                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 15-3254
                       ___________________________

                            United States of America,

                      lllllllllllllllllllll Plaintiff - Appellee,

                                          v.

                             Maurice Jabbar White,

                     lllllllllllllllllllll Defendant - Appellant.
                                      ____________

                   Appeal from United States District Court
                    for the District of Minnesota - St. Paul
                                ____________

                          Submitted: October 21, 2016
                             Filed: June 12, 2017
                               ____________

Before LOKEN, SMITH1, and COLLOTON, Circuit Judges.
                            ____________

COLLOTON, Circuit Judge.




     1
       The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
       Maurice White pleaded guilty in 2008 to a charge that he conspired to
distribute crack cocaine. The district court2 sentenced him to 152 months’
imprisonment. This appeal concerns the district court’s decision in 2015 on White’s
motion to reduce his sentence under 18 U.S.C. § 3582(c)(2).

       At White’s original sentencing in 2009, the district court calculated White’s
guideline range as 188 to 235 months’ imprisonment, and then departed downward
from the bottom of the range by 36 months under USSG § 5K2.23. Section 5K2.23
provides that a downward departure may be appropriate if the defendant has
completed a term of imprisonment for another offense that is relevant conduct to the
instant offense of conviction. USSG §§ 5K2.23, 5G1.3(b). The court determined that
White had finished serving 36 months in prison for drug offenses that were part of the
relevant conduct making up the conspiracy to which he pleaded guilty. Therefore, the
court sentenced White to a term of 152 months.

       In 2014, while White was serving his term of imprisonment, the United States
Sentencing Commission adopted Amendment 782 and applied it retroactively. The
amendment reduced by two levels the offense levels assigned to the drug quantities
that trigger the statutory mandatory minimum penalties incorporated in USSG
§ 2D1.1. USSG App. C., Amend. 782 (2014). White then moved to reduce his
sentence under 18 U.S.C. § 3582(c)(2) based on the amended guideline.

      Under the amended guidelines, White’s advisory guideline range was 151 to
188 months. White argued that the district court should reduce his sentence from the
original 152 months to 120 months, the statutory minimum. He reasoned that the
court originally departed downward by 36 months from the bottom of the advisory
range, and he urged the court to follow the same course (subject to the statutory


      2
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.

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minimum) when making a reduction under § 3582(c)(2). In other words, he asked the
court to begin with a guideline sentence of 151 months at the bottom of the advisory
range, and then to apply a “credit” of 36 months (limited to 31 months by the
statutory minimum) based on discharged terms of imprisonment for offenses that
were relevant conduct to the instant conspiracy offense.

       The district court reduced White’s sentence to 151 months, the bottom of the
amended guideline range, but declined to reduce the term further. The court
concluded that it lacked authority under § 3582(c)(2) to give White “credit” for the
36 months that he served for prior convictions. White now appeals, arguing that the
district court erroneously denied his request for a larger reduction. We conclude that
White preserved this argument, and we review the district court’s interpretation of the
statute and sentencing guidelines de novo.

       Once a district court imposes sentence, the court can modify the term of
imprisonment only as provided in 18 U.S.C. § 3582(c). Section 3582(c)(2) allows a
district court to reduce a defendant’s term of imprisonment if the defendant was
sentenced based on a sentencing range that is subsequently lowered by the Sentencing
Commission. Any reduction must be “consistent with applicable policy statements
issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

         The applicable policy statement here is USSG § 1B1.10. Under that provision,
with one exception, the “court shall not reduce the defendant’s term of imprisonment
. . . to a term that is less than the minimum of the amended guideline range.” USSG
§ 1B1.10(b)(2)(A). The commentary is explicit that this limitation applies even when
the original sentence was below the guideline range based on a “downward departure
or variance.” USSG § 1B1.10, comment. (n.3). The only exception to this limitation
is where the defendant’s original term of imprisonment was less than the guideline
range “pursuant to a government motion to reflect the defendant’s substantial
assistance to authorities.” USSG § 1B1.10(b)(2)(B); see United States v. Harris, 688

                                         -3-
F.3d 950, 952 (8th Cir. 2012). In that case, “a reduction comparably less than the
amended guideline range . . . may be appropriate.” USSG § 1B1.10(b)(2)(B).

      White’s original term of imprisonment was less than the guideline range
because the district court granted a downward departure under § 5K2.23 to account
for White’s discharged terms of imprisonment. In ruling on White’s later motion to
reduce his sentence, the district court correctly determined that § 3582(c)(2) and
USSG § 1B1.10 forbid the court to reduce White’s sentence below the amended
guideline range. Although the court granted a downward departure at the original
sentencing, the guidelines do not allow the court to make a proportionate reduction
or departure below an amended guideline range on a motion under § 3582(c)(2).

      White argues that the limitation of § 1B1.10 should not apply, because the
reduction at his original sentencing was a “credit” for discharged terms of
imprisonment and not a “traditional” departure or variance based on unique
characteristics of the crime or the offender. Citing United States v. Malloy, 845 F.
Supp. 2d 475, 484 (N.D.N.Y. 2012), White contends that a defendant is eligible to
receive a reduction for undischarged terms of imprisonment under § 5G1.3(b), and
he complains that it would thus be “inequitable” to refuse a reduction for discharged
terms of imprisonment based on § 5K2.23. The short answer is that however
§ 5G1.3(b) applies in a § 3582(c)(2) proceeding, the guidelines are clear that the court
cannot reduce a defendant’s term below the amended guideline range based on a
downward departure for reasons other than substantial assistance. Section 5K2.23
provides for a downward departure based on a defendant’s discharged term of
imprisonment. See United States v. Shows, No. 2:09-CR-084, 2015 WL 2341031, at
*2-4 (E.D. Tenn. May 14, 2015).

       In any event, we also do not see an anomaly in the treatment of discharged and
undischarged terms of imprisonment, because § 5G1.3(b) does not permit a district
court to reduce a defendant’s sentence below the amended guideline range. Section

                                          -4-
5G1.3(b) provides that the sentencing court “shall adjust the sentence” for any period
of imprisonment already served on a defendant’s undischarged term of imprisonment
for another offense that is relevant conduct to the instant offense of conviction.
USSG § 5G1.3(b)(1). But § 5G1.3(b) does not reduce the defendant’s guideline
range; it allows for a “sentence reduction” after the court has determined the
applicable range. USSG § 5G1.3, comment. (n.2(C)); see USSG § 1B1.1(a)(8). The
undischarged term of imprisonment thus does not factor into a court’s determination
of an amended guideline range in a § 3582(c)(2) proceeding, and it does not justify
fixing a term of imprisonment that is less than the amended range. Reductions under
§ 5G1.3(b) and departures under § 5K2.23 at an original sentencing are treated
consistently in that respect. Whether § 1B1.10 should allow for consideration of
these reductions and departures in a § 3582(c)(2) proceeding is a matter for the
Sentencing Commission.

      The judgment of the district court is affirmed.
                     ______________________________




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