                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0490n.06

                                           No. 12-3924
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                            May 15, 2013
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE
v.                                                       )        NORTHERN DISTRICT OF
                                                         )        OHIO
DWAYNE A. MOODY,                                         )
                                                         )                          OPINION
       Defendant-Appellant.                              )
                                                         )



BEFORE: DAUGHTREY, ROGERS, and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Dwayne A. Moody appeals the district court’s order finding

him ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). He pled guilty to a cocaine-

related offense and was sentenced to 71 months in prison. Unfortunately for Moody, he is ineligible

for a sentence reduction, so we affirm.

                                          I. Background

       In 2008, Moody pled guilty to conspiracy to possess with intent to distribute 123.9 grams of

cocaine powder and 127.3 grams of crack cocaine in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)

(2008). Due to the amount of crack, he was subject to a mandatory minimum sentence of 120

months. See id. § 841(b)(1)(A)(iii). At his sentencing hearing, the district court, after apparently

determining that the appropriate base offense level was 30, applied a 3-level downward adjustment

for acceptance of responsibility and awarded a 3-level downward departure pursuant to the
No. 12-3924
USA v. Moody

government’s substantial assistance motion brought under U.S.S.G. § 5K1.1. The resulting total

offense level was 24, which when combined with Moody’s criminal history category of II yielded

a guideline range of 57 to 71 months. Moody was sentenced to 71 months in prison. Although he

was subject to a 120-month mandatory minimum sentence, the government’s substantial assistance

motion was apparently intended to authorize the court to depart from the minimum.1

       In 2010, Congress enacted the Fair Sentencing Act, which increased the amount of crack

needed to trigger mandatory minimum sentences. See 124 Stat. 2372 (2010). In accordance with

instructions in the Act, the Sentencing Commission passed Amendment 750 to the Sentencing

Guidelines, which reduced the base offense levels for crack cocaine offenses. Amendment 759 made

the changes in Amendment 750 retroactive.

       In 2012, Moody filed a motion requesting a sentence reduction in light of the amended

Guidelines. The judge who sentenced Moody having assumed senior status, Moody’s case was

assigned to a different judge. That judge denied the motion, finding that Moody was ineligible for

a reduction because he was subject to a mandatory minimum sentence. Moody appealed.




       1
        Technically, § 5K1.1 only allows the court to depart from the guideline range; 18 U.S.C.
§ 3553(e) authorizes the court to depart from the mandatory minimum. Melendez v. United States,
518 U.S. 120, 124 (1996). Although the statutory provision was never mentioned at the sentencing
hearing, it appears the government intended to authorize the court to depart from the mandatory
minimum. See id. at 126 n.5 (stating that “an express reference to § 3553(e) is not necessarily
required before a court may depart below the statutory minimum” as long as the government “in
some way indicate[s] its desire or consent that the court depart below the statutory minimum”).

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USA v. Moody

                                            II. Analysis

A. Eligibility for a Reduction

       We review de novo a district court’s conclusion that a defendant is ineligible for a sentence

reduction. United States v. McClain, 691 F.3d 774, 777 (6th Cir. 2012).

       A district court generally cannot modify a sentence of imprisonment once it has been

imposed. See 18 U.S.C. § 3582(c); Dillon v. United States, 130 S. Ct. 2683, 2690 (2010). However,

there is an exception to the general rule “in 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 . . . if such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In short, to determine whether Moody is eligible

for a sentence reduction we must answer two questions: (1) was his sentence “based on” a sentencing

range that has been lowered by Amendment 750; and (2) would a sentence reduction comply with

the applicable policy statements? We answer the first question “yes” but the second “no.”

       1. “based on” inquiry

       To ascertain whether a sentence was “based on” a sentencing range that was subsequently

lowered, we are bound by United States v. Hameed, 614 F.3d 259 (6th Cir. 2010), which requires

us to “look to what the district court actually said and did at the original sentencing” to determine

“whether the original sentence was, in fact, based on such a range.” See id. at 264 (quotations

omitted). Here, the district court exclusively discussed the guideline range, and it never mentioned

the mandatory minimum sentence. Amendment 750 reduced Moody’s guideline range from 57-71



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No. 12-3924
USA v. Moody

months to 46-57 months. Clearly, then, Moody’s sentence was “based on” a sentencing range that

was subsequently lowered.

       2. policy statement inquiry

        But even though Moody’s sentence was “based on” a sentencing range that was subsequently

lowered, a sentence reduction must still comply with the Sentencing Commission’s policy

statements. One applicable policy statement says that a sentence reduction is not allowed if the

relevant amendment “does not have the effect of lowering the defendant’s applicable guideline

range.” See U.S.S.G. § 1B1.10(a)(2)(b) (emphasis added). The Guidelines provide that “[w]here

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.” § 5G1.1(b). We

have repeatedly said that “where a mandatory minimum sentence applies that exceeds the otherwise

applicable guideline range, the mandatory minimum sentence becomes the applicable guideline

range.” United States v. Williams, No. 12-3353, 2013 WL 331579, at *5 (6th Cir. Jan. 30, 2013);

see also McClain, 691 F.3d at 779-80 (“The Sentencing Commission’s policy statements explicitly

provide that the mandatory minimum becomes a defendant’s applicable range.”); United States v.

Johnson, 564 F.3d 419, 423 (6th Cir. 2009) (“Where a mandatory minimum sentence exceeds the

otherwise applicable Guidelines range . . . it replaces that Guidelines range.”); cf. Hameed, 614 F.3d

at 268 (“[T]he guideline range resulting from [the] base offense level was not ‘applicable’ because

it was not the correct point from which the departure should have been measured.”).

       Since the 120-month mandatory minimum sentence was greater than the guideline range, the

mandatory minimum became the “applicable guideline range” for purposes of U.S.S.G.

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No. 12-3924
USA v. Moody

§ 1B1.10(a)(2)(B). The Sentencing Commission, of course, has no power to reduce a mandatory

minimum sentence set by Congress, and Amendment 750 has no effect on the mandatory minimum

for Moody’s crime. Therefore, Moody is ineligible for a sentence reduction under § 3582(c)(2)

because a reduction would be inconsistent with an applicable policy statement.2 Furthermore, the

Fair Sentencing Act does not apply retroactively to reduce the mandatory minimum for Moody’s

crime because he was sentenced before the Act’s effective date. See United States v. Hammond, 712

F.3d 333, 336 (6th Cir. 2013) (per curiam).

       Of course, this analysis likely provides little consolation to Moody, given that the district

court never mentioned the mandatory minimum sentence during his sentencing hearing, and it

certainly must have appeared to him that the mandatory minimum played no role in his sentence.

In fact, the district court made two major mistakes while sentencing Moody. After determining the

guideline range based on Moody’s total offense level, his criminal history category, and his

assistance to the government, the court should have recognized that because the mandatory minimum

was greater than the top of that guideline range, it necessarily became the new guideline range. See



       2
          After briefing was complete, Moody sent us a letter contending that a recent case from a
sister circuit found defendants eligible for a reduction on “the exact same facts” as his case presents.
See United States v. Wren, 706 F.3d 861 (7th Cir. 2013). But Moody has ignored a crucial
distinction between his case and Wren. The original guideline ranges of the defendants in Wren were
greater that the applicable mandatory minimum. See id. at 862. Therefore, in Wren the mandatory
minimum did not become the “applicable guideline range,” and the defendants were eligible for a
sentence reduction. See id. at 864. The Seventh Circuit explicitly recognized that defendants whose
original guideline ranges were lower than the mandatory minimum are not eligible for a reduction.
See id.; see also Williams, 2013 WL 331579 at *6. If Moody’s original guideline range had been
greater than the mandatory minimum, he too might be eligible for a reduction. But it wasn’t, and
he isn’t.

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No. 12-3924
USA v. Moody

U.S.S.G. §§ 1B1.1(a)(8); 5G1.1(b). If appropriate, the court should then have departed downward

from the mandatory minimum under 18 U.S.C. § 3353(e). See United States v. Stewart, 306 F.3d

295, 332 (6th Cir. 2002). When determining the extent of the departure, the court should not have

been influenced by Moody’s acceptance of responsibility but instead should have based the departure

solely upon the value of Moody’s assistance to the government. See United States v. Bullard, 390

F.3d 413, 416 (6th Cir. 2004); see also United State v. Williams, 687 F.3d 283, 286 (6th Cir. 2012).

Because the district court ignored the mandatory minimum and granted a 3-level downward

adjustment for Moody’s acceptance of responsibility, Moody actually benefitted from these errors.

Most importantly, these errors do not change the fact that the mandatory minimum was still legally

the “applicable guideline range,” and Moody is accordingly ineligible for a reduction.

       Moody points out that since the mandatory minimum was never mentioned at his sentencing

hearing, it was not entirely accurate for the district court to say in its order denying his motion for

a sentence reduction that “[Moody’s] guideline range was determined pursuant to 5G1.1(b) of the

U.S.S.G.,” which provides that when a mandatory minimum exceeds the guideline range the

mandatory minimum becomes the guideline sentence. Moody argues that the guidelines are

advisory, the district court chose not to apply § 5G1.1(b), and therefore it cannot be applied now.

For support, he points to the rule that in determining whether a defendant is eligible for a sentence

reduction, the court can only “determine the amended guideline range that would have been

applicable” and “shall leave all other guideline application decisions unaffected.” U.S.S.G.

§ 1B1.10(b)(1). He maintains that it is improper for us now to apply § 5G1.1(b) when it was

apparently not applied during his original sentencing.

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No. 12-3924
USA v. Moody

       But the district court’s failure to invoke § 5G1.1(b) while sentencing Moody is irrelevant.

A mandatory minimum sentence is most assuredly not advisory, even if the guideline provision

directing the court to apply it is. See Dorsey v. United States, 132 S. Ct. 2321, 2327 (2012) (stating

that federal sentencing statutes “trump[] the Guidelines”). Under the statute in effect at the time,

Moody was subject to a mandatory minimum sentence which became his “applicable guideline

range” by operation of law, and no mistake by the district court can alter this reality. Moody has

already benefitted once from the district court’s sentencing errors. To grant him a sentence reduction

now would enable him to benefit twice from those same errors.

B. Factual Errors

       Finally, Moody argues that we should remand this case since in its order denying his motion

for a sentence reduction the district court made several factual misstatements. Both parties recognize

that factual misstatements were made, primarily because Moody made them in his motion and the

government repeated them in its response. But correcting these misstatements would not render

Moody eligible for a sentence reduction, so a remand would be pointless.

                                          III. Conclusion

       Because Moody’s “applicable guideline range” was the mandatory minimum, it was not

reduced by Amendment 750, and the district court was correct to find him ineligible for a sentence

reduction. We therefore AFFIRM the district court’s order.




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