               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0405n.06

                                       Case No. 13-5298
                                                                                    FILED
                         UNITED STATES COURT OF APPEALS                        Jun 06, 2014
                              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
ZACHARY TAYLOR MAYES,                               )     KENTUCKY
                                                    )
       Defendant-Appellant.                         )
                                                    )
                                                    )


       BEFORE: MERRITT, COOK, and STRANCH, Circuit Judges.

       PER CURIAM. Defendant-Appellant Zachary Mayes appeals the district court’s denial

of a sentence reduction under 18 U.S.C. § 3582(c)(2). Discerning no error, we affirm.

                                               I.

       Mayes pleaded guilty to conspiracy to possess with the intent to distribute more than

50 grams of crack cocaine in violation of 21 U.S.C. §§ 841 and 846. Seeking to avoid a life

sentence under 21 U.S.C. § 851 because of his two prior felony drug convictions, he entered into

a binding Rule 11(c)(1)(C) plea agreement that stated “a sentence of 10 years[’] imprisonment

. . . is the appropriate disposition of this case.” In the event that Mayes cooperated with law

enforcement, the government would “consider making a [downward departure] motion pursuant

to § 5K1.1 of the Sentencing Guidelines.” Soon afterward, Mayes sought to change his plea in
Case No. 13-5298, United States v. Mayes


light of the more lenient statutory minimums in the Fair Sentencing Act (FSA), but the district

court denied the request on the basis that it had no authority to apply the FSA retroactively.


       At sentencing, the government moved for the § 5K1.1 downward departure, asking the

court to sentence Mayes to 96 months’ imprisonment. The district court granted the motion,

accepted the plea agreement, and sentenced Mayes accordingly. After sentencing, the Supreme

Court held that the FSA’s more lenient statutory minimums apply to offenders, like Mayes,

whose offenses occurred pre-FSA but received post-FSA sentences. Dorsey v. United States,

132 S. Ct. 2321, 2326 (2012).


       Mayes now seeks to benefit from the FSA’s 5-year statutory minimum through

§ 3582(c)(2). The district court held that it lacked authority to reduce the sentence because it

applied the guidelines as amended by the FSA at sentencing. The court also explained that it had

“no jurisdiction to reduce a sentence . . . when only a mandatory minimum [has] changed.” In

any event, it continued to “believe[] the original sentence of 96 months is sufficient but not

greater than necessary to satisfy the purposes of sentencing.”


                                                 II.


       When a district court deems a defendant ineligible for a sentence reduction, we review de

novo. United States v. McClain, 691 F.3d 774, 777 (6th Cir. 2012). “A district court may

modify a defendant’s sentence only as provided by statute.” United States v. Williams, 607 F.3d

1123, 1125 (6th Cir. 2010) (citation omitted). Section 3582(c)(2) provides a “limited adjustment

to an otherwise final sentence.” Dillon v. United States, 560 U.S. 817, 826 (2010). It applies

only to sentences “based on a sentencing range that has subsequently been lowered by the



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Case No. 13-5298, United States v. Mayes


Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see also United States v. Blewett, 746 F.3d

647, 656-58 (6th Cir. 2013) (en banc).


       Although it may have been based on erroneous assumptions, a binding Rule 11(c)(1)(C)

plea agreement and the government’s downward departure motion dictated Mayes’s sentence.

See Fed. R. Crim. P. 11(c)(1)(C). Assuming that the district court relied on Mayes’s sentencing

range, Mayes cannot qualify for a § 3582(c)(2) reduction because his sentencing range has not

“subsequently been lowered by the Sentencing Commission.”            No guidelines amendment

affected Mayes’s sentence because the district court used the FSA guideline amendments in

Mayes’s original guideline computation. See United States v. Passmore, 503 F. App’x 340, 341

(6th Cir. 2012) (per curiam) (holding that district court lacked authority for sentence reduction

when no retroactive amendment affected the defendant’s sentence); United States v. Hammond,

712 F.3d 333, 335 (6th Cir. 2013) (per curiam) (stating that when modifying a sentence, the court

“should substitute only the retroactive amendment”).


       To the extent that the sentencing court relied on a substantial assistance departure from a

statutory minimum, Mayes presses that U.S.S.G. § 5G1.1(b) rendered his statutory minimum

sentence a guidelines sentence because the minimum exceeded the otherwise applicable range,

and so the FSA’s reduction of his statutory minimum qualifies him for § 3582(c)(2) relief. But a

defendant sentenced below a statutory minimum due to a substantial assistance is still subject to

a statutory minimum. See United States v. Taylor, --- F.3d ---, No. 12-3730, 2014 WL 1499881,

at *4 (6th Cir. Apr. 18, 2014). And because Congress, not the Sentencing Commission, lowered

the mandatory minimum, Mayes cannot qualify for § 3582(c)(2)’s “limited adjustment,” Dillon,

560 U.S. at 826; that extends only to sentences “based on a sentencing range that has



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subsequently been lowered by the Sentencing Commission.”         18 U.S.C. § 3582(c)(2); see

Blewett, 746 F.3d at 656-58; Passmore, 503 F. App’x at 341–42.


                                             III.


       We AFFIRM.




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Case No. 13-5298, United States v. Mayes


       JANE B. STRANCH, concurring. I concur in the judgment but write separately to note

that in my view, the government waives a statutory minimum by filing a substantial assistance

motion. See also United States v. Taylor, -- F.3d --, 2014 WL 1499881, at *9 (6th Cir. Apr. 18,

2014) (Donald, J., dissenting); United States v. Doe, 731 F.3d 518, 528 (6th Cir. 2013) (Cole, J.,

concurring in part and concurring in the judgment). If not for our case law to the contrary, see

Taylor, 2014 WL 1499881, at *4, I would hold that Mayes was sentenced pursuant to a

guidelines sentence that the sentencing court calculated to be 120 months and that this “range”

has been lowered. I join the majority opinion because I am bound to apply our current case law

until the Supreme Court, Congress, or the Sentencing Commission corrects it.




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Case No. 13-5298, United States v. Mayes


       MERRITT, Circuit Judge, dissenting. This case involves only a few ounces of crack

cocaine. Congress drastically cut sentences in such cases in the Fair Sentencing Act finding that

the old sentences were irrational and racially discriminatory.

       The majority seems to recognize that the defendant Mayes was sentenced after the Fair

Sentencing Act went into effect, not before, but they give no effect to this crucial fact. Post-Act

sentencing should mean that under Dorsey v. United States, 132 S. Ct. 2321 (2012), Mayes

should be given the benefit of the new, reduced crack penalties reduced from the penalties of the

previous law, which was based on the old, unsupportable 100-to-1 ratio with powdered cocaine.

Yet the majority simply refuses to give Mayes the benefit of the greatly reduced mandatory

minimum crack sentences and the reduced offense levels under the new law. It allows his

sentence to be constructed and then reduced for substantial assistance based only on the old

mandatory minimum of 10 years rather than the 5-year mandatory minimum now applicable. If

his substantial assistance reduction is based on the new minimum, Mayes could potentially avoid

incarceration for several years.

       The majority seems to believe that the case of United States v. Taylor, ____ F.3d ____

(2014), WL1499881 (6th Cir.), prevents the reduction; but that case is not in point because the

defendant was sentenced in 2004 long before the non-retroactive Fair Sentencing Act went into

effect. Thus the defendant there remained subject to the old mandatory minimum and could not

get the benefit of the new more lenient minimum. The defendant in Taylor case is irrelevant to

this case where sentencing occurred after, not before, the Fair Sentencing Act went into effect.

The humane purpose of the new Act is clear, and Mayes should get the benefit of it. Taylor may

not unless the Act is made retroactive.




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Case No. 13-5298, United States v. Mayes


       The majority cites Freeman v. United States, 131 S. Ct. 2685 (2011), as somehow

blocking the path to a reduced sentence under the terms of the new Act. But Freeman seems

clearly to support Mayes’ position that the old 10-year minimum instead of the new 5-year

minimum was erroneously used as a part of the “analytical framework used to determine the

sentence.” Freeman says:

       § 3582(c)(2) modification proceedings should be available to permit the district
       court to revisit a prior sentence to whatever extent the sentencing range in
       question was a relevant part of the analytic framework the judge used to
       determine the sentence.

131 S. Ct. 2685, 2692-93 (2011) (emphasis added). The 10-year minimum rather than

the 5-year minimum was a main part of the “analytical framework the judge used to

determine the sentence,” but it was a mistake. Congress had reduced it because it found

that the old minimums were unjustly harsh.

       To the extent that the majority is contending that the 5-year reduced sentence is

not applicable because it was adopted by Congress and did not originate with the

Sentencing Commission, this is a legalism that should not be allowed to block the path to

a more sane and lenient crack cocaine sentence, as intended by the new Act. It is no

secret that the new Act was enacted to effectuate a new policy through guideline

sentencing.   Moreover, the Guidelines themselves in § 5G1.1(b) say explicitly and

without qualification that the new statutory minimum “shall be the guideline sentence.”

Congress knew this and expected the change to be implemented by the Commission and

the courts through guideline sentencing.

       The Fair Sentencing Act was designed to change the long, unjust crack sentences

previously imposed. We should keep our eye on the ball and carry out that purpose. We


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Case No. 13-5298, United States v. Mayes


should not search for or be distracted by legalisms and road blocks that defeat that

humane purpose and continue the old excessive penalties in place.




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