                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3229
                                    ___________

United States of America,            *
                                     *
          Plaintiff - Appellee,      *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * District of Minnesota.
Quincy Demond Tolliver,              *
                                     *
          Defendant - Appellant.     *
                                ___________

                              Submitted: June 10, 2009
                                 Filed: July 7, 2009
                                  ___________

Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Quincy Demond Tolliver pled guilty to a conspiracy drug offense involving
distribution of cocaine base (crack). The district court1 sentenced Tolliver as a career
offender to 262 months in prison, but later granted Tolliver habeas relief and imposed
a 188 month sentence. When Tolliver moved for a sentence reduction pursuant to 18
U.S.C. § 3582(c)(2) based on Amendment 706 to the sentencing guidelines, the
district court denied the motion. Tolliver appeals, and we affirm.


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
       In March 1998 Tolliver pled guilty to conspiracy to distribute and to possess
with intent to distribute in excess of 269 grams of crack cocaine, in violation of 21
U.S.C. §§ 841(b)(1)(A), 846. The guilty plea was entered pursuant to a written plea
agreement, by which the parties agreed Tolliver was responsible for 269 grams of
crack cocaine, the base offense level was 34, and his criminal history category was VI.
The parties anticipated that after a 3 point reduction for acceptance of responsibility,
Tolliver’s guideline range would be 188-235 months in prison. The government
agreed not to oppose Tolliver’s request to be sentenced at the bottom of the “correctly
determined sentencing range.”

       In the presentence report the probation officer determined that Tolliver qualified
as a career offender under U.S.S.G. § 4B1.1, resulting in a total offense level of 34,
a criminal history category VI, and a resulting guideline imprisonment range of 262-
327 months. Tolliver moved for a downward departure. The government opposed
any departure based on the overstatement of Tolliver’s criminal history under
U.S.S.G. § 4A1.3, but stated that it might be appropriate to sentence Tolliver as
contemplated by the plea agreement, citing the other grounds for departure under
U.S.S.G. § 5K2.0. At sentencing the district court found Tolliver to be a career
offender, declined to grant a downward departure, and sentenced him to 262 months
in prison.

       After several failed efforts to appeal his sentence, Tolliver filed a pro se 28
U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Tolliver was
subsequently appointed counsel who filed a motion for resentencing, a motion to
amend the § 2255 motion, and a motion for downward departure pursuant to U.S.S.G.
§ 5K2.0. The government responded that it would not oppose a resentencing on a
limited basis. The parties signed a stipulation agreement which stated that if the
district court would grant the § 2255 motion and resentence Tolliver to 188 months
in prison “as originally contemplated,” then Tolliver would withdraw his motion to
amend.

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       The district court granted Tolliver’s § 2255 motion, noting that “[b]ased upon
a stipulation between the parties” Tolliver’s sentence is amended to 188 months “as
originally contemplated in the plea agreement.” In the amended criminal judgment,
the court again determined Tolliver’s guideline range to be 262-327 months but
sentenced him outside the guideline range to 188 months, reasoning that the sentence
was “pursuant to the stipulation signed by counsel.”

       After the passage of Amendment 706, which generally lowered the base offense
level for crack offenses by two levels, Tolliver moved to reduce his sentence pursuant
to 18 U.S.C. § 3582(c)(2). Tolliver argued that his 188 month sentence “was based
not on the career offender adjustment but on the now amended [U.S.S.G.] § 2D1.1
drug table.” The district court denied Tolliver’s motion, stating that Tolliver was not
eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) because the amended
guidelines did not change Tolliver’s status as a career offender. The court noted that
Tolliver’s 188 month sentence “was based on a stipulation between the parties, and
not on a change to the offense level.”

       On appeal Tolliver argues that the district court erred in denying his motion for
a sentence reduction because the 188 month sentence imposed had “no relationship
to the career offender guidelines” but was based on the low end of his sentencing
range which was “calculated by implementation of the drug quantity tables, as settled
by the parties in the original plea agreement and a second time during negotiations
over the post-conviction relief petition.” The government argues that the district court
did not err in concluding Tolliver, as a career offender, was ineligible for a reduced
sentence under 18 U.S.C. § 3582(c)(2) because Amendment 706 did not lower his
“applicable guideline range.” Alternatively the government contends that a sentence
reduction was not warranted because the district court sentenced Tolliver in
accordance with the parties’ stipulation and not a post-departure guideline range.




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       We review de novo the district court’s authority to modify a sentence under 18
U.S.C. § 3582(c)(2). United States v. Baylor, 556 F.3d 672, 673 (8th Cir. 2009) (per
curiam); see also United States v. Williams, 551 F.3d 182, 185 (2d Cir. 2009)
(statutory interpretation is underpinning of district court’s finding that defendant was
not eligible for sentence reduction under § 3582(c)(2)); United States v. Caraballo,
552 F.3d 6, 9 (1st Cir. 2008) (whether district court had authority to act under
§ 3582(c)(2) “is purely a question of statutory interpretation”), cert. denied, 129 S. Ct.
1929 (2009).

      Section 3582(c)(2) provides that a district court may reduce a defendant’s term
of imprisonment if that sentence was “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission . . . if such a reduction is
consistent with applicable policy statements issued by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2). According to the relevant policy statement, a reduction is not
authorized where the amendment in question, in this case Amendment 706, “does not
have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G.
§ 1B1.10(a)(2)(B).

       The government argues that the district court’s determination that Tolliver was
a career offender under the guidelines precludes his eligibility for a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2). See United States v. Tingle, 524 F.3d 839, 840
(8th Cir.) (applicable guideline range for career offenders was not lowered by 706)
(per curiam), cert. denied, 129 S. Ct. 473 (2008). Specifically the government
contends that under the application instructions of the guidelines, see U.S.S.G.
§ 1B1.1, the district court’s departure from Tolliver’s career offender guideline range
is categorically outside the “applicable guideline range.” We agree.

      “The Sentencing Commission directs courts to apply the guidelines provisions
in a specific order.” United States v. Doe, 564 F.3d 305, 311 (3d Cir. 2009).
Generally a sentencing court must determine the guideline range in Part A of Chapter

                                           -4-
5 by first calculating the base offense level under Chapter 2, then adjusting that level
for various factors listed in Chapter 3, and then determining the criminal history
category under Part A of Chapter 4 and any adjustments under Part B of Chapter 4,
such as the enhanced offense levels for career offenders pursuant to U.S.S.G. § 4B1.1.
U.S.S.G. § 1B1.1(a)-(g).

       The penultimate step in applying the guidelines, U.S.S.G. § 1B1.1(h), instructs
the district court to determine the sentencing requirements and options for the
particular guideline range under Parts B through G of Chapter 5. It is at this step
where the government argues that Tolliver’s “applicable guideline range” for purposes
of § 1B1.10(a)(2)(B) had been established. For support the government points to
several guideline provisions that acknowledge the “applicable guideline range” at this
step. See U.S.S.G. §§ 5B1.1(a) (probation term is authorized if “applicable guideline
range” is in Zone A of sentencing table or Zone B with certain restrictions), 5C1.1(d)
(term of imprisonment required if “applicable guideline range is in Zone C”),
5G1.1(b) (“Where 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.”); cf. Doe, 564 F.3d at 311 (calculation of
statutory mandatory minimum under § 5G1.1(b), not that of initial guideline range
under § 5A, was “final step” in determining defendants’ applicable guideline ranges).

       After determining the “applicable guideline range,” the final step in applying
the guidelines, U.S.S.G. § 1B1.1(i), is the district court’s determination of whether any
departures are warranted. See U.S.S.G. § 1B1.1, comment. (n.1(E)) (defining
“departure” as “imposition of a sentence outside the applicable guideline range or of
a sentence that is otherwise different from the guideline sentence”); Stinson v. United
States, 508 U.S. 36, 38 (1993) (guideline commentary interpreting or explaining
guideline “is authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline”). The government
further bolsters its argument that Tolliver’s “applicable guideline range” had been

                                           -5-
determined before the district court’s decision to depart by pointing to U.S.S.G.
§ 5K2.0 which lists several other grounds that warrant departure “from the applicable
guideline range.” See U.S.S.G. § 5K2.0(a)-(e).

       We are persuaded that in reference to the application instructions set forth in
U.S.S.G. § 1B1.1, Tolliver’s “applicable guideline range,” for the purposes of
U.S.S.G. § 1B1.10(a)(2)(B), was established after the district court determined that
Tolliver’s corresponding guideline range as a career offender was 262-327 months,
but before the court departed from that range. It follows that a district court’s proper
adherence to the application instructions will only permit a departure from the
“applicable guideline range,” and thus precludes a departure to the “applicable
guideline range.” Accordingly, we conclude that any post-departure guideline range
that the district court might have relied upon in determining the extent of Tolliver’s
departure was not the “applicable guideline range.” Cf. Caraballo, 552 F.3d at 11
(“Under an advisory guidelines system, a variance is granted in the sentencing court’s
discretion after the court has established an appropriately calculated guideline
sentencing range. It is that sentencing range that must be lowered by an amendment
in order to engage the gears of section 3582(c)(2).” (emphasis in original; internal
citation omitted)).

       We recognize that our conclusion conflicts with the Second Circuit’s recent
decision in United States v. McGee, 553 F.3d 225 (2d Cir. 2009) (per curiam), that
held that a defendant, who was designated a career offender at sentencing, but was
granted a departure under U.S.S.G. § 4A1.3 so that his ultimate sentence was
explicitly based on the crack cocaine guidelines, is eligible for a sentence reduction
under 18 U.S.C. § 3582(c)(2). Id. at 227-28 (noting that § 1B1.10(a)(2)(B) “is subject
to different interpretations” and should not be read to preclude possibility that
defendant who was, even if by virtue of departure, sentenced based on crack
guidelines would be eligible for reduction; “different reading would lend itself to
excessive formalism”). In McGee, however, the Second Circuit did not conduct an

                                          -6-
analysis of the application instructions set forth in U.S.S.G. § 1B1.1, which, as we
determine, effectively define all departures to be outside the “applicable guideline
range.”

       Because Tolliver’s “applicable guideline range” was his career offender range
and that range has not been lowered by Amendment 706, we conclude that Tolliver
was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). See U.S.S.G.
§ 1B1.10, comment. (n.1(A)) (eligibility for consideration under § 3582(c)(2) is
triggered only by amendment that lowers applicable guideline range). Accordingly,
the district court lacked the authority to reduce Tolliver’s prison sentence and did not
err in denying Tolliver’s motion.

       In any event, we also conclude that the district court did not err in denying
Tolliver’s motion for a sentence reduction because Tolliver’s sentence was explicitly
based on a stipulation between the parties, and not on “a sentencing range that ha[d]
subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2);
cf. United States v. Keith, No. 08-3439, 2009 WL 1783764, at *4 (3d Cir. June 24,
2009) (court was without authority to modify sentence where parties’ Fed. R. Crim.
P. 11(c)(1)(C) plea agreement was only basis for sentence). We find unavailing
Tolliver’s assertion, even if true, that during the negotiations to resolve his § 2255
motion by a stipulation agreement, the parties considered the crack cocaine guidelines
in determining a 188 month sentence was appropriate.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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