                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2328

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

M ONICA L. P OOLE,
                                            Defendant-Appellant.




           Appeal from the United States District Court
                for the Central District of Illinois.
           No. 05-CR-10066—Michael M. Mihm, Judge.



  A RGUED S EPTEMBER 9, 2008—D ECIDED D ECEMBER 19, 2008




  Before F LAUM, W ILLIAMS, and SYKES, Circuit Judges.
  S YKES, Circuit Judge. The district court denied Monica
Poole’s motion to modify her sentence pursuant to 18
U.S.C. § 3582(c)(2) on the ground that she was ineligible for
a reduction. Poole appeals, arguing that she is eligible for
a sentence reduction under § 3582(c)(2) because her
original sentence, subsequently reduced under Rule 35(b)
of the Federal Rules of Criminal Procedure, was based on a
2                                                  No. 08-2328

sentencing range the Sentencing Commission has since
lowered—specifically, Guidelines Amendment 706 pertain-
ing to crack cocaine sentences. We affirm. The district court
lacked subject-matter jurisdiction to revisit Poole’s sen-
tence because it was based on a statutory minimum
sentence, not a range the Commission has subsequently
lowered.


                       I. Background
   Monica Poole pleaded guilty to one count of distributing
five or more grams of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(iii). At sentencing the district court
first calculated Poole’s base offense level for crack cocaine
pursuant to U.S.S.G. § 2D1.1. This calculation resulted in a
guidelines range of 87-108 months. However, a prior felony
drug conviction subjected her to a statutory minimum
sentence of 120 months. 21 U.S.C. § 841(b)(1)(B). Because
the district court’s initial calculation of Poole’s guidelines
range was lower than the statutory minimum sentence, the
district court sentenced her pursuant to the statutorily
required minimum. See U.S.S.G. § 5G1.1(b).
  Nearly one year later, the government moved under Rule
35(b) to have Poole’s original sentence reduced for substan-
tial assistance to the government. The district court granted
the government’s motion and, using Poole’s statutory
minimum sentence as its starting point, reduced her
sentence 25 percent to 90 months. Poole later moved for a
further sentencing reduction pursuant to 18 U.S.C.
§ 3582(c)(2) on the basis of Guidelines Amendment 706,
which lowered the base offense level for crack cocaine
No. 08-2328                                                      3

offenses under U.S.S.G. § 2D1.1 by two levels to ameliorate
the 100:1 drug-quantity ratio between powder cocaine and
crack. See U.S.S.G. app. C, amend. 706 (2007). She requested
a sentence of 65 months based on a guidelines range that
took Amendment 706 and her substantial-assistance
reduction into account but that did not apply the statutory
minimum.
  The district court held that Poole was ineligible for
resentencing under § 3582(c)(2) because her sentence was
not based on a sentencing range that Amendment 706 had
subsequently lowered, but instead was based on the
statutory minimum.


                        II. Discussion
  The sole issue on appeal is whether the district court had
jurisdiction to revisit Poole’s sentence under 18 U.S.C.
§ 3582(c)(2) based on Sentencing Guidelines Amendment
706. Congress has authorized district courts to modify
sentences in very limited circumstances. Section 3582(c)(2)
permits a district court to revisit a sentence “in the case
of a defendant who has been sentenced to a term of im-
prisonment based on a sentencing range that has subse-
quently been lowered by the Sentencing Commission.”1 We



1
  A second clause in § 3582(c)(2) states that a district court may
reduce a sentence “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
                                                     (continued...)
4                                                   No. 08-2328

recently concluded that this language limits a district
court’s subject-matter jurisdiction. United States v. Lawrence,
535 F.3d 631, 637-38 (7th Cir. 2008). Accordingly, our
analysis begins by asking whether Poole’s sentence was
“based on” a sentencing range that Amendment 706 has
subsequently lowered.
  The district court held, and we agree, that Poole’s
sentence was “based on” a statutory minimum, not a
sentencing range that Amendment 706 lowered. The
district court initially calculated Poole’s base offense level
pursuant to U.S.S.G. § 2D1.1, which Amendment 706 has
subsequently lowered. This calculation resulted in a
guidelines range of 87-108 months. However, a prior felony
drug conviction subjected her to a statutory minimum
sentence of 120 months. Because the statutory minimum
exceeded the otherwise applicable guidelines range, the
statutory minimum became Poole’s guidelines sentence.
See U.S.S.G. § 5G1.1(b) (“Where a statutorily required
minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required mini-
mum sentence shall be the guideline sentence.”); United
States v. Cordero, 313 F.3d 161, 166 (3d Cir. 2002) (under
§ 5G1.1(b) the statutory minimum “subsumes and dis-
places the otherwise applicable guideline range”). Thus,



1
  (...continued)
by the Sentencing Commission.” United States v. Lawrence
explains that this clause limits a court’s authority to reduce
sentences once it has jurisdiction. 535 F.3d 631, 637-38 (7th Cir.
2008).
No. 08-2328                                                   5

while Amendment 706 lowered Poole’s base offense level,
it has not lowered the sentencing range on which her
sentence was actually based—a statutory minimum
sentence of 120 months’ imprisonment.
  Poole nevertheless argues that her sentence was “based
on” a range that Amendment 706 has subsequently low-
ered because the district court initially calculated a guide-
lines range for her that the amendment has now altered.
But this view ignores the fact that the district court’s initial
guidelines calculation became academic once her prior
drug felony was factored in, triggering the statutory
minimum sentence. A sentence is not “based on” a range
that Amendment 706 subsequently lowered for purposes
of a § 3582(c)(2) motion if the defendant was ultimately
sentenced pursuant to a statutory minimum, even if the
district court initially calculated an otherwise applicable
range that the amendment lowered.
  This conclusion is consistent with the position taken by
other federal appellate courts that have considered the
relationship between guidelines amendments and the plain
language of § 3582(c)(2). See United States v. Johnson, 517
F.3d 1020, 1024 (8th Cir. 2008) (Amendment 706 had no
effect on eligibility for resentencing where statutory
minimum became the guidelines sentence under
§ 5G1.1(b)); United States v. Mullanix, 99 F.3d 323, 324 (9th
Cir. 1996) (district court lacked authority to reduce sen-
tence because it was based on statutory minimum, not an
otherwise applicable range lowered by a separate amend-
ment).
6                                                  No. 08-2328

  The Sentencing Commission’s recently amended policy
statement also supports our reading of § 3582(c)(2)’s
jurisdictional language. In discussing a defendant’s
eligibility for a sentence reduction under § 3582(c)(2),
Application Note 1(A) states:
    Eligibility for consideration under 18 U.S.C. 3582(c)(2)
    is triggered only by an amendment listed in subsection
    (c) that lowers the applicable guideline range. Accord-
    ingly, a reduction in the defendant’s term of imprison-
    ment 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 imprison-
    ment).
U.S.S.G. § 1B1.10 cmt. n.1(A) (emphasis added).
  The Commission thus has indicated that defendants in
precisely the same situation as Poole are not eligible for
sentencing reconsideration under § 3582(c)(2). The Appli-
cation Note confirms that Amendment 706 does not have
the effect of lowering Poole’s guidelines range because the
range applicable to her by operation of law was the
statutory minimum term. See U.S.S.G. § 1B1.10 cmt. n.1(A);
see also United States v. Moore, 541 F.3d 1323, 1328 (11th Cir.
2008) (citing Note 1(A) to support holding that defendants’
sentences were not based on initial base-offense-level
calculations for crack cocaine where the district court
ultimately applied separate guidelines for career offend-
No. 08-2328                                                      7

ers). Indeed, even if the district court had jurisdiction to
revisit Poole’s sentence, Application Note 1(A) makes it
clear that reducing her sentence would be inconsistent with
the Sentencing Commission’s policy statement.2
   One twist in Poole’s case supplies an additional argu-
ment, although one we ultimately find unpersuasive. Poole
points to the fact that the district court subsequently
reduced her sentence under Rule 35(b) of the Federal Rules
of Criminal Procedure to a term of imprisonment below the
statutory minimum and within her otherwise applicable
guidelines range on the government’s “substantial assis-
tance” motion. To the extent this is an argument that her
reduced sentence was not also based on the statutory
minimum sentence, Poole is incorrect.
  Rule 35(b) allows a district court to reduce a sentence for
substantial assistance upon the government’s motion. It is
one of few instances in which a court may disregard a
statutory minimum sentence. See 18 U.S.C. § 3553(e).


2
   We have concluded in two unpublished orders that Applica-
tion Note 1(A) precludes a district court from reducing a
sentence based on the statutory mandatory minimum for crack
cocaine. United States v. Trapps, 289 F. App’x 953 (7th Cir. 2008);
United States v. Luckey, 2008 WL 3929587 (7th Cir. Aug. 25, 2008).
In both cases we cited Application Note 1(A) for the proposition
that any such reduction would violate the second clause of
§ 3582(c)(2), prohibiting reductions inconsistent with an ap-
plicable policy statement. The Application Note speaks not
only to the second clause of § 3582(c)(2) but also to the first
requiring that a sentence be “based on” a subsequently lowered
range in order to qualify for potential reduction.
8                                                  No. 08-2328

Although the district court granted Poole a statutorily
authorized reduction under Rule 35(b), it used her original
statutory minimum sentence as its starting point for
issuing the reduction. Poole’s reduced sentence thus was
in no way based on or affected by her otherwise applicable
sentencing range, which Amendment 706 would have
lowered. Accordingly, the sentence reduction under Rule
35(b) did not vest the court with jurisdiction under
§ 3582(c)(2). See Johnson, 517 F.3d at 1024 (“Since the district
court used the 120 month mandatory minimum as its point
of departure [for substantial assistance], resentencing is not
warranted.”); Moore, 541 F.3d at 1330 (holding that defen-
dants were not eligible for § 3582(c)(2) consideration
because even after applying a reduction for substantial
assistance, the court still had not based their sentences on
a range reduced by Amendment 706).
  Poole also suggests that our recent decision in United
States v. Chapman, 532 F.3d 625 (7th Cir. 2008), somehow
affects her case. It is not entirely clear why she believes
Chapman is relevant. Chapman affirmed a district court’s
use of 18 U.S.C. § 3553(a) factors to grant a sentence
reduction for substantial assistance under Rule 35(b) that
was more modest than what the defendant’s substantial
assistance may have warranted if considered alone. 532
F.3d at 628. Poole understands Chapman to stand for the
proposition that a district court may rely on § 3553(a) in a
Rule 35(b) proceeding to grant a sentence reduction beyond
what a defendant’s substantial assistance is worth. Poole
apparently questions the district court’s Rule 35(b) order in
light of Chapman. However, because Poole did not appeal
the district court’s Rule 35(b) order, and because we have
No. 08-2328                                                  9

already concluded that the district court lacks jurisdiction
to consider a sentence reduction under § 3582(c)(2), we
need not consider this argument.
  We note for completeness that Poole’s expansive reading
of Chapman would allow a court to use the narrow
resentencing authority granted under Rule 35(b) to engage
in an entirely new sentencing inquiry in no way related to
the question of a defendant’s substantial assistance. But
Chapman stands only for the proposition that after calculat-
ing the value of the defendant’s assistance to the govern-
ment, a district court may ask whether § 3553(a) factors
weigh in favor of or against granting a reduction equiva-
lent to that level of assistance. See 532 F.3d at 628. The
opinions of the Ninth and Eleventh Circuits that we cited
in Chapman are also limited to that proposition. United
States v. Manella, 86 F.3d 201, 204-05 (11th Cir. 1996) (“[T]he
only factor that may militate in favor of a Rule 35(b) reduc-
tion is the defendant’s substantial assistance. Nothing in
the text of the rule purports to limit what factors may . . .
militate in favor of granting a smaller reduction.”); see also
United States v. Doe, 351 F.3d 929, 932 (9th Cir. 2003) (citing
Manella for the same proposition). Indeed, these circuits
have rejected the broader application of § 3553(a) that
Poole now advocates for considering sentence reductions.
See Doe, 351 F.3d at 933; United States v. Chavarria-Herrara,
15 F.3d 1033, 1037 (11th Cir. 1994). And contrary to Poole’s
assertion, nothing in Chapman suggests that its holding
10                                                   No. 08-2328

applies to expand the district court’s jurisdiction to con-
sider a § 3582(c)(2) sentence reduction.3
  For the foregoing reasons, the judgment of the district
court is A FFIRMED.




3
  As in United States v. Taylor, 520 F.3d 746, 748 (7th Cir. 2008),
we decline to address whether application of the restrictions in
U.S.S.G. § 1B1.10 is mandatory or advisory; the parties have not
argued the matter.



                             12-19-08
