                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-30-2009

USA v. John Doe
Precedential or Non-Precedential: Precedential

Docket No. 08-3968




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                                 PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            _____________

                No. 08-3968
                No. 08-4028
               _____________

      UNITED STATES OF AMERICA

                      v.

                 JOHN DOE,

                           Appellant in 08-3968
                ____________

      UNITED STATES OF AMERICA

                      v.

                 JANE DOE,

                           Appellant in 08-4028
                ____________

On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
(D.C. Nos. 05-cr-00547-002; 05-cr-00547-003)
          District Judge: Honorable Anita B. Brody
                       ____________

               Argued January 7, 2009
                    ____________
Before: FUENTES, FISHER and ALDISERT, Circuit Judges
               (Filed: April 30, 2009)


Maureen Kearney Rowley
David L. McColgin
Sarah S. Gannett (Argued)
Federal Community Defender Office
For the Eastern District of Pennsylvania
Suite 540 West - Curtis Center
601 Walnut Street
Philadelphia, PA 19106

      Counsel for Appellants

Laurie Magid
Robert A. Zauzmer
Bernadette A. McKeon (Argued)
Joseph Whitehead, Jr.
Office of the United States Attorney
Suite 1250
615 Chesnut Street
Philadelphia, PA 19106

      Counsel for Appellee


                               2
                 OPINION OF THE COURT


ALDISERT, Circuit Judge.

       The Appellants, John and Jane Doe,1 appeal the
Eastern District of Pennsylvania’s denial of their 18 U.S.C. §
3582(c)(2) motions for reduction of sentence. On February 1,
2007, both Appellants pled guilty to conspiracy to distribute,
and distribution of, crack cocaine. The Appellants were
granted significant substantial-assistance departures below
both their statutorily required minimums and below their pre-
amendment Guideline ranges. After the United States
Sentencing Commission passed Amendment 706, which
lowered the U.S.S.G. § 2D1.1 base offense levels for most
quantities of crack cocaine by two levels, the Appellants
moved the District Court to further reduce their sentences.
The District Court denied their motions. On appeal, the
Appellants argue that the District Court erred in denying their
motions because: 1) they were sentenced to a term of
imprisonment that was, at least in part, based on a sentencing
range that has subsequently been lowered; 2) the applicable
policy statement, found at U.S.S.G. § 1B1.10, is in conflict
with the plain text of § 3582(c)(2); 3) the District Court


       1
       The Appellants’ unopposed motion to proceed under
pseudonym was granted on January 7, 2009.
                            3
misconstrued U.S.S.G. § 1B1.10; 4) U.S.S.G. § 1B1.10 is
merely advisory after Booker v. Washington, 543 U.S. 220
(2005); and 5) the District Court failed to weigh the equities
and consider the rule of lenity in its decision. We will affirm.2

                                I.

        John and Jane Doe each pled guilty to one count of
conspiracy to distribute crack cocaine (21 U.S.C. § 846) and
one count of distribution of crack cocaine (21 U.S.C. §
841(a)(1)), and entered into cooperation plea agreements with
the government. John Doe’s U.S.S.G. § 2D1.1 base offense
level for these convictions was 34. He received a two-level
increase for his role in the offense, and a three-level reduction
for acceptance of responsibility, resulting in a total adjusted
offense level of 33. His criminal history was category II.
Accordingly, this produced a Guidelines sentencing range of
151-188 months of imprisonment. John Doe, however, was
also subject to a statutory mandatory minimum sentence of
life in prison because of prior drug convictions. As the
mandatory minimum sentence exceeded the Guidelines range,
the mandatory minimum became the Guidelines sentence,



       2
         The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. This Court has jurisdiction pursuant to 18 U.S.C.
§ 1291. This Court exercises plenary review over a district
court’s interpretation of a provision of law. United States v.
Wood, 526 F.3d 82, 85 (3d Cir. 2008).
                               4
pursuant to U.S.S.G. § 5G1.1.3

       This mandatory minimum Guidelines sentence was not
applied to John Doe, however, because of substantial
assistance he provided to the government. The government
moved for a downward departure from the mandatory
minimum sentence pursuant to 18 U.S.C. § 3553(e) and from
the Guidelines range pursuant to U.S.S.G. § 5K1.1. The
District Court ultimately sentenced John Doe, on August 16,
2007, to 84 months imprisonment, a sentence well below both
the mandatory minimum Guidelines sentence and the
otherwise applicable Guidelines range.

       Jane Doe’s U.S.S.G. § 2D1.1 base offense level for
these convictions was 34. She received a three-level reduction
for acceptance of responsibility, resulting in a total adjusted
offense level of 31. Her criminal history was category II.
Accordingly, this produced a Guidelines sentencing range of
121-151 months of imprisonment. Jane Doe, however, was
also subject to a statutory mandatory minimum sentence of
twenty years, due to a prior drug conviction. As the
mandatory minimum sentence exceeded the Guidelines range,
the mandatory minimum became the Guidelines sentence,
pursuant to U.S.S.G. § 5G1.1.

       3
          “Where 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).
                               5
       This mandatory minimum Guidelines sentence was not
applied to Jane Doe, however, because, like John Doe, she
yielded substantial assistance to the government. The
government moved for a downward departure from the
mandatory minimum sentence pursuant to § 3553(e) and from
the Guidelines range pursuant to U.S.S.G. § 5K1.1. The
District Court ultimately sentenced Jane Doe, on May 17,
2007, to 41 months imprisonment, a sentence well below both
the mandatory minimum Guidelines sentence and the
otherwise applicable Guidelines range.

       On November 1, 2007 – subsequent to the Appellants’
sentencings – the United States Sentencing Commission
passed Amendment 706, which changed U.S.S.G. § 2D1.1 by
lowering the base offense levels for most quantities of crack
cocaine by two levels. See U.S.S.G. Supp. to App. C. amend.
706. On December 11, 2007, the Sentencing Commission
made Amendment 706 retroactive by including it in the list of
retroactive amendments in § 1B1.10(c) of the Guidelines.
U.S.S.G. App. C. amend. 713.

       Subsequently, both Appellants filed motions for
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2).
Section 3582(c)(2) provides that, 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, the
court may reduce the term of imprisonment if such a
reduction is consistent with applicable policy statements
issued by the Sentencing Commission. The District Court
                               6
applied § 3582(c)(2) and found that a sentence reduction was
not consistent with the applicable policy statements issued by
the Sentencing Commission. The District Court therefore
denied the Appellants’ motions on September 15, 2008.

                              II.

       In 18 U.S.C. § 3582(c), Congress mandated that courts
“may not modify a term of imprisonment once it has been
imposed.” Congress did provide exceptions to this general
rule, one of which, § 3582(c)(2), provides,

              [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. 984(o), upon 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).

       As the District Court correctly identified, a defendant
                               7
is eligible for a sentence reduction under § 3582(c)(2) only
when two elements are satisfied: First, the defendant must
have been “sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission;” and second, the sentence reduction
must be “consistent with applicable policy statements issued
by the Sentencing Commission.” If a defendant fails to
satisfy both requirements, a district court lacks jurisdiction to
consider a sentence reduction. We agree with the District
Court that the Appellants fail to satisfy the second
requirement, and we decide this case solely on that ground.

       The Sentencing Commission’s policy statements
regarding § 3582(c)(2) are set forth in U.S.S.G. § 1B1.10. See
U.S.S.G. § 1B1.10 cmt. background. U.S.S.G. § 1B1.10(a)(2)
provides:

       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 (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
                               8
             range.

U.S.S.G. § 1B1.10(a)(2).

       Amendment 706 is listed in subsection (c). Although
Amendment 706 would have lowered John Doe’s initial
sentencing range calculated under U.S.S.G. § 5A (the
sentencing table) from 151-188 months to 121-151 months,
and Jane Doe’s initial sentencing range from 121-152 months
to 97-121 months, the amendment did not lower either of the
Appellants’ mandatory minimum sentences. The District
Court correctly identified the flashpoint of controversy:

      Thus, the critical issue is whether the term
      “applicable guideline range” in §
      1B1.10(a)(2)(B) refers to [the Appellants’]
      initial sentencing range . . . calculated under §
      5A or [the Appellants’] guideline sentence of
      [life imprisonment or twenty years,
      respectively] calculated under § 5G1.1(b).

       As we explain below, the term “applicable guideline
range” in § 1B1.10(a)(3)(B) refers to the Appellants’
Guideline sentences as set by the statutory mandatory
minimum. As the Appellants’ mandatory minimum sentences
were not affected by Amendment 706, the Appellants are
ineligible for a sentence reduction.



                               9
                              III.

       The Appellants advance six arguments on appeal,
which we consider seriatim. First, the Appellants argue that
their downward departures for substantial assistance to the
government were, at least in part, “based on” the now-
amended crack cocaine guidelines.

       As discussed above, the District Court held, and we
agree, that deciding this case solely on the second element of
§ 3582(c)(2) is appropriate and we therefore decline to
address the Appellants’ “based on” argument.

                              IV.

        Second, the Appellants argue that by requiring an
amendment to “have the effect of lowering a defendant’s
applicable guideline range,” the policy statement of U.S.S.G.
§ 1B1.10(a)(2) implicitly redefines the § 3582(c)(2) term
“based on” and that the District Court’s interpretation of §
1B1.10(a)(2) assumes that a sentence may be “based on” only
one thing, in this case the mandatory minimum. The
Appellants contend that this narrow interpretation of the
policy statement conflicts with the broader terms and
congressional intent of § 3582(c)(2) and therefore must be
rejected. See Stinson v. United States, 508 U.S. 36, 45 (1993)
(holding that the Sentencing Guidelines commentary is
analogous to an agency’s interpretation of its own legislative
rule, and therefore is “authoritative unless it violates the
                                10
Constitution or a federal statute”).

        Specifically, the Appellants argue that a statute must be
read with its ordinary meaning in mind. See United States v.
Geiser, 527 F.3d 288, 294 (3d Cir. 2008) (“When determining
a statute’s plain meaning, our starting point is ‘the ordinary
meaning of the words used.’”). As the word “basis” has
multiple meanings, including “a supporting layer or part,” the
Appellants argue that § 3582(c)(2) does not require that the
subsequently lowered sentencing range be the sole or even the
primary basis for the sentence.

        Although there is often no one basis for a criminal
sentence, the Appellants misread the District Court’s opinion.
The plain language of § 3582(c)(2) requires that a sentence
reduction be “consistent with applicable policy statements
issued by the Sentencing Commission.” § 3582(c)(2). The
plain language of the statute, therefore, specifically
incorporates the Commission’s policy statements, including
the policy statement requiring that the amendment have the
effect of lowering the defendants’s applicable Guideline
range. U.S.S.G. § 1B1.10(a)(2). Additionally, 28 U.S.C. §
994(u) provides that “[i]f the Commission reduces the term of
imprisonment recommended in the guidelines applicable to a
particular offense or category of offenses, it shall specify in
what circumstances and by what amount the sentences of
prisoners serving terms of imprisonment may be reduced.” §
994(u). See also Braxton v. United States, 500 U.S. 344, 348
(1991) (citing § 994(u) and holding that “Congress has
                                11
granted the Commission the unusual explicit power to decide
whether and to what extent its amendments reducing
sentences will be given retroactive effect). Under the express
statutory language of § 3582(c)(2) and § 994(u), the
Commission’s policy statements implementing retroactive
sentence reduction are binding.

        Not only did Congress intend to incorporate the
Commission’s policy statements into § 3582(c)(2), but the
policy statement and § 3582(c)(2) are complementary. The
first prong of § 3582(c)(2) requires that a defendant have been
sentenced based on a sentencing range that has subsequently
been lowered. The policy statement requires that the
amendment must have actually had the effect of lowering the
Guideline range. Although the policy statement is narrower, it
certainly does not run contrary to § 3582(c)(2).

                                  V.

       Third, the Appellants argue that term “applicable
guideline range” in U.S.S.G. § 1B1.10(a)(2) refers to the
appellants’ initial Guideline ranges, which were subsequently
lowered by Amendment 706, and not their mandatory
minimum sentences, which were not affected by the
amendment. We disagree. Both the Guideline language and
Third Circuit precedent require otherwise.

        Both the language and structure of the Guidelines lead
to the conclusion that “applicable guideline range” in §
                               12
1B1.10(a)(2)(B) refers to the Appellants’ Guideline sentence,
calculated under § 5G1.1(b). First, U.S.S.G. § 1B1.1, the
Commission’s general instruction on how to apply the
Guidelines, specifies that applying a mandatory sentence
pursuant to § 5G1.1(b) is the last step in determining the
Appellants’ applicable Guideline sentence. The Sentencing
Commission directs courts to apply the Guideline provisions
in a specific order. First, a court determines the Guideline
range. U.S.S.G. § 1B1.1(g). Then, a court calculates the
Guideline sentence under chapter five of the Guidelines.
U.S.S.G. § 1B1.1(h). This includes the calculation of the
statutory mandatory minimums for both the Appellants under
§ 5G1.1(b). Therefore, as the District Court held, the
calculation of the statutory mandatory minimum under §
5G1.1(b), not that of the initial Guideline range under § 5A,
was the final step in determining the Appellants’ applicable
Guideline ranges. Moreover, the language of § 5G1.1(b) itself
requires this result. It provides “[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).

       In addition to taking guidance from the Guideline
language, we addressed this issue in United States v. Cordero.
In Cordero, the defendant pled guilty to various drug-related
offenses. 313 F.3d 161, 162 (3d Cir. 2002). The applicable
Guideline range for the defendant was 63-78 months, but the
defendant was subject to a mandatory minimum of 120
                               13
months. After granting the government’s motion for a
downward departure pursuant to U.S.S.G. § 5K1.1 and 18
U.S.C. § 3553(e), the district court sentenced the defendant to
86 months imprisonment. The district court used the 120
month mandatory minimum, rather than the otherwise
applicable Guideline range, as the starting point for granting
the downward departure. The defendant appealed, arguing
that the district court should have applied the departure to the
63-78 month Guideline range, rather than the 120 month
mandatory minimum.

         The Cordero court held that in such a situation the
mandatory period of incarceration is not waived, but rather
“subsumes and displaces the otherwise applicable guideline
range and thus becomes the starting point for any departure or
enhancement that the sentencing court may apply in
calculating the appropriate sentence under the guidelines.”
Cordero, 313 F.3d at 166. Although Cordero addresses the
appropriate starting point for a downward departure rather
than the interpretation of § 3582(c)(2), its reasoning is
instructive. The rationale of Cordero requires that the term
“applicable guideline range” in § 1B1.10(a)(2) refer to the
Appellants’ Guideline sentences as calculated under §
5G1.1(b) because that sentence subsumed and replaced their
initial sentencing ranges calculated under § 5A. Although the
Appellants’ initial Guideline ranges were lowered by
Amendment 706, their initial ranges are no longer applicable
because the Appellants were subject to a mandatory
minimum. The initial ranges have been subsumed.
                                14
Accordingly, Amendment 706 does not have the effect of
lowering the Appellants’ applicable Guideline ranges because
the mandatory minimums were unaffected by Amendment
706.

      The Guidelines’ Application Notes to § 1B1.10 also
support this reasoning:

             [A] reduction in the defendant’s term of
      imprisonment is not authorized under 18 U.S.C.
      § 3582(c)(2) and is not consistent with this
      policy statement if . . . an amendment listed in
      subsection (c) is applicable to the defendant but
      the amendment does not have the effect of
      lowering the defendant’s applicable guideline
      range because of the operation of another
      guideline or statutory provision (e.g., a
      statutory mandatory minimum term of
      imprisonment).

U.S.S.G. § 1B1.10 cmt. 1(A) (emphasis added). See also
United States v. Poole, 550 F.3d 676, 679 (7th Cir. 2008)
(“The Application Note confirms that Amendment 706 does
not have the effect of lowering [the defendant’s] guideline
range because the range applicable to her by operation of law
was the statutory minimum term.”); United States v. Williams,
551 F.3d 182, 186 (2d Cir. 2009) (“We are bound by the
language of [U.S.S.G. § 1B1.10, application note 1] because
Congress has made it clear that a court may reduce the terms
                              15
of imprisonment under § 3582(c) only if doing so is
‘consistent with applicable policy statements issued by the
Sentencing Commission.’”); United States v. Johnson, 517
F.3d 1020, 1024 (8th Cir. 2008) (same).

       In essence, the Appellants’ argument turns on the
relationship between “applicable guideline range” and
“guideline sentence.” U.S.S.G. § 5G1.1(b) requires that a
mandatory minimum greater than the applicable Guideline
range shall be the Guideline sentence and § 1B1.10(a)(2)(B)
excludes a reduction if an amendment does not have the effect
of lowering a defendant’s applicable guideline range. The
Appellants argue that the term “applicable guideline range”
cannot refer to the Guideline sentence because the Guidelines
create a distinction between the terms. The simplicity of this
argument is appealing, but nevertheless it is dispelled by the
clear import of the § 1B1.1 order for sentence determination,
the language of § 5G1.1(b), the commentary to § 1B1.10 and
our holding in Cordero.

       The key term is “applicable” Guideline range, rather
than “initial” Guideline range. Because the Appellants’
mandatory minimum sentences under § 5G1.1(b) subsumed
and displaced their initial Guideline ranges, the applicable
Guideline range for purposes of § 1B1.10(a)(2)(B) must be
the Appellants’ mandatory minimum sentences, which were
not affected by Amendment 706. See also United States v.
Moore, 541 F.3d 1323, 1330 (11th Cir. 2008) (holding that a
defendant is not eligible for resentencing under § 3582(c)(2)
                                16
where “a retroactively applicable guideline amendment
reduces a defendant’s base offense level, but does not alter the
sentencing range upon which his or her sentence was based”).

                              VI.

        Fourth, the Appellants argue that the District Court
erred in treating the Sentencing Commission’s policy
statements as binding after United States v. Booker. In
Booker, the Supreme Court re-affirmed that the Sixth
Amendment is violated by the imposition of an enhanced
sentence under the United States Sentencing Guidelines based
on the sentencing judge’s determination of a fact (other than a
prior conviction) that was not found by the jury or admitted by
the defendant. 543 U.S. at 229, 244. The Court concluded that
this constitutional holding was incompatible with the
mandatory nature of the Sentencing Guidelines and remedied
the defect by severing the statutory provisions that made the
Guideline range mandatory. Id. at 245; see Gall v. United
States, 128 S. Ct. 586, 594 (2007).

        Nowhere in Booker did the Supreme Court mention §
3582(c)(2). Because § 3582(c)(2) proceedings may only
reduce a defendant’s sentence and not increase it, the
constitutional holding in Booker does not apply to §
3582(c)(2). See Booker, 543 U.S. at 244. Additionally, the
remedial holding in Booker invalidated only 18 U.S.C. §
3553(b)(1), which made the Sentencing Guidelines mandatory
for full sentencings, and § 3742(e), which directed appellate
                               17
courts to apply a de novo standard of review to departures
from the Guidelines. Therefore, Booker “applies to full
sentencing hearings – whether in an initial sentencing or in a
resentencing where the original sentence is vacated for error,”
but not to sentence modification proceedings under §
3582(c)(2). United States v. Dunphy, 551 F.3d 247, 253 (4th
Cir. 2009); see also United States v. McBride, 283 F.3d 612,
615 (3d Cir. 2002) (citing United States v. Faulks, 201 F.3d
208, 210 (3d Cir. 2000)) (distinguishing a “full resentencing”
from a reduction of sentence under § 3582(c)(2)). Not only
are sentence modification proceedings sanctioned under a
different section of the statute than those at issue in Booker,
but the Booker court held that “[w]ith these two sections
excised (and statutory cross-references to the two sections
consequently invalidated), the remainder of the Act satisfies
the Court’s constitutional requirements.” Booker, 543 U.S. at
259. “Section 3582(c)(2) contains no cross-reference to §
3553(b) and therefore was not affected by Booker. Nor is
there anything else in Booker that directly addresses § 3582(c)
proceedings.” Dunphy, 551 F.3d at 253; see also United
States v. Rhodes, 549 F.3d 833, 839-840 (10th Cir. 2008)
(holding that Booker’s remedial holding does not operate on §
3582(c)(2) and that Sentencing Commission Policy
Statements are binding on district courts pursuant to §
3582(c)(2)) .

       In addition, this Court has previously rejected the
notion that Booker renders the Guidelines advisory for
purposes of § 3582(c)(2). In United States v. Wise, the
                               18
defendants were convicted and sentenced for a crack offense
before Amendment 706 became retroactive. 515 F.3d at 221.
U.S.S.G. § 1B1.10 provides that a reduction under §
3582(c)(2) is not authorized unless the amendment is
currently retroactive. The defendants in Wise argued that
because the Guidelines were no longer mandatory, they need
not wait for Amendment 706’s retroactivity to apply to seek
relief under § 3582(c)(2). This Court said,

      That fundamentally misunderstands the limits of
      Booker. Nothing in that decision purported to
      obviate the congressional directive on whether a
      sentence could be reduced based on subsequent
      changes in the Guidelines. As we have stated
      before, ‘[t]he language of the applicable
      sections could not be clearer: the statute directs
      the Court to the policy statement, and the policy
      statement provides that an amendment not listed
      in subsection (c) may not be applied
      retroactively pursuant to 18 U.S.C. §
      3582(c)(2).’

Id. at 221 n.11 (citing United States v. Thompson, 70 F.3d
279, 281 (3d Cir. 1995)).

       Although Wise considered the mandatory nature of the
Guidelines in a slightly different context, its reasoning is
entirely applicable here. Nothing in Booker purported to

                             19
obviate the congressional directive in § 3582(c)(2) that a
sentence reduction pursuant to that section be consistent with
Sentencing Commission policy statements. The language of §
3582(c)(2) could not be clearer: the statute predicates
authority to reduce a defendant’s sentence on consistence with
the policy statement, and the policy statement provides that a
reduction is not consistent if the amendment does not have the
effect of lowering the defendant’s applicable Guideline range.
“The Guidelines are no longer mandatory, but that does not
render optional” statutory directives. Id. at 220.

        Admittedly, the Ninth Circuit, in United States v.
Hicks, held that Booker abolished the mandatory application
of the Sentencing Guidelines in all contexts. 472 F.3d 1167,
1169 (9th Cir. 2007). We, however, associate ourselves with
the reasoning of the Tenth, Eighth, and Fourth Circuits in
rejecting Hicks.

      “The problem with the Hicks decision, in our
      view, is that it failed to consider that . . .
      sentence modification proceedings have a
      different statutory basis than original sentencing
      proceedings. As a result, the Ninth Circuit
      erroneously concluded that the remedial portion
      of the Booker decision, which rendered the
      guidelines effectively advisory for purposes of
      original sentencing proceedings, applied to §
      3582(c)(2) proceedings as well.”

                              20
Rhodes, 549 F.3d at 841. See also United States v. Starks, 551
F.3d 839, 841-842 (8th Cir. 2009) (disagreeing with Hicks
and concurring with Rhodes that sentence modification
proceedings have a different statutory basis than original
sentencing proceedings); Dunphy, 551 F.3d at 254 (“We find
the Hicks analysis to be flawed because it fails to consider
two marked characteristics of a § 3582(c)(2) proceeding . . . :
(1) this proceeding allows only for downward adjustment and
(2) this proceeding is not a full resentencing hearing.”).

      Because U.S.S.G. § 1B1.10 is binding on the District
Court pursuant to § 3582(c)(2), the District Court correctly
concluded that it lacked the authority to further reduce the
Appellants’ sentences.

                             VII.

        Fifth, the Appellants argue that the District Court
opinion compels patently absurd and unfair results.
Specifically, the Appellants argue that: 1) defendants subject
to a mandatory minimum, but with higher offense levels or
criminal levels that boost their applicable Guideline range
above the mandatory minimum, would be eligible for a §
3582(c)(2) reduction, while an offender with a lower criminal
history level or lower offense level, whose Guideline range is
less than the mandatory minimum, would not be eligible for
relief; 2) defendants who plead guilty and cooperate with the
government will not be entitled to the benefit of the amended

                              21
Guideline range; and 3) substantial assistance departures
reward assistance, but do not address the crack/powder
cocaine disparity and therefore fail to remedy that injustice.
We find the Appellants’ arguments unpersuasive because they
ignore Cordero and the clear statutory directive of §
3582(c)(2).

                             VIII.

        Finally, the Appellants argue that the District Court
erred in denying their motions for sentence modification by
failing to apply the rule of lenity. In interpreting an
ambiguous criminal statute, the court should resolve the
ambiguity in the defendant’s favor. See United States v.
Introcaso, 506 F.3d 260, 261 (3d Cir. 2007). The rule of
lenity applies in “those situations in which a reasonable doubt
persists about a statute’s intended scope even after resort to
‘the language and structure, legislative history, and motivating
policies’ of the statute.” United States v. R.L.C., 503 U.S.
291, 305-306 (1992) (citations omitted). The rule is not
properly invoked simply because a statute requires
consideration and interpretation to confirm its meaning.
Muscarello v. United States, 524 U.S. 125, 138 (1998). It
applies only if there is such “grievous ambiguity or
uncertainty” in a statute that, “after seizing everything from
which aid can be derived, [the Court] can make no more than
a guess as to what Congress intended.” Id. at 139 (internal
quotation marks, citations and ellipsis omitted). See also

                              22
Steele v. Blackman, 236 F.3d 130, 133 (3d Cir. 2001)
(“Where the language of a statute is clear . . . the text of the
statute is the end of the matter.”).

       In this case, the phrases “based on” and “the effect of
lowering the defendant’s applicable guideline range” need to
be interpreted, but consideration of the language structure,
subject matter, context and history of § 3582(c)(2) and
U.S.S.G. § 1B1.10(a)(2) establishes that they do not contain
such an ambiguity that the Court can make no more than a
guess as to what Congress intended.

                               IX.

       In providing that sentence reductions must be
consistent with applicable Sentencing Commission policy
statements, § 3582(c)(2) creates a jurisdictional bar to
sentence modification when a retroactive amendment does not
have the effect of lowering the Guideline sentence. As
Amendment 706 did not have the effect of lowering the
Appellants’ mandatory minimum sentences under § 5G1.1(b),
the Appellants fail to satisfy the second element of §
3582(c)(2) and are therefore ineligible for a sentencing
reduction under that section. The decision of the District
Court will be affirmed.




                                23
Fuentes, Circuit Judge, concurring:
       I concur in Judge Aldisert’s well-crafted and thorough
opinion. However, I write separately to note that our
interpretation of U.S.S.G. § 1B1.10 implicitly rests on the
assumption that there can be only one guideline range applicable
to a defendant. For the reasons that follow, I am not sure that
assumption is correct.
       The key question in interpreting § 1B1.10(a)(2)(B) is
what “the defendant’s applicable guideline range” is where a
defendant, subject to a statutory mandatory minimum, receives
a downward departure below that minimum based on his or her
substantial assistance to the government. The term “applicable”
is an expansive one: the plain meaning of “to apply” is “to put
to use” or “to bring into action.” Merriam Webster’s Collegiate
Dictionary 57 (10th ed. 1996). There is no dispute that the
District Court did indicate that it was using the Does’ § 5A
Guidelines ranges in deciding the extent of their substantial
assistance departures. Moreover, that approach was permissible
under our precedent, which allows a district court to consider the
seriousness of a defendant’s offense—often reflected in the §
5A Guidelines range—in determining the extent of a substantial
assistance departure. See United States v. Casiano, 113 F.3d
420, 431 (3d Cir. 1997).1


       1
        We are alone in this approach; all other circuits to have
addressed the issue have held that the maximum extent of a
substantial assistance departure may be based only on the
defendant’s substantial assistance. See United States v. Desselle,
450 F.3d 179, 182 & n.1 (5th Cir. 2006) (and cases cited

                               -1-
        Therefore, the plain meaning of § 1B1.10 would suggest
that John and Jane Doe are eligible for resentencing because
their original Guidelines ranges were applied in calculating their
original sentences and those ranges were subsequently lowered
by the crack cocaine amendment. Such a result makes sense
since the District Court might indeed have granted a greater
departure had it had the benefit of the modified Guidelines
ranges at the time of the original sentencing.2 Cf. United States



therein) (holding that the magnitude of a substantial assistance
departure may reflect only “assistance-related concerns”).
Accordingly, other circuits have held defendants like the Does
to be ineligible for resentencing because their original
Guidelines ranges cannot be applied in determining the size of
a substantial assistance departure. See, e.g., United States v.
Williams, 551 F.3d 182 (2d Cir. 2009) (refusing to allow the
resentencing of a defendant under § 1B1.10 where the defendant
had received a substantial assistance departure from a mandatory
minimum sentence). However, that divergence in the application
of § 1B1.10 is simply the inevitable result of a difference in our
sentencing doctrine. See United States v. McGee, 553 F.3d 225,
228 n.2 (2d Cir. 2009) (acknowledging that the holding in
Williams was predicated on the Second Circuit’s rule that the
maximum extent of a substantial assistance departure may not
take into account anything besides the defendant’s substantial
assistance to the government).
       2
       The applicability of a sentencing range other than the
mandatory minimum is even more noticeable in the not
uncommon circumstance where a district court specifically

                               -2-
v. McGee, 553 F.3d 225, 228 (2d Cir. 2009) (“Since, from our
reading of the sentencing transcript, the district court sentenced
[the defendant] based on the crack cocaine guidelines and would
likely have considered a different sentence from the one
imposed if the applicable crack guidelines had so provided, we
think that [reading § 1B1.10 to bar resentencing] would lend
itself to excessive formalism.”).
        Judge Aldisert, by contrast, reasons that the original
Guidelines range could not have been the applicable guideline
range in this case because a mandatory minimum “subsumes and
displaces the otherwise applicable guideline range” initially
calculated under U.S.S.G. § 5A. United States v. Cordero, 313
F.3d 161, 166 (3d Cir. 2002); see also U.S.S.G. § 5G1.1(b).
However, Cordero, U.S.S.G. § 1B1.1, and § 5G1.1(b), the
authorities relied upon by the majority, describe the sentencing
procedure before the consideration of a substantial assistance
departure motion. U.S.S.G. § 1B1.1 and § 5G1.1(b) direct a
sentencing court to apply a mandatory minimum sentence rather
than the § 5A Guidelines range if the former is greater. Yet that
is not the final step of a sentencing where, as here, the District
Court has brought the initial Guidelines range back into the
picture in determining the extent of a downward departure from
that mandatory minimum.3 Similarly, Cordero stated that a


departs by a certain number of offense levels.
       3
          Notably, § 5G1.1(b) actually refers to the initial
sentence calculated under § 5A as “the applicable guideline
range.” While this by no means indicates that the initial
Guidelines range remains “applicable” if a sentencing judge

                               -3-
mandatory minimum sentence “subsumes and displaces the
otherwise applicable guideline range” when § 5G1.1(b) is
applied “and thus becomes the starting point for any departure
or enhancement that the sentencing court may apply in
calculating the appropriate sentence under the guidelines.” 313
F.3d at 166 (emphasis added). While the mandatory minimum
is therefore the “starting point” for a substantial assistance
departure, Cordero says nothing as to whether the initial
Guidelines range may once again become applicable in the
process of determining the extent of a substantial assistance
departure.
       Application Note 1(A) to § 1B1.10 is likewise irrelevant
here. Although it offers the example of “a statutory mandatory
minimum term of imprisonment” as a provision that might
operate to keep an amendment from “hav[ing] the effect of
lowering the defendant’s applicable guideline range,” it does not
speak to the case where the application of a statutory mandatory
minimum is followed by a substantial assistance departure.
See United States v. Sash, 396 F.3d 515, 523 (2d Cir. 2005)


applies a mandatory minimum and stops there, it does suggest
that “applicable guideline range” is meant to be descriptive of
the reality of the sentencing process rather than a formal term
referring to the range that results after the application of §
1B1.1(h). The “applicable guideline range” may evolve as the
sentencing proceeds: prior to the steps described in § 1B1.1(h)
it is the § 5A range, after § 1B1.1(h) is followed it may be a
mandatory minimum, but after the calculation of applicable
departures under § 1B1.1(i) the term may expand to include a
range that is in fact part of the process of granting a departure.

                               -4-
(noting that “a Guideline may apply in situations not
contemplated by the background commentary to the Guideline,”
and in such cases “what matters is the plain language” of the
Guideline itself).
        Therefore, the majority’s construction of § 1B1.10 holds
only if it is read to allow for only a single “applicable guideline
range” and the mandatory minimum is deemed to be that range.
I ultimately concur in that interpretation, but for different
reasons than those cited by the majority.
        The plain language of the policy statement does suggest
that the Sentencing Commission envisioned only a single
applicable range given its reference to “the applicable guideline
range” rather than “an” applicable range. While the use of this
article might be a fairly weak sign of the Commission’s intent
on its own, the provision’s wording is bolstered by a potentially
reasonable justification for an approach that isolates a single
“applicable guideline range.” Were § 1B1.10 read to allow
resentencing any time any Guidelines range applied to a
defendant was subsequently reduced by a retroactive
amendment, it could open the door to resentencings where the
modified range played only the most tangential role in
determining the defendant’s sentence. If the Sentencing
Commission’s goal was indeed to avoid that result, the best
candidate for the Does’ “applicable” guideline ranges here
would seem to be their mandatory minimum sentences, as
Cordero does deem an applicable mandatory minimum to be the
“starting point” for the substantial assistance departure.
       This language is enough to prevent the application of the
rule of lenity, which would require us to construe § 1B1.10 in

                                -5-
favor of Appellants. As the Supreme Court has previously held
and recently confirmed, the rule of lenity is to be invoked only
in cases of “grievous ambiguity.” Huddleston v. United States,
415 U.S. 814, 831 (1974) (quoted in United States v. Hayes, 129
S. Ct. 1079, 1089 (2009)). Here, we have a specific sign of the
Sentencing Commission’s possible intent in its wording of the
policy statement, and may rely on that rather than a general rule
of statutory construction.
       Still, § 1B1.10’s wording is a frail basis for an
interpretation that would produce the troubling result, verging
on absurd, of allowing worse defendants a chance at reduced
sentences while depriving less serious offenders of the same
opportunity. For example, a defendant with a Guidelines range
higher than the mandatory minimum because of an offense
involving a significant quantity of crack cocaine who received
a departure to below the minimum would be eligible for
resentencing under the District Court’s understanding of §
1B1.10, whereas a defendant with an initial Guidelines range
below the mandatory minimum because of an offense involving
a smaller quantity of crack would not get the same opportunity
even if he also received a departure to below the mandatory
minimum. (Appellants’ Br. 31.) Such consequences are
particularly unnecessary since the goal of confining
resentencings to cases where a subsequently lowered Guidelines
range played a significant role in the original sentence would be
equally well-served by a different method: even if a defendant
is deemed eligible for resentencing, district court judges may
simply use their discretion under § 1B1.10(b) to find a lower
sentence unmerited where the altered Guidelines range was only
remotely relevant in determining the defendant’s term of

                               -6-
imprisonment.
       Additionally, at least some of the Sentencing
Commission’s staff authored a study of the consequences of
applying Amendment 706 retroactively in which they assumed
that defendants who had received a substantial assistance
departure from a mandatory minimum would in fact be eligible
for resentencing. See Glenn Schmitt et al., Analysis of the
Impact of the Crack Cocaine Amendment If Made Retroactive
5-6 (2007), http://www.ussc.gov/research.htm (cited in United
States v. Williams, 549 F.3d 1337, 1340 (11th Cir. 2008)).
While I am unsure what weight to give this source, it does raise
some questions as to how the Commission intended § 1B1.10 to
be applied.
       Finally, the majority does not differentiate the Does’
circumstances from those of another category of defendants
whom some courts have ruled eligible for resentencing under §
1B1.10: defendants who received departures under U.S.S.G. §
4A1.3(b) based on the sentencing judge’s determination that
their classification as career offenders represented an
overstatement of their criminal history. See, e.g., McGee, 553
F.3d 225; United States v. Poindexter, 550 F. Supp. 2d 578
(E.D. Pa. 2008); United States v. Ragland, 568 F. Supp. 2d 19
(D.D.C. 2008); see also U.S.S.G. § 1B1.1 cmt. n.1 (describing
both types of departures as methods for imposing sentences
“outside the applicable guideline range”). In both circumstances,
the mandated sentence is deemed inappropriate and the initial
Guidelines range may play a role in determining the proper
sentence, rendering it an “applicable” range.
       Given these considerations, I express some discomfort

                               -7-
with our interpretation of § 1B1.10. While its language barely
favors the majority’s interpretation, I am unsure whether our
reading of the policy statement truly reflects the intent of its
drafters. Therefore, while I concur with my colleagues’ ultimate
conclusion that John and Jane Doe are ineligible for
resentencing, further guidance from the Sentencing Commission
on this question would not go amiss.




                              -8-
