                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1510
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Delano Eugene Maxwell;                  *
Hassan Majied,                          *
                                        *
             Appellees.                 *
                                   ___________

                             Submitted: October 20, 2009
                                Filed: January 4, 2010
                                 ___________

Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

       The government appeals the district court’s order reducing Delano Maxwell’s
and Hassan Majied’s sentences to 240 months’ imprisonment. We hold that the
retroactive amendments to the cocaine base sentencing guidelines permitted sentence
modifications, but that the district court lacked authority to impose sentences below
the amended guidelines range. See 18 U.S.C. § 3582(c)(2); U.S. Sentencing
Guidelines Manual §§ 1B1.10, 2D1.1, supp. to app. C, amends. 706, 711, 713 (2008).
We thus vacate the sentences and remand for further proceedings consistent with this
opinion.
                                     I. Background

       In 1992, Maxwell and Majied were convicted of conspiracy to distribute and
possession with intent to distribute fifty grams or more of cocaine base, distribution
of cocaine, and distribution of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and
846. Applying the United States Sentencing Guidelines (guidelines), the district court
determined that Maxwell’s total offense level was 44, his criminal history category
was I, and his resultant guidelines sentence was life imprisonment. The district court
found that Majied’s total offense level was 42, his criminal history category was II,
and his guidelines range was thus 360 months’ to life imprisonment.

       The district court departed downward from the then-mandatory guidelines
range, finding that the guidelines 100:1 quantity ratio between cocaine powder and
cocaine base (crack cocaine) disparately impacted African Americans and that the
disparate impact “was not contemplated by Congress nor was it considered by the
Sentencing Commission in developing the guideline ranges for users of crack
cocaine.” United States v. Maxwell, 25 F.3d 1389, 1400 (8th Cir. 1994) (quoting the
district court’s statement of reasons for departure). The district court sentenced
Maxwell and Majied to 240 months’ imprisonment.

       On appeal by the government, we vacated the sentences and remanded for
resentencing, holding that “while [the] racially disparate impact [of the ratio] may be
a serious matter, it is not a matter for the courts, and, therefore, not a basis upon which
a court may rely to impose a sentence outside of the applicable Guidelines range.” Id.
at 1401 (internal citation omitted). At resentencing in 1995, Maxwell and Majied
again moved for downward departures, which the district court reluctantly denied,




                                           -2-
citing its lack of authority to depart. The district court imposed guidelines-range
sentences of 360 months’ imprisonment,1 and Maxwell and Majied appealed.

      We affirmed the sentences, agreeing with the district court’s conclusion that it
had no authority to depart from the guidelines range.

      In the end, nothing has changed since our prior opinion in this case: The
      100:1 ratio’s disparate impact on black defendants, which is without
      question a disturbing fact, is not a basis upon which a court may rely to
      depart downward. . . . It is not for us to decide whether the 100:1 ratio
      is wise or equitable; that is a question for the popularly chosen branches
      of government. They have made their view quite plain.

United States v. Lewis, 90 F.3d 302, 306 (8th Cir. 1996) (internal citations omitted).

       The legal landscape related to sentencing proceedings under 18 U.S.C. § 3553
has changed significantly since our affirmance of Maxwell’s and Majied’s 360-month
sentences. In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court
determined that the application of mandatory sentencing guidelines, under which the
sentencing court rather than the jury found facts that established the sentencing range,
violated the Sixth Amendment. To remedy the constitutional defect, the Court
severed and excised §§ 3553(b)(1) and 3742(e) to render the guidelines effectively
advisory. Id. at 245. As a result, when a district court conducts full sentencing
proceedings—whether in an initial sentencing or in a resentencing after the first
sentence was vacated for error—it is no longer bound by the sentencing range
prescribed by the guidelines. More recently, the Supreme Court has held that district
courts may vary from the crack cocaine guidelines based on a policy disagreement
with the crack-powder sentencing disparity, Kimbrough v. United States, 552 U.S. 85

      1
       The district court granted Maxwell’s motion to reconsider the two-level
obstruction of justice enhancement, which brought Maxwell’s total offense level to
42 and his guidelines range to 360 months’ to life imprisonment.
                                          -3-
(2007), and may replace the guidelines 100:1 quantity ratio with a ratio the courts
deem appropriate, Spears v. United States, 129 S. Ct. 840 (2009) (per curiam).

      The sentencing guidelines related to crack cocaine have also changed.
Amendment 706 revised the drug quantity table set forth at guideline § 2D1.1,
reducing by two levels the base offense level for offenses involving crack cocaine.
The amendment became effective in November 2007, and the Sentencing Commission
subsequently voted to make it retroactive. Amendment 706 was then added to the list
of amendments covered by the policy statement in guideline § 1B1.10, “Reduction in
Term of Imprisonment as a Result of Amended Guideline Range.”

      In March 2008, Maxwell and Majied requested that their sentences be reduced
to time served, based on 18 U.S.C. § 3582(c)(2) and the amendments to the crack
cocaine guidelines. The government opposed any reduction beyond the two-level
reduction authorized by Amendment 706. The district court determined that the
amended guidelines range for both Maxwell and Majied was 292 to 365 months’
imprisonment.2 The district court concluded that the sentencing disparity between
powder and crack cocaine remained unconscionable and sentenced Maxwell and
Majied to 240 months’ imprisonment, the same terms of imprisonment first
pronounced in 1993 and then vacated on appeal.




      2
        The district court’s sentencing orders state that Maxwell’s and Majied’s
modified total offense levels are 34, that their criminal history categories are I, and
that their amended guidelines ranges are 292 to 365 months’ imprisonment. This
appears to be an unintentional error. Both defendants’ base offense levels should have
been reduced from 36 to 34, reducing their total offense levels from 42 to 40. With
a criminal history category of I, Maxwell’s amended guidelines range is 292 to 365
months’ imprisonment. Majied’s criminal history category, however, should have
remained II, resulting in an amended guidelines range of 324 to 405 months’
imprisonment.
                                         -4-
                                   II. Discussion

       Maxwell and Majied contend that the district court had full sentencing authority
and thus acted within its discretion when it sentenced them to a term of imprisonment
below the amended guidelines range. Sentence modification proceedings under 18
U.S.C. § 3852(c)(2), however, do not constitute full resentencings. United States v.
Starks, 551 F.3d 839, 843 (8th Cir.) (citing guideline § 1B1.10(a)(3)), cert. denied,
129 S. Ct. 2746 (2009); see also Dillon v. United States, 572 F.3d 146 (3d Cir.), cert.
granted, 2009 WL 2899562 (Dec. 7, 2009) (presenting the following question:
whether the guidelines “are binding when a district court imposes a new sentence
pursuant to a revised guideline range under 18 U.S.C. § 3582”). Section 3582(c)(2)
and guideline § 1B1.10 limit a district court’s authority to reduce sentences following
the retroactive reduction of a guidelines sentencing range. We have held that those
limitations remain constitutional and enforceable. Starks, 551 F.3d at 843; see also
United States v. Clark, 563 F.3d 722, 724 (8th Cir. 2009) (rejecting the defendant’s
Booker- and Kimbrough-based challenges to the district court’s application of §
3582(c)(2)).

        Section 3582(c)(2) authorizes a sentence reduction only to the extent it “is
consistent with applicable policy statements issued by the Sentencing Commission.”
As noted above, guideline § 1B1.10 is the policy statement applicable to the adjusted
crack cocaine sentencing guidelines. Section 1B1.10(b)(2)(A) provides that in the
case of a defendant who was sentenced under the mandatory sentencing guidelines
and within the guidelines range, the court shall not reduce a defendant’s sentence to
a term of imprisonment below the bottom of the amended guidelines range, except as
provided in § 1B1.10(b)(2)(B). Section 1B1.10(b)(2)(B) provides that “[i]f the
original 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,”
the district court may grant a reduction from the amended guidelines range that is
comparable to the original reduction. See generally United States v. Higgins, 584

                                         -5-
F.3d 770 (8th Cir. 2009) (discussing the district court’s application of §
1B1.10(b)(2)(B)).

       Section 1B1.10(b)(2)(A) applies to Maxwell’s and Majied’s sentence reductions
because their 360-month sentences, imposed after remand, were the first legal
sentences imposed and thus constitute the “original term[s] of imprisonment.” See 18
U.S.C. § 3742(b) (authorizing the government to appeal an otherwise final sentence
if the sentence was imposed in violation of law). In Maxwell, we determined, as a
matter of law, that the racially disparate impact was not a circumstance upon which
the district court could rely to depart downward from the mandatory guidelines range.
25 F.3d at 1401. We vacated the illegal sentences, remanded the case, and thereafter
the district court imposed legal sentences.3 See id. (vacating and remanding
sentences); Lewis, 90 F.3d at 306 (affirming sentences). Those 360-month sentences
were within the mandatory guidelines range, and thus § 1B1.10(b)(2)(A) and
Amendment 706 authorized the district court to reduce Maxwell’s and Majied’s base
offense levels by two levels and sentence them within the amended guidelines range.

       We disagree with Maxwell’s and Majied’s alternative argument that their
original terms of imprisonment were the 240-month sentences pronounced in 1993
and thus § 1B1.10(b)(2)(B) authorized the district court to reinstate those sentences.
Although the 240-month sentences were the first sentences to be pronounced, those
sentences were illegal and vacated, meaning that the sentences were invalidated,
nullified, or made void. See Black’s Law Dictionary 1688 (9th ed. 2009) (definition
of vacate). “A judgment vacated on appeal is of no further force and effect.” Riha v.
Int’l Tel. & Tel. Corp., 533 F.2d 1053, 1054 (8th Cir. 1976) (per curiam); see also


      3
       Booker did not apply retroactively to Maxwell and Majied, whose convictions
and sentences became final before Booker was decided. See United States v. Never
Misses A Shot, 413 F.3d 781, 783-84 (8th Cir. 2005) (per curiam) (holding that
“Booker does not apply to criminal convictions that became final before the rule was
announced and thus does not benefit movants in collateral proceedings”).
                                         -6-
Creighton v. Anderson, 922 F.2d 443, 449 (8th Cir. 1990) (“A vacated opinion has no
further force and effect.”). Accordingly, the vacated sentences could not serve as the
sentences from which the district court could apply the retroactive sentence reduction.

        We recognize that courts often use the term “original sentence” to refer to the
first sentence pronounced, regardless of its disposition on appeal. But the cases cited
by the dissent did not give legal effect to an “original sentence” that was later
vacated.4 Similarly, the crack cocaine sentence reduction cannot be calculated from
an illegal, nullified sentence, even though it was the first sentence pronounced.

       The judgment is vacated, and the case is remanded to the district court for
further proceedings consistent with this opinion.

BYE, Circuit Judge, dissenting.

      I would affirm the district court's order reducing Delano Maxwell's and Hassan
Majied's sentences to 240 months' imprisonment because such reductions are
authorized by section 1B1.10(b)(2)(B) of the Sentencing Guidelines. I therefore
respectfully dissent.

        As noted by the majority, the Guidelines permit a sentence reduction under 18
U.S.C. § 3582(c) – beyond the two-level reduction authorized by Amendment 706 –
if "the original 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."
U.S. Sentencing Guidelines Manual (U.S.S.G.) § 1B1.10(b)(2)(B). When Maxwell
and Majied were first sentenced in July 1993, the district court originally imposed
sentences of 240 months, less than the guideline range applicable to each defendant
at the time (i.e., life imprisonment for Maxwell and 360 months-to-life for Majied).

      4
       The vacated sentence in United States v. Sanders, 452 F.3d 572 (6th Cir. 2006)
was void before the defendant was resentenced to the “original term of
imprisonment.”
                                         -7-
As a consequence, when the two men filed motions for sentence reductions under §
3582(c), the district court was authorized to grant a reduction comparable to the
original reduction. See id. (indicating a "reduction comparably less than the amended
guideline range . . . may be appropriate" when the original term of imprisonment is
below the guideline range applicable at the time of sentencing).

       The majority concludes the 360-month sentences the two men received upon
resentencing in November 1995 constituted their "original" terms of imprisonment,
rather than the 240-month sentences the district court first imposed in July 1993. I
disagree for several reasons. First, the sole rationale provided for this otherwise
unsupported conclusion is flawed. The majority concludes the November 1995
resentencings were the original terms of imprisonment because the original sentences
imposed in July 1993 were subsequently vacated by our court. See United States v.
Maxwell, 25 F.3d 1389, 1401 (8th Cir. 1994) (vacating the original 240-month terms
of imprisonment and remanding for resentencing). The fact that the 240-month
sentences were vacated did not change them into something other than the "original"
terms of imprisonment, or more aptly, nothing at all: it simply meant the original
terms of imprisonment had been vacated. "Original" means "[p]receding all others in
time: FIRST." Webster's New College Dictionary 792 (3d ed. 2008). Whether
subsequently vacated or not, the "original" sentences were still the first sentences
imposed; they necessarily preceded the resentencings. It is axiomatic that there could
not be resentencings without the vacation of the "original" terms of imprisonment.

       Second, the manner in which courts routinely refer to an original sentence, even
when subsequently vacated on appeal, supports my conclusion the "original" terms of
imprisonment were the 240-month sentences imposed by the district court in July
1993, not the 360-month terms imposed upon resentencing in November 1995. For
example, in United States v. Sanders, 452 F.3d 572 (6th Cir. 2006), the defendant was
originally sentenced to thirty-seven months. The sentence was vacated on appeal and
the defendant resentenced to 188 months. The 188-month sentence was also vacated

                                         -8-
on appeal and the defendant resentenced to 180 months. The defendant thereafter
filed a motion pursuant to 28 U.S.C. § 2255, which the district court found
meritorious, thereby sentencing the defendant for a fourth time, imposing the original
term of thirty-seven months. The government appealed. In describing the sequence
of events which occurred, the Sixth Circuit described the thirty-seven month sentence
as the "original term of imprisonment." Id. at 584 ("The court then resentenced
Sanders to the original term of imprisonment of thirty-seven months and ordered him
released from custody[.]") (emphasis added).

       Similarly, in United States v. Singletary, 458 F.3d 72 (2d Cir. 2006), a case
involving an original sentence subsequently reversed on appeal, the court referred to
the vacated sentence as the "original sentence," rather than the sentence the defendant
received upon resentencing. Id. at 77. See also Andrews v. United States, 373 U.S.
334, 336 (1963) (referring to a sentence reversed on appeal as the "original
sentence."); Yates v. United States, 356 U.S. 363, 366 (1958) (same); United States
v. Quintieri, 306 F.3d 1217, 1230 (2d Cir. 2002) (discussing sentences vacated on
appeal and stating "even when a remand is limited, an issue may be raised if it arises
as a result of events that occur after the original sentence."); United States v.
Regalado, 518 F.3d 143, 149 (2d Cir. 2008) ("[T]the court should vacate the original
sentence and resentence the defendant.").

       Our court regularly refers to a sentence reversed on appeal as the "original
sentence," and in doing so distinguishes the "original sentence" from the
"resentenc[ing]." United States v. Collier, 581 F.3d 755, 757-58 (8th Cir. 2009); see
also United States v. Spudich, 510 F.3d 834, 835-36 (8th Cir. 2008) ("[W]e vacated
Spudich's original sentence"); United States v. House, 501 F.3d 928, 930 (8th Cir.
2007) ("When Vallejo's conviction was reversed on appeal, both the prison term and
the supervised release term of his original sentence were set aside."); United States v.
Lalley, 317 F.3d 875, 876 (8th Cir. 2003) ("[W]e reversed Lalley's original sentence");
United States v. Allery, 175 F.3d 610, 615 (8th Cir. 1999) (vacating a sentence and

                                          -9-
remanding for resentencing, stating "[n]one of the other considerations that the trial
court used in arriving at its original sentence may properly be brought to bear in the
resentencing.").

       Indeed, the other two members of this panel have each authored opinions
referring to sentences vacated on appeal as the "original sentence." United States v.
Bueno, 549 F.3d 1176, 1180 (8th Cir. 2008) (authored by Judge Wollman); United
States v. Aguilar, 512 F.3d 485, 487 n.2 (8th Cir. 2008) (authored by Judge Murphy).

       Furthermore, certain rights enjoyed by a criminal defendant (and concomitant
obligations of the district court) apply only to the "original" sentencing proceeding,
not to any subsequent resentencings triggered by a reversed sentence. E.g., United
States v. Jeross, 521 F.3d 562, 585 (6th Cir. 2008) (involving a sentence reversed on
appeal and remanded for resentencing, and holding the defendant's right of allocution
only "applies to the original sentence and not to the subsequent resentencing."
(quoting Pasquarille v. United States, 130 F.3d 1220, 1223 (6th Cir. 1997))) (emphasis
added).

       Third, the majority ignores the context in which "original term of
imprisonment" is used in § 1B1.10. See, e.g., United States v. Archambault, 767 F.2d
402, 404 (8th Cir. 1985) (indicating the meaning of a term must be determined from
the context in which it is used). The manner in which "original term of imprisonment"
is used elsewhere in § 1B1.10 supports my view. One of the guideline's Application
Notes provides:

      The court may consider post-sentencing conduct of the defendant that
      occurred after imposition of the original term of imprisonment in
      determining: (I) Whether a reduction in the defendant's term of
      imprisonment is warranted; and (II) the extent of such reduction, but
      only within the limits described in subsection (b).



                                        -10-
U.S.S.G. § 1B1.10 cmt. n.1(B)(iii) (emphasis added). Let us assume for the sake of
argument that one of the two men here (Maxwell) did not appeal his original sentence
while the other (Majied) did. Thus, only Majied's sentence would have been vacated
on appeal. Under the majority's interpretation of the term "original term of
imprisonment," Maxwell's original sentence would have been imposed in July 1993,
while Majied's original sentence would have been imposed over two years later in
November 1995. Further assume both men were exemplary prisoners entitled to have
their post-sentencing rehabilitative conduct considered as the grounds for a sentence
reduction.

       According to the majority, the district court could consider all of Maxwell's
post-sentencing conduct because it occurred after imposition of his original term of
imprisonment in July 1993, but could not consider any of Majied's exemplary conduct
which occurred between July 1993 and November 1995 because his "original term of
imprisonment" would not have been imposed until November 1995. Defendants
whose sentences were never appealed, or appealed but upheld, would be eligible to
have their entire time of incarceration examined to determine eligibility for a sentence
reduction. On the other hand, defendants whose sentences were appealed and
reversed (even in their favor) would have lengthy periods of incarceration time which
could not be considered as the basis for a sentence reduction, with the ineligible period
determined entirely by happenstance (i.e., the length of time the appeal was pending,
plus the length of time for a district court to schedule a resentencing). This would be
a perverse result, where consideration of post-sentencing rehabilitative conduct would
turn on whether a particular defendant's original term of imprisonment was appealed
by either party, and the length of time it took to resolve the appeal and schedule a
resentencing.

      Section 1B1.10 plainly and unambiguously refers to an "original term of
imprisonment" as the first imposed upon a defendant at the time of original
sentencing, irrespective of whether such a sentence is later vacated on appeal. Even

                                          -11-
assuming, however, there is some support for the majority's interpretation, at best this
renders the term "original term of imprisonment" ambiguous and triggers the rule of
lenity, which requires us to construe the term in favor of the defendants and against
the government. See United States v. Granderson, 511 U.S. 39, 54 (1994) (finding the
phrase "original sentence" ambiguous and applying the rule of lenity in favor of the
defendant); United States v. Rodriguez-Arreola, 313 F.3d 1064, 1067 (8th Cir. 2002)
(indicating the rule of lenity applies to the Sentencing Guidelines).

      The majority's holding is contrary to the meaning of the term "original,"
contrary to the manner in which courts (including ours) routinely refer to an original
term of imprisonment even when vacated on appeal, contrary to the context in which
the phrase "original term of imprisonment" is used in § 1B1.10, and inconsistent with
the application of the rule of lenity.

      I respectfully dissent.
                        ______________________________




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