               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0279n.06

                                       Case No. 16-1615

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                May 18, 2017
UNITED STATES OF AMERICA,                             )
                                                                            DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )        ON APPEAL FROM THE
v.                                                    )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE WESTERN
CHARLES CANNON,                                       )        DISTRICT OF MICHIGAN
                                                      )
       Defendant-Appellant.                           )
                                                                         OPINION

BEFORE: BOGGS, MOORE, and McKEAGUE, Circuit Judges.

       BOGGS, Circuit Judge. Charles Cannon is currently serving back-to-back sentences

for a cocaine offense and a firearm offense. After the Sentencing Commission retroactively

lowered his guideline range, he asked for a sentence reduction. Cannon was originally sentenced

to 256 months of imprisonment for the cocaine offense and 72 months of imprisonment for the

firearm offense, for total punishment of 328 months, a sentence that fell near the midpoint of his

original guideline range of 292 to 365 months. The district court granted Cannon’s motion for a

sentence reduction and reduced Cannon’s sentence for the cocaine offense to 235 months of

imprisonment, leaving the consecutive 72-month sentence for the firearm offense in place, for

total punishment of 307 months. Cannon argues that this was error: the amended guideline range

was 235 to 293 months, so, even though the new sentence for the cocaine offense fell at the low

end of the amended range, the total punishment now fell above the high end of the amended
Case No. 16-1615, United States v. Cannon


range by fourteen months, contrary to the district court’s statement in its sentence-reduction

order that “[t]he reduced sentence is within the amended guideline range.”

       Although the district court was certainly free to impose a sentence above the amended

guideline range (and, indeed, Form AO 247, which is the standard-form sentence-reduction order

for a reduced sentence under the amended guidelines, specifically allows the district court to

elect an above-guideline-range sentence), it appears that the district court’s statement that it was

imposing a within-guideline-range sentence is contrary to the actual sentence that it imposed.

       Accordingly, applying abuse-of-discretion review, we reverse and remand.

                                                 I

       The police captured Cannon after he fled from a car containing cocaine and guns.

He stood trial on one cocaine charge and one firearm charge. The jury convicted him of both.

       At sentencing, the district court grouped Cannon’s offenses together to calculate a

guideline range. See USSG §3D1.2(c). It calculated the group’s range to be 292 to 365 months.

Then, the court chose a total punishment from this range, ultimately deciding on 328 months.

       Finally, the court translated this “total punishment” into formal “terms of imprisonment”

for each offense. The Guidelines have a vision for how this should work. See USSG §5G1.2.

The sentencing court should start with the count that carries the highest statutory maximum; it

should impose the desired total punishment for that count (and it should then impose up to the

total punishment on each remaining count, with all the sentences to run concurrently), unless the

highest statutory maximum is lower than the desired total punishment, in which case the court

should impose the statutory maximum on the count that carries that highest statutory maximum

and then impose consecutive sentences on such of the remaining counts as necessary in order to

reach the desired total punishment. See §5G1.2(b), (c).



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Case No. 16-1615, United States v. Cannon


       Cannon’s cocaine offense had a maximum sentence of life, but his firearm offense had a

maximum of 120 months.          Thus, the Guidelines would have had the court give Cannon

328 months on the cocaine offense and up to 120 months (the statutory maximum) on the firearm

offense—to run concurrently—to impose total punishment of 328 months. See id.

       The Guidelines, however, are only advisory. United States v. Booker, 543 U.S. 220, 245

(2005). And the district court wanted to signal “that when a felon has a gun, he deserves the

additional punishment.” So the court divided Cannon’s total punishment between the two

offenses. It assigned 256 months to the cocaine offense and 72 months to the firearm offense.

It then made the sentences consecutive to reach 328 months. We later affirmed Cannon’s

convictions and sentences on direct appeal. See United States v. Cannon, 552 F. App’x 512, 517

(6th Cir. 2014).

       Curiously, of course, the court’s decision to divide the total punishment between the two

offenses and run them consecutively had no discernible impact on Cannon’s sentence at the time

of sentencing, at least not when compared with what the Guidelines would have produced under

the procedure outlined above: serving a 72-month sentence consecutive to a 256-month sentence

is functionally equivalent to serving a 72-month (or 120-month, or even 328-month) sentence

concurrently with a 328-month sentence. It is only now, upon modification, that the district

court’s decision to divide the total punishment into two consecutive sentences has resulted in

potentially greater punishment than Cannon would otherwise have received. But we do not now

sit in review of the district court’s initial curious sentencing decision (not that the district court

erred), so we will set this apparent oddity aside.




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Case No. 16-1615, United States v. Cannon


                                               II

       While Cannon was serving his time, the Sentencing Commission promulgated

Amendment 782 to the Guidelines. This amendment retroactively changed the drug-quantity

table used to calculate guideline ranges for drug offenses. The new table lowered Cannon’s

range from 292 to 365 months to 235 to 293 months, so he filed a pro se motion to reduce his

sentence under 18 U.S.C. § 3582(c)(2).

                                               A

       Undisputedly, the amendment made Cannon eligible for some sentence reduction. Any

reduction, however, had to be “consistent with applicable policy statements issued by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The applicable policy statement limits a

court’s discretion in two ways. USSG §1B1.10.

       First, the policy statement sets out a procedure the court must follow. See §1B1.10(b)(1).

The court must calculate a new guideline range only by substituting the amended guideline

provisions “for the corresponding guideline provisions that were applied when the defendant was

sentenced[.]” Id. The court must “leave all other guideline application decisions unaffected.”

Id. Neither the policy statement nor the Guidelines define what does or does not qualify as a

“guideline application decision.”

       Second, the policy statement sets a sentencing floor for the court. See §1B1.10(b)(2)(A).

The court may only reduce the defendant’s “term of imprisonment” to “the minimum of the

amended guideline range[.]” Id. Even if a court originally sentenced a defendant to a term

below his original range, it still cannot reduce the term to something below the amended range.




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Case No. 16-1615, United States v. Cannon


See id. n. 3.1 An exception to this sentencing floor applies, however, when the original reason

for imposing a sentence below the guideline range was a government motion to reflect the

defendant’s substantial assistance. See §1B1.10(b)(2)(A)-(B). Undisputedly, this exception does

not apply to Cannon. Nor does §1B1.10(b)(2)(A) take into consideration the “total punishment”

imposed when a reduced sentence runs consecutively with additional sentences; instead, it

prevents any “term of imprisonment” from being lowered to a below-guideline-range term—and,

under 18 U.S.C. § 3584, it would appear that each of Cannon’s sentences is a separate “term of

imprisonment.” Thus, USSG §1B1.10(b)(2)(A) would seem to prevent the district court from

lowering the term of imprisonment associated with the cocaine charge to anything lower than

235 months.2 See §1B1.10(b)(2)(A); see also United States v. Smith, 655 F. App’x 376, 382 (6th

Cir. 2016) (“The Guidelines may be advisory, but §1B1.10(b)(2)(A)’s restrictions are not.”).

                                                        B

        Here is the puzzle: at least at first glance, there appears to be no way that the district court

could have granted Cannon’s motion for sentence reduction and recalculated Cannon’s sentence


        1
         For example, if a defendant had an original range of 70 to 87 months; he received a 56-month term of
imprisonment; and then his amended guideline range was 51 to 63 months, a court could still only lower his term of
imprisonment to 51 months. See §1B1.10 n.3.
        2
            This of course raises yet another curiosity: what about the 72-month firearm sentence, which is
necessarily below the low end of the amended guideline range (given that the statutory maximum for the firearm
charge is 120 months)? Presumably, under a strict reading of §1B1.10(b)(2)(A), the district court is permitted to
leave the 72-month sentence in place, but—because it is also a “term of imprisonment” that is below the amended
guideline range—“the court shall not reduce” it any further. Ibid. (emphasis added). Such a reading could make
sense: in a case like Cannon’s, if the district court had originally given 220 months on the cocaine charge and
72 months on the firearm charge, for a total of 292 months, then this reading would imply that no modification
would be available: both the 220 months and the 72 months would be below the amended range (235 to 293
months), and so the total punishment of 292 months (incidentally, within the amended range, unlike the 307 months
in this case) would stand without reduction. An alternate reading of “term of imprisonment” in §1B1.10(b)(2)(A),
however, would be “total punishment,” a reading that is arguably supported by 18 U.S.C. § 3584(c) (“Multiple terms
of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a
single, aggregate term of imprisonment.” (emphasis added)). Under such a reading, so long as the total punishment
did not fall below the amended guideline range, the modified sentence would not violate §1B1.10(b)(2)(A) even if
some of the reduced sentences, on their own, fell below the amended range. For the purpose of this opinion,
because Cannon has not argued otherwise, we assume without deciding that each of Cannon’s sentences is a
separate “term of imprisonment” for the purpose of §1B1.10(b)(2)(A).

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Case No. 16-1615, United States v. Cannon


using the amended guideline range while also following §1B1.10(b)(1)’s admonition to “leave

all other guideline application decisions unaffected.” Let’s say that the district court wanted to

impose a sentence within the new range of 235 to 293 months: how would it do that? If it

wanted to “leave . . . unaffected” its previous “guideline application decision” to divide the total

punishment between two offenses and run the sentences consecutively, then it would have to

reduce the sentence for the cocaine offense to some number of months which, when added to the

72-month firearm sentence, would produce a within-guideline-range total punishment. But there

is no such number: even if the district court wanted to sentence Cannon to total punishment of

293 months (the high end of the amended range), it would have to impose a sentence of, say,

221 months on the cocaine charge and 72 months on the firearm charge. But the 221-month

sentence would be below the low end of the amended range, and that is impermissible under

§1B1.10(b)(2)(A), even though the 256-month sentence originally imposed by the court on the

cocaine offense was itself below the low end of the original guideline range.

       Or, perhaps, the court could decide to divide and stack the sentences some other way,

such as by imposing a 235-month sentence for the cocaine offense and a consecutive 58-month

sentence for the firearm offense, thus reaching the high end of the amended guideline range

while leaving unaffected the initial decision to run the divided sentences consecutively. But that

raises the question whether reducing the 72-month sentence to 58 months would also violate

§1B1.10(b)(2)(A).    And it would not leave entirely unaffected the district court’s original

guideline-application decisions because it would be a recrafting of the court’s division of the

total punishment into separate terms of imprisonment.

       Alternatively, the court could decide, as it apparently did here, that it would reduce the

sentence for the cocaine offense to the low end of the amended range (235 months) and leave the



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Case No. 16-1615, United States v. Cannon


consecutive 72-month sentence intact so as to “leave . . . unaffected” the decision to impose a

consecutive 72-month sentence for the firearm offense while also granting the apparently

greatest possible reduction on the cocaine sentence (without dipping below the low end of the

amended range, that is). The court’s decision to impose the 235-month sentence was guided by a

Sentence Modification Report, which recommended doing exactly that. But the result of that

choice was to impose “total punishment”—to use the term employed by USSG §5G1.2—above

the high end of the amended range, which did not “leave . . . unaffected” the court’s original

decision to impose within-guideline-range total punishment.

       Finally, the court could have chosen not to continue running the 72-month sentence

consecutively but rather to run it concurrently with a reduced sentence on the cocaine offense,

which could conceivably have fallen anywhere within the 235- to 293-month range; but, yet

again, that would not “leave . . . unaffected” the court’s original decision to impose consecutive

sentences.

       The catch—and the solution to this apparent puzzle—is that the court’s original decision

to impose consecutive sentences was not a “guideline application decision.” If anything, it was a

decision to reject the Guidelines. The Guidelines, as spelled out above in Part I, would have

produced two concurrent sentences with the greater of the two sentences equal to the desired

total punishment. Thus, the district court, in reducing Cannon’s sentence, could have stayed true

to the Guidelines and heeded the policy statement by imposing concurrent rather than

consecutive sentences, even though it originally imposed consecutive sentences.

                                                C

       In the proceedings below, the probation office prepared a Sentence Modification Report,

which interpreted the policy statement as allowing the court to reduce Cannon’s cocaine term



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Case No. 16-1615, United States v. Cannon


only to the bottom of the amended guideline range (235 months), and which recommended

“307 months imprisonment, consisting of 235 months on Count 1 and 72 months on Count 2,

consecutive.”   Notably, the report stated that Cannon “was originally sentenced below the

guidelines” (presumably referring to the fact that the 256-month term on the cocaine offense was

below the original guideline range), without expressly acknowledging that the original sentence

imposed within-guideline-range total punishment. The report further stated that “[r]educing

[Cannon’s] sentence as recommended would comply with” Amendment 782.

       Cannon objected to the report.       He asserted that the court could reduce his total

punishment to something inside the amended guideline range. Specifically, he contended that

“the total punishment should be no higher than 264 months, or 192 months on Count One and a

consecutive 72 months on Count Two.” Cannon’s proposed 264-month sentence would fall in

the middle of his amended range of 235 to 293 months, much the way his original 328-month

sentence fell near the midpoint of his original range of 292 to 365 months.         And, while

§1B1.10(b)(2)(A) appears to foreclose the possibility of reducing the cocaine sentence to

192 months in order to reach 264 months when stacked with the firearm sentence, §1B1.10(b)(1)

does not foreclose the possibility of reducing the cocaine sentence to something like 264 months

(or 235 months, or any other term within the amended range) and then running that sentence

concurrently with the firearm sentence in order to achieve a new reduced total punishment within

the new reduced guideline range.

       Of course, the Sentence Modification Report did not contemplate reducing Cannon’s

cocaine sentence to within the amended range of 235 to 293 months and then running it

concurrently with his firearm sentence. Nor did Cannon spell out that option in his response

(although it would certainly be one means of achieving the proposed sentence that Cannon



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Case No. 16-1615, United States v. Cannon


argued for). Instead, the district court adopted the recommendation of the Sentence Modification

Report, imposing total punishment of 307 months while also checking the box on Form AO 247

corresponding to the statement that “[t]he reduced sentence is within the amended guideline

range.”

                                                  D

          We review a district court’s modification of a sentence for abuse of discretion. United

States v. Washington, 584 F.3d 693, 695 (6th Cir. 2009). A district court abuses its discretion if

it “relies on clearly erroneous findings of fact, improperly applies the law, or uses an erroneous

legal standard.” Ibid.

          “A district court may modify a defendant’s sentence only as authorized by statute.”

United States v. Howard, 644 F.3d 455, 457 (6th Cir. 2011). 18 U.S.C. § 3582(c) authorizes

sentence modification when “(1) the defendant ‘has been sentenced to a term of imprisonment

based on a sentencing range that has subsequently been lowered by the Sentencing

Commission . . . ’ and (2) ‘such a reduction is consistent with applicable policy statements issued

by the Sentencing Commission.’” United States v. Pembrook, 609 F.3d 381, 383 (6th Cir. 2010)

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

          Thus, while the district court had discretion to modify Cannon’s sentence according to

Amendment 782, the Guidelines, and applicable policy statements, its discretion was not as

unfettered as that accorded to district courts engaging in sentencing in the first instance.

                                                  E

          What, then, was the district court to do? We make no statement as to the appropriate

punishment—total or otherwise—that the district court should have imposed on Cannon, for that

is the province of the district court.     But because the court provided no reasoning for its



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Case No. 16-1615, United States v. Cannon


simultaneous decisions to impose above-guideline-range total punishment and to state that the

reduced sentence was “within the amended guideline range,” we reverse and remand for further

modification of Cannon’s sentence.

       On remand, the court is free to consider either of the following options. First, it may

decide to impose total punishment within the amended guideline range of 235 to 293 months,

and, if necessary in light of the Guidelines’ prohibition on reducing any “term of imprisonment”

to below the amended guideline range except in certain circumstances not applicable here, it may

impose concurrent rather than consecutive sentences for the two counts in order to do so.

Second, it may impose an above-guideline-range total punishment as it has done, but in choosing

to do so, it should elect the statement that “[t]he reduced sentence is above the amended

guideline range” on Form AO 247, and provide at least some reasoning in support of its decision.

In electing either option, the district court should bear in mind that a sentence reduction under

Amendment 782 is meant to be only a “limited adjustment” to a sentence rather than “a plenary

resentencing proceeding.” Dillon v. United States, 560 U.S. 817, 827 (2010) (emphasizing that

modification is not the same as resentencing).

                                                  III

       The Government argues that the district court’s decision to impose consecutive sentences

cannot now be revisited because it made that decision, which was well within the court’s

discretion, at the time of Cannon’s original sentencing. Appellee’s Br. 14. For support, the

Government relies on language from the Supreme Court and from two out-of-circuit cases.

See Dillon, 560 U.S. 817; United States v. Aguilar-Canche, 835 F.3d 1012, 1017 (9th Cir. 2016);

United States v. Dunn, 631 F.3d 1291, 1293 (D.C. Cir. 2011). But these cases do not address the

more complex question before us now, which is not whether to revisit the district court’s original



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Case No. 16-1615, United States v. Cannon


decision to impose consecutive sentences, but whether to require the district court to cling to that

initial decision, when doing so would seemingly necessarily result in an above-guideline-range

total punishment even though Cannon’s original sentence carried within-guideline-range total

punishment.

       Rather than so requiring, we leave it to the district court to determine whether to impose

concurrent sentences that together carry total punishment within the amended guidelines range,

or to impose consecutive sentences that (in this case, at least) necessarily impose total

punishment above the amended range.

                                                IV

       For the foregoing reasons, we REVERSE and REMAND.




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Case No. 16-1615, United States v. Cannon


       McKEAGUE, Circuit Judge, concurring in the judgment. I concur in the result

because my colleagues believe that the district court misunderstood the scope of its authority.

Absent their concerns, however, I would affirm because Cannon never asked the district court to

make his sentences concurrent. Instead, he asked the court to reduce his cocaine sentence while

continuing to run his firearm sentence consecutively. The court declined to do so. I would see

no abuse of discretion here if the court merely failed to consider an argument that Cannon never

raised. It would tax our system to let litigants complain that the district court failed to act as their

counsel. I don’t read the majority to disagree. But I concur separately because Cannon’s appeal

relied on arguments that he never presented to the district court.




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