                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0410n.06

                                        Case No. 15-6205
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                          Jul 21, 2016
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk



UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE WESTERN DISTRICT OF
LEANDRE WATKINS,                                    )       KENTUCKY
                                                    )
       Defendant-Appellant.                         )
                                                    )


       BEFORE: BOGGS, CLAY, and SUTTON, Circuit Judges.

       BOGGS, Circuit Judge.       When Leandre Watkins was sentenced on convictions for

possession with intent to distribute cocaine base and being a felon in possession of a firearm, the

district court granted a downward departure on the view that his criminal-history category

overrepresented the seriousness of his past offenses. A year later, Amendment 782 to the federal

sentencing guidelines reduced the base offense level for Watkins’s drug crime. The district court

found that it was nonetheless prohibited from reducing Watkins’s term of imprisonment because

the original sentence was at the low end of the amended guideline range. Thus, it did not

consider the effect of its original downward departure in making its second calculation. That

was a correct application of the guidelines, and we therefore affirm.
Case No. 15-6205, United States v. Watkins


                                                I

       Before turning to the facts of Watkins’s case, we briefly discuss the statute and

sentencing guidelines that provide the framework for considering his argument that the district

court should have considered him eligible for a sentence reduction.

       Generally, a district court may not modify a sentence once it has been imposed. United

States v. Johnson, 564 F.3d 419, 421 (6th Cir. 2009). Congress has created statutory exceptions

to that rule. The exception at issue in this appeal, 18 U.S.C. § 3582(c)(2), permits courts to

reduce a defendant’s term of imprisonment if doing so is consistent with applicable United States

Sentencing Commission policy statements and the original sentence was “based on a sentencing

range” that the Commission later lowered.

       Relevant here, a policy statement at §1B1.10 of the Sentencing Guidelines states that a

court may reduce a prison sentence if a subsequent amendment to the Guidelines Manual lowers

the “guideline range applicable to that defendant.” USSG §1B1.10(a)(1). Courts are directed to

“determine the amended guideline range” that would have applied if the amendment was in

effect when the defendant was sentenced.        Id. at (b)(1).   “[O]ther guideline applications

decisions” made at the original sentencing are “unaffected” by this exercise.       Ibid.   If no

amendment listed in §1B1.10(d) lowers the defendant’s “applicable guideline range,” then a

sentence reduction is inconsistent with §1B1.10 and, therefore, not authorized by § 3582(c)(2).

§1B1.10(a)(2)(B).

       Circuits were initially split on the meaning of a defendant’s “applicable guideline range”

for purposes of §1B1.10. Several took the position that courts must account for any departures at

the original sentencing before arriving at the “applicable guideline range.” See, e.g., United

States v. Flemming, 617 F.3d 252, 268 (3d Cir. 2010); United States v. Cardosa, 606 F.3d 16, 21



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Case No. 15-6205, United States v. Watkins


(1st Cir. 2010); United States v. McGee, 553 F.3d 225, 228–30 (2d Cir. 2009) (per curiam).

Under this theory, a sentencing court that departed to a lower criminal-history category because

the original category overrepresented the seriousness of the defendant’s criminal history, see

USSG §4A1.3(b)(1), was merely determining the defendant’s correct criminal-history

category—a necessary precursor to establishing the applicable guideline range. See, e.g., United

States v. Munn, 595 F.3d 183, 192 (4th Cir. 2010) (citing USSG §1B1.1 (2009)).

       We took the opposing view:        A departure necessarily comes after the defendant’s

“applicable guideline range” is established. Analyzing the language of §1B1.10, §1B1.1, and its

application note, we held that the applicable guideline range is the range that applies before the

court grants any discretionary departures. United States v. Pembrook, 609 F.3d 381, 384–87 (6th

Cir. 2010). Other circuits shared this position. See, e.g., United States v. Guyton, 636 F.3d 316,

320 (7th Cir. 2011); United States v. Darton, 595 F.3d 1191, 1197 (10th Cir. 2010); United

States v. Collier, 581 F.3d 755, 758–59 (8th Cir. 2009).

       In 2011, the Sentencing Commission addressed the split by issuing Amendment 759.

The amendment added language to §1B1.10’s application note, which clarified that “applicable

guideline range” is “determined before consideration of any departure provision in the

Guidelines Manual or any variance.” USSG App. C, vol. III, at 416 (2011) (amending §1B1.10,

comment (n.1(A)). As the Commission explained, Amendment 759 “adopt[ed] the approach of

the Sixth, Eighth, and Tenth Circuits” in defining “applicable guideline range.” Id. at 421.

                                                II

       On April 2, 2012, federal and local law enforcement executed a search warrant of a

residence in Hopkinsville, Kentucky, where Watkins resided. They found 14.422 grams of crack

cocaine and a .380-caliber pistol. Two days later, Watkins was arrested. He eventually pleaded



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Case No. 15-6205, United States v. Watkins


guilty to possession with intent to distribute crack cocaine, 21 U.S.C. § 841(a)(1), and possession

of a firearm by a felon, 18 U.S.C. § 922(g)(1).                     A federal probation officer prepared a

presentence report that calculated a guideline imprisonment range of 57 to 71 months based on a

total offense level of 19 and criminal-history category V. The report scored Watkins’s criminal

history at 10 points. Had Watkins received one point less, his criminal-history category would

have been IV and his guideline imprisonment range would have been 46 to 57 months. See

USSG Ch.5, Pt.A (2013).

         Watkins objected to the report. He took issue with a criminal-history point that had been

assessed based on a sentence of 4 months of imprisonment, which was imposed for failure to pay

fines stemming from a 1999 misdemeanor DUI when he was 18. Although he conceded that the

point “[wa]s properly calculated,” Watkins asked the court to “deduct[]” it or to “consider his

criminal history over-represented.” The district court was swayed. At a sentencing hearing on

February 11, 2014, the court explained that it would decrease Watkins’s criminal-history

category “down to a IV on a departure based on overrepresentation of the criminal history.”1 See

id. §4A1.3(b)(1). It sentenced Watkins to 46 months of imprisonment—at the bottom of the

guideline range for a defendant with offense level 19 and criminal-history category IV.

         In November 2014, the Sentencing Commission enacted Amendment 782 to the

Guidelines, which reduced the base offense levels for some drug quantities under USSG

§2D1.1(c). See USSG App. C, suppl., at 64–74 (2014). For defendants like Watkins, who was

sentenced under §2D1.1 with a drug quantity of at least 11.2 grams but less than 16.8 grams of

cocaine base, the base offense level dropped from 20 to 18. Compare §2D1.1(c)(10) (2013),


1
  Elsewhere during the hearing, the district court referred to its departure as a “variance.” For purposes of this
appeal, the distinction is irrelevant. For clarity’s sake, we note that the court’s application of a guideline provision
to impose a sentence outside the advisory range was a departure, not a variance. See United States v. Grams, 566
F.3d 683, 686–87 (6th Cir. 2009) (per curiam).

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Case No. 15-6205, United States v. Watkins


with §2D1.1(c)(11) (2014). Had Watkins been sentenced after Amendment 782 took effect, his

total offense level would have been 17.

       In October 2015, the district court considered whether it could reduce Watkins’s sentence

under 18 U.S.C. § 3582(c)(2). It calculated an amended guideline imprisonment range of 46 to

57 months based on offense level 17 and criminal-history category V, the latter over Watkins’s

objection. Finding that the original sentence of imprisonment was at the bottom of the amended

range, the court concluded that it lacked discretion under § 3582(c)(2) to modify the sentence.

                                                III

       On appeal, Watkins argues that the district court’s downward departure at his 2014

sentencing hearing should be reflected in his applicable guideline range under §1B1.10. That

position runs directly contrary to Sixth Circuit precedent and the 2011 amendment to the

Sentencing Guidelines. In United States v. Pembrook, a defendant who qualified as a career

offender sought the §4A1.3 overrepresentation downward departure and the district court

obliged. 609 F.3d at 383. Nearly ten years later, the Sentencing Commission adopted an

amendment to the guidelines that reduced his base offense level. Ibid. We held that “applicable

guideline range” under §1B1.10 refers to a defendant’s guideline range before any departure. Id.

at 384. A “downward departure” under §4A1.3 is defined as a departure that results in “a

sentence less than a sentence that could be imposed under the applicable guideline range.”

§1B1.1, comment (n.1(E)) (emphasis added); see §4A1.3, comment (n.1). That definition, the

court observed, “indicates that a § 4A1.3 departure is a departure from the applicable guideline

range, not a departure to the applicable guideline range.” 609 F.3d at 386. We therefore held

that the Pembrook defendant’s applicable guideline range was his range before taking into

account the district court’s §4A1.3 departure. Id. at 387.



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Case No. 15-6205, United States v. Watkins


       The Sentencing Commission’s later clarification of “applicable guideline range” only

reinforces our holding in Pembrook. Amendment 759, published soon after Pembrook was

decided, explicitly adopted our approach. It “amend[ed] Application Note 1 to clarify that the

applicable guideline range referred to in §1B1.10 . . . is determined before consideration of any

departure provision in the Guidelines Manual or any variance.” USSG App. C, vol. III, at 421

(Reason for Amendment).        Any possible doubt as to whether the Commission embraced

Pembrook’s interpretation is resolved by its reference to that decision. The Commission’s

statement of reasons for the amendment cites United States v. Guyton for a list of the circuits

whose stance—that the “applicable guideline range” is set before any departure—it was

adopting. Ibid. Guyton thoroughly outlines the then-current circuit split and cites Pembrook for

the Sixth Circuit position. 636 F.3d at 320.

       Other circuits have considered this same issue in the wake of Amendment 759. All,

including those that had previously been on the other side of the split, have held that for purposes

of §1B1.10, courts must determine a defendant’s applicable guideline range without regard to

any potential departure. See United States v. Ornelas, No. 15-10522, 2016 WL 3126272, at *3

(9th Cir. June 3, 2016) (collecting cases).

       None of Watkins’s arguments to the contrary convince us that Pembrook does not resolve

his appeal. As Watkins notes, the Pembrook defendant’s guideline range was based on the

career-offender guideline and Watkins’s is based on the drug-quantity guideline. However, that

distinction makes no difference here because the focus of the inquiry is on whether the

amendment “lower[s] the defendant’s applicable guideline range,” §1B1.10(a)(2)(B) (emphasis

added), not which guideline informed the applicable guideline range to begin with. Regardless

of a sentencing range’s basis, the court must calculate it “before consideration of any departure



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Case No. 15-6205, United States v. Watkins


provision” in the guidelines. §1B1.10, comment. (n.1(A)). In Pembrook, as in this case, before

the district court granted a §4A1.3(b) departure, the applicable guideline range had already been

established. Because Watkins’s original 46-month sentence was at the low end of the applicable

guideline range—and 46 months is also at the low end of the amended guideline range—no

further reduction is available to him.

       Watkins also points to language in §1B1.10(b)(1) and its application note reminding

courts applying § 3582(c)(2) that “all other guideline application decisions” are “unaffected” by

a determination of the amended guideline range. He takes this to mean that an amended

guideline range must take into account downward departures. Not only does that interpretation

directly contradict the Sentencing Commission’s direction on how to determine the applicable

guideline range, see §1B1.10, comment. (n.1(A)), but it has no grounding in the text whose

meaning it purports to explain. As is clear from language and context, that phrase does none of

the heavy lifting that Watkins wants. Section 1B1.10(b)(1) gives step-by-step instructions for

how to determine a defendant’s amended guideline range. The “unaffected” clause simply

reminds courts that § 3582(c)(2) does not also grant license to reexamine other components of

past sentencing decisions.

       Nor can Watkins find support in §1B1.1(a)’s direction to “[d]etermine the defendant’s

criminal history category as specified in Part A of Chapter Four” before “[d]etermin[ing] the

guideline range.” See §1B1.1(a)(6)–(7). Because Part A of Chapter Four includes the §4A1.3

departure, Watkins argues, it is part and parcel of the criminal-history-category determination,

which precedes the court’s calculation of the guideline range. That position would have more

force if the instruction was to consider every subsection of Part A of Chapter Four. After all, two

of §4A1’s subsections tell courts how to compute a defendant’s criminal-history category. See



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Case No. 15-6205, United States v. Watkins


USSG §§4A1.1, 4A1.2. The other, §4A1.3, does not; it contains the standard for criminal-

history-category departures.    As the Sentencing Commission has explained, courts should

consider departure provisions only after determining the guideline range. Section 1B1.1(a)’s

instruction to look to Part A of Chapter Four to establish the criminal-history category is not also

an invitation to consider Part A provisions that bear no relation to that task. The Pembrook court

rejected this very argument. 609 F.3d at 385–86.

       We are sympathetic to Watkins’s frustration with the limits of § 3582(c)(2). As the

Second Circuit stated in rejecting an argument similar to his, under the guidelines, “[a] criminal

history category that exaggerates a defendant’s past crimes during an initial sentencing will

continue to do so at a reduction proceeding.” United States v. Montanez, 717 F.3d 287, 294 (2d

Cir. 2013). And broadly restricting relief to those who did not receive below-guideline terms of

imprisonment to begin with can limit the number of defendants for whom § 3582(c)(2) hastens

release. Nonetheless, the statute’s limits are clear. District courts must calculate the applicable

guideline range for purposes of §1B1.10 before considering a departure.

       We therefore AFFIRM the district court’s order.




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