
Guidelines reduced the base offense level for most crack-cocaine offenses by two levels.
This caused Johnson to file a pro se motion in February 2008 that sought an additional
sentence reduction in light of the amended Guidelines. The district court appointed counsel
for Johnson and ordered the parties to file a joint motion regarding the potential applicability
of the retroactive amendment. Johnson and the government agreed that his amended base
offense level was 34, but differed on whether the amendment authorized the court to modify
the sentence.
No. 08-5667         United States v. Johnson                                            Page 3


        The government argued that because Johnson’s sentence was not based on a
Guidelines range lowered by Amendment 706, the court lacked jurisdiction to reduce it any
further. Johnson conceded that the amendment did not lower his Guidelines sentence, which
was set by the statutory mandatory minimum. But he claimed that the amendment did lower
his Guidelines range, and that a sentence reduction was accordingly authorized and
appropriate. Johnson also filed an amended motion for a sentence reduction and sought an
evidentiary hearing, which the government opposed.

        In May 2008, the district court issued an order denying a further reduction of his
sentence. The court explained its reasoning as follows:

        Neither the Guidelines, nor the statute, nor the applicable precedents
        supports the defendant’s position and this Court is constrained to find, upon
        the facts of this case and upon the plain language of § 3582(c), that this
        Court does not have the authority to reduce defendant’s sentence. . . . The
        defendant was subject to the mandatory term of imprisonment provided by
        21 U.S.C. § 841(b)(1)(A) both before and after Amendment 706.
        Accordingly, § 3582(c) does not authorize a reduction in his sentence.
Moreover, the court noted, Johnson’s sentence had been “determined not by reference to a
guideline range but rather to the statutory mandatory minimum sentence.” The court
concluded by clarifying that, even if it had jurisdiction to reduce Johnson’s sentence, it
would not have exercised its discretion to do so. Johnson timely appealed.

                                     II. ANALYSIS

A.      Statutory background

        A district court may modify a defendant’s sentence only as provided by statute.
United States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001) (“The authority of a district court
to resentence a defendant is limited by statute” and is “expressly prohibit[ed] . . . beyond
those exceptions expressly enacted by Congress.”). Congress has provided that a district
court has the discretion to reduce a sentence based upon a change in the Sentencing
Guidelines affecting a defendant’s sentencing range in accordance with the relevant
Guidelines policy statement:

        [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
No. 08-5667         United States v. Johnson                                               Page 4


        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.
18 U.S.C. § 3582(c)(2) (emphasis added).

        In § 1B1.10 of the Guidelines, the Sentencing Commission has identified those
amendments that may be applied retroactively pursuant to the above policy statement and
has also articulated the proper procedures for implementing the amendment in a case already
concluded. On December 11, 2007, the Commission issued a revised version of § 1B1.10,
which emphasizes the limited nature of relief available under 18 U.S.C. § 3582(c). Revised
§ 1B1.10(a), which became effective on March 3, 2008, provides in pertinent part as follows:

        (1)     In General.—In a case in which a defendant is serving a term of
                imprisonment, and the guideline range applicable to that defendant
                has subsequently been lowered as a result of an amendment to the
                Guidelines Manual listed in subsection (c) below, the court may
                reduce the defendant’s term of imprisonment as provided by
                18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any
                such reduction in the defendant’s term of imprisonment shall be
                consistent with this policy statement.
        (2)     Exclusions.—A reduction in the defendant’s term of imprisonment
                is not consistent with this policy statement and therefore is not
                authorized under 18 U.S.C. § 3582(c)(2) if—
                        (A) None of the amendments listed in subsection
                        [§ 1B1.10](c) is applicable to the defendant; or
                        (B) An amendment listed in subsection (c) does not
                        have the effect of lowering the defendant’s
                        applicable guideline range.
U.S.S.G. § 1B1.10(a) (amended Dec. 11, 2007). In addition, § 1B1.10 directs that “the court
shall substitute 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.” U.S.S.G. § 1B1.10 (b)(1).

        The amendment in question in this case is Amendment 706, effective November 1,
2007, which reduced the base offense level for most crack offenses. Amendment 706 was
further amended by the technical and conforming amendments set forth in Amendment 711,
No. 08-5667         United States v. Johnson                                          Page 5


also effective November 1, 2007. Amendment 706 is one of the amendments listed in
§ 1B1.10(c) as having retroactive effect. U.S.S.G. § 1B1.10(c).

B.      Application of Amendment 706 to Johnson

        Johnson argues that the district court erred in concluding that it lacked jurisdiction
to reduce his sentence pursuant to 18 U.S.C. § 3582(e). He reasons that the retroactive
amendment regarding crack cocaine had the effect of lowering his applicable Guidelines
range from 235-293 months to 188-235 months. Although he concedes that he is subject to
the statutory mandatory-minimum term of 240 months, Johnson argues that the district court
never actually applied the mandatory minimum because it imposed a below-minimum, 108-
month sentence in response to the government’s motion pursuant to 18 U.S.C. § 3553(e).
In sum, Johnson contends that, “[b]ecause the guideline range has been reduced and the
sentence imposed was based upon a guideline range that has since been reduced, the district
court should have determined that it had authority to reduce the sentence.”

        Johnson’s argument lacks merit because he was not in fact sentenced based on a
Guidelines range that was subsequently reduced. Rather, his sentence was based on the
mandatory minimum imposed by 21 U.S.C. § 841(b)(1)(A), which remained unchanged by
Guidelines Amendment 706. “Where a statutorily required minimum sentence is greater
than the maximum of the applicable guidelines range, the statutorily required minimum
sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b); accord United States v.
Goff, 6 F.3d 363, 366-67 (6th Cir. 1993) (“As the guidelines themselves recognize, where
a statutory mandatory minimum sentence and the guidelines conflict, the guidelines must
yield, and the statutory minimum sentence prevails.”). Thus, if Johnson were resentenced
today, the amended Guidelines would still require a sentence of 240 months, and the court
would be departing from this same 240-month baseline if again presented with the
government’s substantial-assistance motion.

        “[T]he appropriate starting point for calculating a downward departure under
18 U.S.C. § 3553(e) is the mandatory minimum sentence itself.” United States v. Stewart,
306 F.3d 295, 332 (6th Cir. 2002) (rejecting the claim that, once the government filed a
§ 3553(e) motion, the sentence could be based on the initial Guidelines range rather than the
higher statutory mandatory minimum). This means that the district court properly concluded
No. 08-5667         United States v. Johnson                                          Page 6


that, “[b]ecause [Johnson] was subject to a statutory mandatory minimum term of
240 months, Amendment 706, even if it had been in effect at the time of the defendant’s
sentencing, would not have lowered the applicable guidelines range.”

        Nor did the district court, as Johnson claims, conflate the concept of a Guidelines
range with that of a Guidelines sentence. Where a mandatory minimum sentence exceeds
the otherwise applicable Guidelines range—as it would were Johnson to be resentenced
today—it replaces that Guidelines range. See, e.g., United States v. Mooneyham, 473 F.3d
280, 294 (6th Cir. 2007) (because of a mandatory minimum sentence, the “applicable
guideline range was effectively 120 to 137 months” although it would have otherwise been
110 to 137 months) (emphasis added); United States v. Jones, 523 F.3d 881, 882 (8th Cir.
2008) (“The top of Mr. Jones’s originally calculated guidelines range was less than the
statutory mandatory minimum sentence for the quantity of crack involved in his conviction,
so that his final originally calculated guidelines range was the statutorily required minimum
sentence of 120 months.”) (emphasis added). If we were to accept Johnson’s argument, we
would afford him a “double benefit by first permitting [him] to avoid a higher mandatory
minimum sentence and then granting a departure from an even lower sentencing guidelines
range.” Stewart, 306 F.3d at 332.

        Finally, even assuming for the sake of argument that the district court had discretion
to modify Johnson’s sentence, no such reduction was warranted. A reduction is not
automatic; instead, the district court has discretion within the limits of U.S.S.G. § 1B1.10.
“[T]he 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.” 18 U.S.C. § 3582(c)(2).

        To succeed on this point, Johnson must show that the district court abused its
discretion by denying his motion for a sentence reduction. United States v. Peveler,
359 F.3d 369, 373 (6th Cir. 2004) (noting that this court reviews a district court’s denial of
a motion to reduce sentence under the abuse-of-discretion standard). But the district court
did not abuse its discretion. Its opinion makes clear that it considered and rejected the
factors proffered by Johnson on the ground that they did not warrant any further sentence
reduction, stating that “even if the Court ha[d] such authority, this Court would, after
No. 08-5667         United States v. Johnson                                           Page 7


consideration of the factors set forth in 18 U.S.C. § 3553(a) and public safety considerations,
exercise its discretion and deny the motion for reduction of sentence.” The district court
therefore properly denied Johnson’s motion for a reduction of his sentence.

                                    III. CONCLUSION

        For all of the reasons set forth above, we AFFIRM the judgment of the district court.
