                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            ___________

                No. 17-3448
                ___________

      UNITED STATES OF AMERICA

                      v.

        REYNALDO RIVERA-CRUZ,
                       Appellant
              __________

On Appeal from the United States District Court
     for the Middle District of Pennsylvania
          (D.C. No. 1-06-cr-00043-001)
District Judge: Honorable Christopher C. Conner
                  ___________

 Submitted Under Third Circuit L.A.R. 34.1(a)
             September 7, 2018

 Before: HARDIMAN, KRAUSE, and BIBAS,
              Circuit Judges.

          (Filed: September 24, 2018)
Carlo D. Marchioli
Office of United States Attorney
220 Federal Building and Courthouse
Harrisburg, PA 17108
       Attorney for Appellee

Ronald A. Krauss
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
       Attorney for Appellant

                        ____________

                 OPINION OF THE COURT
                      ____________

HARDIMAN, Circuit Judge.

       Reynaldo Rivera-Cruz appeals an order of the United
States District Court for the Middle District of Pennsylvania
denying his motion for a sentence reduction. The relevant
statute (18 U.S.C. § 3582(c)(2)) authorizes sentence
reductions for defendants initially “sentenced to a term of
imprisonment based on” a United States Sentencing
Guidelines (USSG) range that was later lowered by the
United States Sentencing Commission. In Koons v. United
States, 138 S. Ct. 1783 (2018), the Supreme Court held that
such relief is unavailable to a defendant whose Guidelines
range is “scrapped” in favor of a statutory mandatory
minimum sentence. Id. at 1787–88. We now hold that the
same is true where, as here, a statutory maximum displaces
the defendant’s Guidelines range.




                               2
                               I

       Rivera-Cruz pleaded guilty to distributing and
possessing with intent to manufacture and distribute cocaine
hydrochloride, in violation of 21 U.S.C. § 841(a)(1). The
quantity of drugs involved yielded a base offense level of 32,
see USSG § 2D1.1(c)(4) (2006), and the United States
Probation Office recommended a two-level firearm
enhancement and a two-level obstruction of justice
enhancement. Based on a total offense level of 36 and a
criminal history category of VI, Rivera-Cruz’s presentence
report (PSR) calculated his Guidelines range as 324–405
months’ imprisonment. Because Rivera-Cruz’s offense
carried a statutory maximum of 240 months’ imprisonment,
however, the PSR fixed his Guidelines range at that number.
See 21 U.S.C. § 841(b)(1)(C); USSG §§ 1B1.1(a)(8),
5G1.1(a).

       At Rivera-Cruz’s March 2010 sentencing hearing, the
District Court adopted the PSR’s findings and agreed that
“because the statutory maximum penalty is 20 years, the
[G]uideline sentence is restricted to 240 months.” App. 122.
The District Court then considered the Government’s motion
for a downward departure under USSG § 5K1.1 to account
for Rivera-Cruz’s substantial assistance to the Government.
The Government requested a sentence of 25 months below
the mandatory maximum, or 215 months’ imprisonment.
After discussing the relevant factors in § 5K1.1, the District
Court announced that it would grant the motion. In
accordance with Third Circuit precedent, it calculated the
extent of the departure in terms of “offense levels as opposed
to specific quantities of time.” App. 127; see also United
States v. Fumo, 655 F.3d 288, 316–17 (3d Cir. 2011)
(explaining that, unlike a variance, a departure “change[s] the



                              3
Guidelines range” and thus requires the sentencing court to
“calculate a final guideline offense level and . . . range”). The
Court settled on a five-level departure to an offense level of
31, noting that the Government-recommended sentence of
215 months fell “approximately in the middle” of the
corresponding range of 188–235 months’ imprisonment.
App. 127. It then sentenced Rivera-Cruz to 188 months’
imprisonment. Rivera-Cruz unsuccessfully appealed his
conviction and sentence. United States v. Rivera-Cruz, 401 F.
App’x 677, 678 (3d Cir. 2010).

       Four years later, the Sentencing Commission adopted
Guidelines Amendment 782, which retroactively reduced
Rivera-Cruz’s base offense level by two. See USSG App. C,
Amdt. 782 (2014); id. § 1B1.10(d); see also 28 U.S.C.
§ 994(o). With a total offense level of 34 (consisting of a base
offense level of 30 and the aforementioned enhancements)
and the same criminal history category, Rivera-Cruz’s
applicable Guidelines range would have been 262–327
months’ imprisonment. Because of the statutory maximum,
however, Rivera-Cruz’s Guidelines range remained fixed at
240 months.

       In June 2016, Rivera-Cruz requested a sentence
reduction under 18 U.S.C. § 3582(c)(2), citing Amendment
782. In addition to requiring that a defendant’s initial
sentence be “based on” a subsequently lowered range,
§ 3582(c)(2) requires that a Guidelines amendment cited in
support of a § 3582(c)(2) motion “have the effect of lowering
the defendant’s applicable guideline range.” USSG
§ 1B1.10(a)(2)(B); 18 U.S.C. § 3582(c)(2) (requiring all
sentence reductions to be “consistent with applicable policy
statements,” including USSG § 1B1.10(a)(2)(B)). Rivera-
Cruz acknowledged that the 240-month statutory maximum



                               4
supplanted his initial Guidelines range both before and after
Amendment 782. He nevertheless argued that, in light of his
five-level downward departure, Amendment 782 effectively
reduced his offense level from 31 to 29, which “ha[d] the
effect of lowering [his] applicable guideline range,”
§ 1B1.10(a)(2)(B), from 188–235 months’ imprisonment to
151–188 months. And because the District Court used his
otherwise applicable—i.e., pre-maximum—Guidelines range
of 324–405 months’ imprisonment as a baseline for its
downward departure, he argued, his sentence was “based on”
a range lowered by the Sentencing Commission as required
by 18 U.S.C. § 3582(c)(2). Citing the District Court’s original
bottom-of-the-range sentence, Rivera-Cruz requested a 151-
month sentence.

       The District Court denied Rivera-Cruz’s motion. It did
not determine whether Rivera-Cruz was initially sentenced
“based on” a later lowered range, instead reasoning that,
because of the statutory maximum, Amendment 782 had no
effect on his Guidelines range. Rivera-Cruz filed this timely
appeal.

                              II

       The District Court had jurisdiction under 18 U.S.C.
§§ 3231 and 3582(c)(2). We have jurisdiction under 28
U.S.C. § 1291 and may affirm the District Court’s order “on
any basis supported by the record.” Murray v. Bledsoe, 650
F.3d 246, 247 (3d Cir. 2011) (per curiam). We review de
novo a district court’s determination that a defendant is
ineligible for relief under 18 U.S.C. § 3582(c)(2). United
States v. Weatherspoon, 696 F.3d 416, 420 (3d Cir. 2012).




                              5
                             III

       In this appeal, Rivera-Cruz renews his claim that he is
eligible for a sentence reduction because the District Court
used his Guidelines range (based on an offense level of 36) as
a “starting point” for its downward departure, so the Court
“actually based [his] sentence on a Guidelines sentencing
range . . . subsequently lowered by the Sentencing
Commission.” Rivera-Cruz Br. 12. He also argues that the
District Court erred in determining that Amendment 782
“ha[d] no impact on his Guidelines range.” Id. Because
Rivera-Cruz’s first argument lacks merit, we will affirm.

        In many cases, a defendant’s Guidelines range serves
as the “foundation” of the ultimate sentencing decision.
Koons, 138 S. Ct. at 1789 (citation omitted). In some cases,
however, the Guidelines themselves “call for the ranges to be
tossed aside.” Id. at 1788. “When that happens—when the
range[] play[s] no relevant part in the judge’s determination
of the defendant’s ultimate sentence—the resulting sentence
is not ‘based on’ a Guidelines range.” Id. (quoting 18 U.S.C.
§ 3582(c)(2)). That’s what happened in Koons, where five
petitioners were denied sentence reductions because their
offenses carried a statutory minimum penalty that exceeded
the top end of their Guidelines ranges. Id. at 1787–88. 1
Having “dropped out of the case,” the displaced Guidelines

      1
         See also USSG § 1B1.1(a)(8) (directing courts, after
calculating a Guidelines range according to § 1B1.1(a)(1)–
(7), to apply, among other provisions, § 5G1.1(b), which in
turn requires the calculated range to be replaced by an
applicable mandatory minimum when the minimum exceeds
the top of the range).




                              6
ranges “could not come close to forming the basis for the
sentence that the District Court imposed.” Id. at 1788
(internal quotation marks and citation omitted). Because the
Guidelines ranges did not play “a relevant part in the
framework the sentencing judge used in imposing the
sentence,” the Sentencing Commission’s subsequent decision
to lower those ranges did not make the petitioners eligible for
a sentence reduction under § 3582(c)(2). Id. at 1788–89
(alterations, internal quotation marks, and citation omitted).

        Unlike Koons, this appeal involves a statutory
maximum instead of a statutory minimum. That distinction is
immaterial for purposes of the present inquiry, however.
Using parallel language, the Guidelines call for a defendant’s
initial sentencing range to be replaced with the statutory
maximum in the same way a range is replaced by a statutory
minimum. In both cases, USSG § 1B1.1(a)(8) instructs courts
to apply § 5G1.1, among other provisions, after calculating an
initial range. In turn, § 5G1.1 provides that “[w]here the
statutorily authorized maximum sentence is less than the
minimum of the applicable guideline range, the statutorily
authorized maximum sentence shall be the guideline
sentence,” id. § 5G1.1(a), just as it provides in the next
paragraph 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,” id. § 5G1.1(b). Like a range
that falls entirely below a statutory minimum, a range (such as
Rivera-Cruz’s) that falls entirely above a statutory maximum
will typically “drop[] out of the case.” Koons, 138 S. Ct. at
1788. And once out of the case, it cannot form the basis of the
sentence. See id.; see also United States v. Mateo, 560 F.3d
152, 155 (3d Cir. 2009) (interpreting “sentencing range” as




                              7
used in § 3582(c)(2) to refer to “the end result of the overall
guideline calculus, not the series of tentative results
reached . . . in the performance of that calculus” (citation
omitted)). For that reason, Rivera-Cruz was not sentenced
“based on” a Guidelines range that was subsequently lowered
by the Sentencing Commission. 2

       Rivera-Cruz resists this conclusion by attempting to
show that, notwithstanding the statutory maximum, the
District Court based his sentence on his initial Guidelines
range. In other words, he argues, that range did not actually
“drop[] out of the case” after it was displaced. Koons, 138 S.
Ct. at 1788. He emphasizes that when it departed downward
five levels, the District Court explicitly referred to his initial
Guidelines calculation, and that once the Court settled on a
new range, it sentenced him to the bottom of that range—not
the 215-month sentence the Government recommended in its
substantial assistance motion. He concedes that if the District
Court had instead used his statutory maximum as the starting
point for its departure, he would be ineligible for § 3582(c)(2)


       2
           Koons also makes clear that the District Court’s
downward departure was unrelated to Rivera-Cruz’s initial
Guidelines range, and therefore does not serve as a basis for
§ 3582(c)(2) eligibility. See 138 S. Ct. at 1789. A court’s
consideration of a substantial assistance motion is based not
on the initial Guidelines range, but rather on the court’s
evaluation of the defendant’s assistance. Id.; see
§ 5K1.1(a)(1)–(5) (listing factors a court may consider,
including “the significance and usefulness of the defendant’s
assistance” and the “truthfulness, completeness, and
reliability of any information or testimony provided”).




                                8
relief. But he claims “that’s not this case.” Rivera-Cruz
Br. 15.

       We do not share Rivera-Cruz’s interpretation of the
District Court’s decisionmaking process. The District Court
did return to Rivera-Cruz’s initial Guidelines calculation
before announcing its sentencing decision. But it did so for a
limited purpose: to determine the number of offense levels by
which to depart downward. By necessity, that determination
began with Rivera-Cruz’s initial offense level. But the
District Court explained that its decision to express Rivera-
Cruz’s departure in terms of offense levels—rather than
simply departing from the statutory maximum by a certain
number of months—was based on this Court’s precedent, not
a reconsideration of Rivera-Cruz’s initial Guidelines range.
Indeed, the District Court noted that its downward departure
aligned with the Government’s recommendation of 215
months’ imprisonment, which fell near the midpoint of
Rivera-Cruz’s new range. The Government’s 215-month
recommendation, in turn, was based expressly on the 240-
month statutory maximum. Rivera-Cruz’s initial Guidelines
range thus did not figure substantively into the District
Court’s departure determination. Consequently, the Court’s
ultimate decision to sentence Rivera-Cruz to 188 months’
imprisonment—the bottom of his post-departure range—is
equally untethered from his initial Guidelines calculation. In
context, therefore, the District Court’s reference to Rivera-
Cruz’s initial Guidelines range did not revive it as “a relevant
part [of] the framework” governing the sentencing decision.
Koons, 138 S. Ct. at 1788.

      For these reasons, Rivera-Cruz’s sentence was not
“based on” his initial Guidelines range, and the Sentencing
Commission’s lowering of that range by Amendment 782 did



                               9
not make Rivera-Cruz eligible for a sentence reduction under
18 U.S.C. § 3582(c)(2). Because the statute precludes relief
where a sentence is not “based on” a lowered Guidelines
range, we need not resolve, as the District Court did, whether
Amendment 782 “ha[d] the effect of lowering” Rivera-Cruz’s
“applicable guideline range.” USSG § 1B1.10(a)(2)(B).

                       *      *      *

       Like the petitioners in Koons, Rivera-Cruz received a
sentence “based on” a statutory requirement, not on a
Guidelines range that was later lowered by the United States
Sentencing Commission. Rivera-Cruz was therefore ineligible
for a sentence reduction under 18 U.S.C. § 3582(c)(2).
Accordingly, we will affirm.




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