                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                     File Name: 12a0268p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 10-3862
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 VEDO MCCLAIN,
                                                N
                  Appeal from the United States District Court
                 for the Northern District of Ohio at Cleveland.
              No. 06-00288-001—James S. Gwin, District Judge.
                                  Argued: January 10, 2012
                           Decided and Filed: August 17, 2012
    Before: MERRITT and MOORE, Circuit Judges; and MAYS, District Judge.*

                                     _________________

                                          COUNSEL
ARGUED: Melissa M. Salinas, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Toledo, Ohio, for Appellant. Chelsea S. Rice, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Melissa M. Salinas, Donna M.
Grill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant.
Chelsea S. Rice, Edward F. Feran, UNITED STATES ATTORNEY’S OFFICE,
Cleveland, Ohio, for Appellee.
    MAYS, D. J., delivered the opinion of the court in which MOORE, J., joined.
MERRITT, J. (pp. 9–12), delivered a separate dissenting opinion.




        *
        The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of
Tennessee, sitting by designation.


                                                1
No. 10-3862        United States v. McClain                                        Page 2


                                 _________________

                                       OPINION
                                 _________________

       MAYS, District Judge. Defendant-Appellant Vedo McClain (“McClain”) has
moved for a reduction of his sentence under 18 U.S.C. § 3582(c)(2). The district court
concluded that McClain was ineligible for relief and denied his motion. For the
following reasons, we AFFIRM.

                                            I.

       On three separate occasions in February and May 2006, a cooperating source
under the supervision of the Cleveland Police Department purchased cocaine base
(“crack”) from McClain. A grand jury indicted him on three counts of cocaine
distribution in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and (b)(1)(B). On August
2, 2006, McClain pled guilty to all counts.

       McClain entered into a Rule 11(c)(1)(B) plea agreement with the understanding
that its recommendations were not binding on the district court. He agreed to be
responsible for at least 150 but not more than 500 grams of crack. That amount
corresponded to a base offense level of 34 under § 2D1.1 of the United States Sentencing
Guidelines (“U.S.S.G.”). At sentencing on October 12, 2006, the district court granted
a three-level reduction for acceptance of responsibility. McClain’s total offense level
was 31. His criminal history category was VI. His guidelines range would have been
188 to 235 months. Because of McClain’s prior felony drug conviction, however, there
was a mandatory minimum sentence of 240 months on Counts 1 and 2 and 120 months
on Count 3. Thus, McClain’s guidelines range became 240 months.

       The United States of America (the “Government”) filed a motion for substantial
assistance under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, which permitted the district
court to impose a sentence below 240 months. The district court granted a two-level
departure, which it applied to McClain’s original total offense level to reach a new total
offense level of 29. With a criminal history category VI, this produced a post-departure
No. 10-3862        United States v. McClain                                       Page 3


guidelines range of 151 to 188 months. The district court imposed a within-guidelines
sentence of 151 months, noting that, “although there’s some things [] to recommend that
[the sentence] should be higher, but I think in this case the 151 months is . . . an
extremely long sentence itself.”

       On November 1, 2007, Amendment 706 to the sentencing guidelines reduced the
base offense level for most crack offenses by two levels. U.S.S.G. Supp. to App. C,
amend. 706 (2011).       On March 3, 2008, Amendment 713 made Amendment
706 retroactive. Id. 713 (“The Commission has determined that Amendment 706 . . .
should be applied retroactively.”). McClain moved for a modification of his sentence
under 18 U.S.C. § 3582(c)(2), relying on Amendments 706 and 713. Eighteen U.S.C.
§ 3582(c)(2) permits district courts to reduce sentences based on guidelines ranges that
have been lowered by the United States Sentencing Commission. The district court
denied McClain’s motion, reasoning that he was ineligible for § 3582 relief because his
sentence was based on the mandatory minimum, not a sentencing range that had since
been lowered. McClain timely appealed.

                                           II.

       We ordinarily review a district court’s denial of a § 3582 motion for abuse of
discretion. See United States v. Moore, 582 F.3d 641, 644 (6th Cir. 2009). “Where, as
here, the district court does not simply decline to use its authority under § 3582” but
concludes “that a defendant is ineligible for a sentence reduction,” the district court’s
conclusion is a question of law that is reviewed de novo. United States v. Johnson,
569 F.3d 619, 623 (6th Cir. 2009); see also United States v. Hameed, 614 F.3d 259, 262
(6th Cir. 2010); United States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010); United States
v. Stiff, 407 F. App’x 896, 898 (6th Cir. 2011) (unpublished opinion).

       Generally, courts do not have the authority to change or modify sentences they
have imposed unless that authority is expressly granted by statute. Curry, 606 F.3d at
326; see also United States v. Pembrook, 609 F.3d 381, 383 (6th Cir. 2010). Federal law
creates an “exception to this general rule when the sentencing judge relied on the
sentencing guidelines and those guidelines later are made more lenient.” Hameed,
No. 10-3862         United States v. McClain                                         Page 4


614 F.3d at 262. When that happens, “a court ‘may’ reduce a prison term ‘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.’” Curry, 606 F.3d at 326-27 (quoting 18 U.S.C. § 3582(c)(2)).

        Amendments 706 and 713 lowered the guidelines ranges for quantities of crack
in U.S.S.G. § 2D1.1. See U.S.S.G. Supp. to App. C, amends. 706, 713. To be
eligible for a sentence reduction under these amendments, McClain must show: (1) that
his 151-month prison sentence was “based on” a sentencing range that has been lowered
by Amendments 706 and 713, and (2) that a reduction in sentence would be “consistent
with applicable policy statements issued by the Sentencing Commission.” Hameed,
614 F.3d at 262.

                                              A.

        When faced with motions under § 3582(c)(2), district courts must engage in a
two-part inquiry. See Hameed, 614 F.3d at 262. First, they must address whether the
defendant’s sentence was “based on” a sentencing range that was subsequently lowered.
Id. Second, they must decide whether a reduction would be “consistent with applicable
statements issued by the Sentencing Commission.” Id. (quoting 18 U.S.C. § 3582(c)(2)).
Textually, § 3582(c)(2) requires this two-part inquiry in each instance where a defendant
seeks a sentence reduction under § 3582(c)(2). See id. at 266 n.3 (rejecting the
proposition that “based on” has different meanings depending on the context in which
motions are brought).

        In this case, the district court stated that:
        McClain is ineligible for a sentence reduction because he was subject to
        a statutory mandatory minimum (240) months greater than the low end
        of the otherwise applicable guidelines range (151-188 months.) (From
        that mandatory minimum, the Court granted a downward departure for
        substantial assistance under U.S.S.G. § 5K1.1.) When a defendant is
        subject to a statutory mandatory minimum sentence above the low end
        of the otherwise applicable guidelines range, he may not receive
        § 3582(c)(2) relief from the crack-cocaine amendment to the guidelines.
No. 10-3862           United States v. McClain                                                Page 5


McClain disputes the district court’s conclusion, contending that his sentence was based
on the advisory guidelines, not the mandatory minimum. He argues that his guidelines
range was 262-327 months, calculated using a base offense level of 34 and a criminal
history category VI, which exceeded the mandatory minimum. Alternatively, he argues
that the district court’s initial calculation of his sentencing range under the crack
guidelines makes him eligible for a reduction under Freeman.

        Whether a sentence is “based on” the mandatory minimum or the advisory
guidelines turns on “‘what the district court actually said and did at the original
sentencing.’”1 Hameed, 614 F.3d at 264 (quoting United States v. Hargrove, 628 F.
Supp. 2d 241, 244 (D. Mass. 2009)). That is a fact-driven, common-sense inquiry about
whether a sentence is “derived exclusively” from a particular sentencing scheme. See
id. at 265. The inquiry need not identify explicit statements that favor one sentencing
scheme over another; it may be “sufficiently clear that a district court used the crack
guidelines to select a final sentence even though it did not say so.” Id. at 264 n.2.
Instead, we evaluate the particular circumstances of each defendant, including the
parties’ conduct, to determine whether a particular sentencing calculation was used. See
id. (“[F]or example, when an attorney argued for an approach and the court acted in
accordance with it.”).

        At sentencing, the district court calculated McClain’s base and total offense
levels from the quantity of crack tied to his offense level under § 2D1.1. (Sent. Tr. at 3.)
The guidelines range produced (188-235 months) was less than the mandatory minimum
of 240 months, meaning that the mandatory minimum became his sentencing range.
Nevertheless, “it cannot be said here that the district judge applied a sentencing range
‘derived exclusively’ from a mandatory minimum.” Hameed, at 264-65 (quoting United
States v. Alexander, 543 F.3d 819, 825 (6th Cir. 2008)). The district court here, like the
district court in Hameed, returned to a post-departure guidelines range calculated under


        1
           That a defendant faces a mandatory minimum has no effect on this two-part inquiry; Hameed
explicitly directs courts to address the basis for a defendant’s sentence and whether that sentence is
consistent with the Sentencing Commission’s policy statements. 614 F.3d at 262. District courts must
address both prongs of the Hameed inquiry.
No. 10-3862           United States v. McClain                                                   Page 6


§ 2D1.1 after granting the Government’s substantial assistance motion. Compare id. at
264, with Sent. Tr. at 13, 16-17. The district court sentenced McClain within this post-
departure range, which supports the conclusion that “the district judge actually relied on
the crack guidelines under § 2D1.1 in fashioning a sentence.” See Hameed, 614 F.3d at
265. If Amendment 706 were applied to McClain and he received an additional two-
level reduction, the resulting guidelines range would be 130 to 162 months.2 He would
be eligible for up to twenty-one fewer months in prison. Therefore, this is not a case in
which “‘Amendment 706 . . . has no effect on the ultimate sentencing range imposed on
[McClain].’” Id. at 265 (quoting United States v. Gillis, 592 F.3d 696, 699 (6th Cir.
2009)).

          Although we conclude that McClain’s sentence was “based on” a guidelines
range that has subsequently been lowered, he is not eligible for a reduced sentence
unless “‘such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.’” Hameed, 614 F.3d at 267 (quoting 18 U.S.C. § 3682(c)(2)).
Under U.S.S.G. § 1B1.10(a)(2)(B), a reduction in sentence under 18 U.S.C. § 3582(c)(2)
is not authorized if it “does not have the effect of lowering the defendant’s applicable
guideline range.” Amendment 706 is listed as “covered” by U.S.S.G. § 1B1.10(a)(2).
If no mandatory minimum had applied to McClain’s sentence, “the applicable guideline
range would have been that provided by the drug-quantity guidelines under § 2D1.1,
which Amendment 706 lowered.” Hameed, 614 F.3d at 267. However, as in Hameed,
the Government argues that the mandatory minimum was McClain’s applicable
guidelines range. Id. Therefore, we must decide whether the mandatory minimum or
the § 2D1.1 crack guidelines range was McClain’s applicable range.

          We have previously held that the Sentencing Commission’s policy statements are
mandatory in the sentence-modification context, “not by dint of the guidelines
themselves but based on the plain text of a federal statute.” Hameed, 614 F.3d at 267
(citing Dillon v. United States, 130 S. Ct. 2683, 2690-92 (2010)). Both parties rely on


          2
           That calculation assumes that all previous motions, reductions, and adjustments granted by the
district court would remain the same.
No. 10-3862          United States v. McClain                                      Page 7


§ 5G1.1(b). That policy statement provides, in relevant part, 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.”
U.S.S.G. § 5G1.1(b). McClain argues that the policy statement does not apply to him
because his sentencing range of 262-327 months, derived using a base offense level of
34, was above the mandatory minimum. The Government argues that McClain’s
guidelines range of 188-235 months was below the mandatory minimum, so that, under
§ 5G1.1(b), the mandatory minimum became McClain’s applicable guidelines range.

          McClain conflates “base offense level” and “total offense level.” His applicable
guidelines range could not have been calculated using his base offense level; a
defendant’s guidelines range is “‘produced under the guidelines’ sentencing table after
a correct determination of the defendant’s total offense level and criminal history
category, but prior to any discretionary departures.’” Pembrook, 609 F.3d at 385
(quoting United States v. Darton, 595 F.3d 1191, 1197 (10th Cir. 2010) (emphasis
added)). After adjustment for acceptance of responsibility, McClain’s total offense level
was 31, and his criminal history category was VI. His corresponding guidelines range
was 188 to 235 months, below the 240-month mandatory minimum. “Where a
mandatory minimum sentence exceeds the otherwise applicable Guidelines range . . . it
replaces the Guidelines range.” Johnson, 564 F.3d at 424; see also 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.”). The district court was correct to
conclude that McClain’s applicable sentencing range was the mandatory minimum, not
the guidelines range subsequently lowered by Amendment 706. See Hameed, 614 F.3d
at 268.

          McClain contends that “a Guideline range may be one of many factors that
determine the sentence imposed.” See Freeman v. United States, 131 S. Ct. 2685, 2693
(2011) (Kennedy, J., plurality). Under his theory, he would be eligible for a sentence
reduction because the district court relied on a guidelines range that had been lowered
No. 10-3862        United States v. McClain                                      Page 8


by Amendment 706, regardless of whether it was his applicable range. The broad
language McClain cites from the plurality opinion in Freeman does not control the
disposition of this case. Freeman addressed only the first statutory requirement under
§ 3582, the “based on” component, as it pertained to certain plea agreements. In Dillon,
the Supreme Court took a “narrow view of proceedings” under § 3582(c)(2) and
concluded that Congress authorized reductions only “‘if such [] reduction[s] [are]
consistent with applicable policy statements issued by the Sentencing Commission’”
130 S. Ct. at 2691 (quoting § 3582(c)(2)). The Sentencing Commission’s policy
statements explicitly provide that the mandatory minimum becomes a defendant’s
applicable range. Amendments 706 and 713 did not lower the mandatory minimum.
McClain is ineligible for a sentence reduction.

                                          III.

       A defendant’s eligibility for a sentence reduction under § 3582(c)(2) depends on
satisfying two conditions. First, the defendant must have been sentenced “based on a
sentencing range that has subsequently been lowered by the Sentencing Commission.”
Hameed, 614 F.3d at 269. Second, the reduction must be “consistent with applicable
policy statements” issued by the Sentencing Commission. Id. McClain satisfies only
the first condition. The district court correctly decided that he was ineligible for a
sentence reduction. We AFFIRM.
No. 10-3862            United States v. McClain                                                     Page 9


                                          _____________

                                            DISSENT
                                          _____________

       MERRITT, Circuit Judge, dissenting. The Hameed case followed throughout the
majority opinion to reach its conclusion is no longer good law. The case, United States
v. Hameed, 614 F.2d 259 (6th Cir. 2010), was decided a year before July 13, 2011, when
the Sentencing Commission issued a new Amendment No. 759 to its Guideline § 1B1.10
describing the method to be used for the reduction of crack cocaine sentences that have
subsequently been lowered by the Commission. Not only has the Commission, by
Amendment, altered the law, but after Hameed the Supreme Court in Freeman v. United
States, 131 S. Ct. 2685 (2011), specifically reversed the law of the Sixth Circuit
concerning the reduction of crack cocaine sentences under 18 U.S.C. § 3582(c)(2). As
a result, the crack cocaine defendant here, McClain, is clearly eligible for a reduction
under § 3582(c)(2). I will discuss the effect of Amendment 759 first and then the
Freeman case.

       For mandatory minimum cases in which the greater, mandatory sentence was
reduced by the sentencing court following the government’s substantial assistance
motion, Amendment 759 added a new provision into § 1B1.10. In subsection (b)(2)(A),
the Commission limits the reduction in crack cases to the “amended guideline range”
provided by the new law.1 In the new subsection (b)(2)(B), the Commission clearly
permits a court to further reduce a crack sentence to the “appropriate” level in mandatory
minimum, substantial assistance cases. The new subsection (b)(2)(B) reads as follows:

       (B)        Exception for Substantial Assistance. — If the term of
                  imprisonment imposed was less than the term of imprisonment
                  provided by the guideline range applicable to the defendant at the
                  time of sentencing pursuant to a government motion to reflect the


       1
           (2) Limitations and Prohibition on Extent of Reduction. —
       (A)        Limitation. — Except as provided in subdivision (B), the court shall not reduce
                  the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this
                  policy statement to a term that is less than the minimum of the amended
                  guideline range determined under subdivision (1) of this subsection.
No. 10-3862             United States v. McClain                                                 Page 10


                    defendant’s substantial assistance to authorities, a reduction
                    comparably less than the amended guideline range determined
                    under subdivision (1) of this subsection may be appropriate.

This new subsection was added after Hameed. For the court to deny the eligibility of a
crack cocaine defendant to receive judicial consideration of a reduction under this
subsection is simply to judicially repeal the Amendment the Commission passed a year
ago.

        In addition to the new language in Subsection (b)(2), Amendment 759 added new
language to an “Application Note” on “Eligibility” for a reduction that requires the
sentencing court to go back to the first section of the guidelines, § 1B1.1(a): “Eligibility
. . . is triggered [by an amendment] . . . that lowers . . . the guideline range that
corresponds to the offense level and criminal history category determined pursuant to
§ 1B1.1(a), which is determined before any consideration of any departure provision
. . . or any variance.2 Section 1B1.1(a) provides for the initial calculation that is always
required at the beginning of calculating any Guideline sentence. In order to determine
the “applicable guideline range” stated under this § 1B1.1(a) formula, we must calculate
the “offense level and criminal history category,” and so we must turn back to the very
first section of the Guidelines and calculate steps 1 through 6. These six steps complete
the calculation of the “offense level and the criminal history.”                        This eligibility
calculation, therefore, occurs before any consideration or calculation of any mandatory
minimum sentence and departure from it. These steps require the calculation of such
sentencing factors as the beginning guideline range, the role of the defendant,
obstruction of justice issues and acceptance of responsibility. Thus the Application Note
does not stand in the way of a reduction but complements § 1B10.1(b)(2)(B).


        2
            The full sentence in the eligibility note now reads as follows:
        (A)         Eligibility. — Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is
                    triggered only by an amendment listed in subsection (c) that lowers the
                    applicable guideline range (i.e., the guideline range that corresponds to the
                    offense level and criminal history category determined pursuant to § 1B1.1(a),
                    which is determined before consideration of any departure provision in the
                    Guidelines Manual or any variance).
No. 10-3862          United States v. McClain                                      Page 11


        The recent case of Freeman v. United States, 131 S. Ct. 2685 (2011), came to a
similar conclusion even before Amendment 759 was adopted. The Court said, “There
is no reason to deny § 3582(c)(2) relief to [crack cocaine] defendants who linger in
prison pursuant to sentences that would not have been imposed but for a since-rejected,
excessive range.” Id. at 2690. Nor is § 3582(c)(2) designed to extend benefits “only”
to “arbitrary subset[s] of defendants.” Id. at 2690, 2695. The Court said that a common
sense interpretation of the words “based on” in § 3582(c)(2) permitted the Court “to
revisit a prior sentence to whatever extent the sentencing range in question was a
relevant part of the analytic framework the judge used to determine the sentence,” Id.
at 2692-93. The Court then went on to say that “there can be no doubt that the
Guidelines sentencing range originally used to establish Freeman’s term of
imprisonment ‘has subsequently been lowered by the Sentencing Commission,’
§ 3582(c)(2), such that the amendment ‘ha[s] the effect of lowering [Freeman’s]
applicable guideline range,’ § 1B1.10(a)(2)(B).” Id. at 2700 (Sotomayor, J., concurring).
Thus, in Freeman, the Supreme Court harmonized the “based on” provision of
§ 3582(c)(2) with the “applicable guideline range” provision of guideline
§ 1B1.10(a)(2)(B).

        Both the Sentencing Commission in Amendment 759 and the Supreme Court in
Freeman are saying essentially the same thing: A sentencing court can revisit the earlier
crack cocaine sentence under § 3582(c)(2) if the sentence was based on, at least in part,
the old crack cocaine guidelines.

        Overriding all of these interpretive considerations and textual analyses is one
major reason that calls for redressing the serious injustice the criminal justice system has
created in crack cocaine cases for the last several years, an injustice caused, as the
Supreme Court noted in Freeman, by excessive crack cocaine sentences under the
guidelines and excessive crack cocaine statutory mandatory minimums. The Sentencing
Commission recognized this injustice when it issued Amendment 759. There is every
reason to give the sentencing courts the opportunity to correct some of these injustices
and reduce some of the massive increases in the still growing federal criminal prison
No. 10-3862       United States v. McClain                                  Page 12


population. It is now up to 220,000, a tenfold increase since 1980. Reducing some of
the excessive sentences would be a step toward a more just system of punishment.
