                         PRECEDENTIAL


UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT

           ___________

    Nos. 11-4359/11-4494/12-1034
            ___________

  UNITED STATES OF AMERICA

                 v.

    ALBERT SAVANI, aka Pops,

                  Appellant in No. 11-4359.



  UNITED STATES OF AMERICA

                 v.

   SEAN HERBERT, a/k/a Bounty

                      SEAN HERBERT,

                  Appellant in No. 11-4494.
         UNITED STATES OF AMERICA

                          v.

                  RICHARD ROE,

                           Appellant in No. 12-1034.

          ___________________________

   On Appeal from the United States District Court
  for the Middle District and the Eastern District of
                 Pennsylvania
 (D. C. Nos. 3-07-cr-00393-001; 3-06-cr-00283-001;
                 2-07-cr-00283-001)
  District Judges: Honorable Michael M. Baylson,
          Honorable Thomas I. Vanaskie and
             Honorable James M. Munley
          ____________________________

              Argued on July 12, 2012

Before: FUENTES, HARDIMAN and ROTH, Circuit
                Judges

      (Opinion filed: May 7, 2013)


James V. Wade, Esquire
Federal Public Defender
Middle District of Pennsylvania
Frederick W. Ulrich, Esquire




                      2
Assistant Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101

             Counsel for Appellants Albert Savani
             and Sean Herbert

Sarah S. Gannett, Esquire (Argued)
Assistant Federal Defender
Christy Unger, Esquire
Brett G. Sweitzer, Esquire
Assistant Federal Defender
Supervising Appellate Attorney
Leigh M. Skipper, Esquire
Chief Federal Defender
Federal Community Defender Office
Eastern District of Pennsylvania
Suite 540 West – Curtis Center
601 Walnut Street
Philadelphia, PA 19106

             Counsel for Appellant Richard Roe


Bernadette A. McKeon, Esquire
Kathy A. Stark, Esquire
Robert A. Zauzmer, Esquire (Argued)
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

             Counsel for Appellee




                      3
                           ____________

                           OPINION
                           ____________


ROTH, Circuit Judge:

       The question presented in this consolidated appeal is
whether appellants, Albert Savani, Sean Herbert, and Richard
Roe,1 are eligible for reductions of their sentences pursuant to
18 U.S.C. § 3582(c)(2). In each case, the appellant was
convicted of a cocaine base (crack) related offense, the
government moved for a downward departure due to the
appellant’s substantial assistance, and the District Court
granted the departure and sentenced the defendant below the
statutory mandatory minimum. Shortly thereafter,
the Fair Sentencing Act of 2010 (FSA) became law, and the
United States Sentencing Commission approved Amendment
750, a retroactive amendment, which lowered the base
offense levels applicable to crack cocaine offenses. In light
of Amendment 750, appellants moved to further reduce their
sentences.

       Despite the government’s willingness at the time of the
original sentencing to have appellants sentenced below the
mandatory minimum sentence, the government opposed the
FSA motions in each case on the basis that the original


1
  On February 27, 2012, Roe filed an unopposed motion to
proceed under pseudonym, which we will grant.




                               4
sentences were governed by the mandatory minimums. The
government contends that in this situation, in which the
guidelines range is below the statutory mandatory minimum
sentence, the mandatory minimum is defined as the
―guideline sentence.‖ Although the qualifying amount of
cocaine base necessary to trigger the mandatory minimum
sentence has now been increased, the government asserts
nevertheless that the duration of the statutorily required
minimum sentence, the ―guideline sentence,‖ has not been
changed; thus, the appellants are still subject to the mandatory
minimum sentence. The district courts denied the motions on
this basis.

        On appeal, appellants contend that the district courts
erred in denying their motions because (1) their terms of
imprisonment were, at least in part, based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission and (2) a sentence reduction is consistent with
the applicable policy statements issued by the Sentencing
Commission. With respect to the latter, appellants assert that
this Court’s interpretation in United States v. Doe, 564 F.3d
305 (3d Cir. 2009), of the term ―applicable guideline range‖
is superseded by the Sentencing Commission’s November
2011 revisions to the Guidelines, which included, for the first
time, a definition of the phrase ―applicable guideline range.‖
For the reasons set forth below, we agree that Doe has been
superseded. We conclude that defendants, who are convicted
of crack cocaine offenses and whose original sentences were
below the mandatory minimum applicable to them because of
substantial assistance to the government, are not barred for
policy reasons from seeking a reduction of sentence pursuant
to § 3582(c)(2). We will, therefore, vacate the orders of the
district courts and remand these cases for further proceedings.




                               5
I. Background

       The facts regarding Savani, Herbert, and Roe are
essentially similar.

      A. Albert Savani

       In May 2008, Savani entered into a cooperation plea
agreement with the government and pled guilty to one count
of conspiracy to distribute, and to possess with intent to
distribute, more than 50 grams of crack cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. At that
time, the base offense level dictated by the crack cocaine
guideline for this conviction was 30. See U.S.S.G. § 2D1.1(c)
(Nov. 2007). Savani received a two-level reduction for his
minor role in the offense and a three level reduction for
acceptance of responsibility, yielding a total adjusted offense
level of 25. Based upon his total offense level of 25 and a
criminal history category of II, Savani’s initial guideline
sentencing range was 63-78 months of imprisonment. See
U.S.S.G. § 5A. However, because of the amount of crack
cocaine involved in the offense, Savani was subject to a ten-
year mandatory minimum sentence, pursuant to 21 U.S.C.
§ 841(a)(1)(A). See U.S.S.G. § 1B1.1(h) (Nov. 2007).
Therefore, his guideline sentence was deemed to be 120
months. 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
minimum sentence shall be the guideline sentence.‖).

      The plea agreement also provided that, if Savani
provided substantial assistance to the government, the
government might request the court to depart below the




                              6
applicable mandatory minimum, the applicable guideline
range, or both, when imposing his sentence. At Savani’s
sentencing, the government moved, pursuant to 18 U.S.C.
§ 3553(e) and U.S.S.G. § 5k1.1, for the court to depart from
the mandatory minimum and to impose a sentence within the
Sentencing Guidelines range of 63 to 78 months’
imprisonment. The District Court not only granted the
motion to depart, it departed further than the government had
requested and imposed a sentence of 46 months, which was
below the mandatory minimum.

       Savani died on January 29, 2013.

       B. Sean Herbert

       In January 2008, Herbert entered into a cooperation
plea agreement with the government and pled guilty to one
count of possession with intent to distribute in excess of 50
grams of crack cocaine and powder cocaine, in violation of §§
841(a)(1) and 841(b)(1)(A). In the plea agreement, the
parties agreed that Herbert was involved in the distribution of
more than 50 and less than 150 grams of crack cocaine and
more than 300 grams and less than 400 grams of powder
cocaine. They also agreed that a sentence within the
applicable range of the Sentencing Guidelines would be a
reasonable sentence. At that time, the base offense level
dictated by the crack cocaine guideline for Herbert’s
conviction was 30. See § 2D1.1(c) (Nov. 2007). After
receiving a three level downward adjustment, his total
adjusted offense level was 27. Based upon this total offense
level and his criminal history category of III, Herbert’s initial
guideline sentencing range was 87-108 months of
imprisonment. See § 5A. However, because of the amount of




                               7
crack cocaine involved in the offense, Herbert was subject to
a ten-year mandatory minimum, under § 841(a)(1)(A). See §
1B1.1(h) (Nov. 2007). Therefore, the guideline sentence was
deemed to be the 120 months mandatory minimum. See §
5G1.1(b).

      The plea agreement also provided that if Herbert
provided substantial assistance to the government, the
government might request a departure below the statutory
mandatory minimum and/or the guideline range. At Herbert’s
June 2008 sentencing, the government moved, pursuant to §
3553(e) and U.S.S.G. § 5k1.1, for the court to depart below
the applicable mandatory minimum to impose a sentence of
110 months. The District Court granted the motion and, after
considering additional factors, sentenced Herbert to 98
months of incarceration.

      C. Richard Roe

        In April 2008, Roe entered into a cooperation plea
agreement with the government and pled guilty to two counts
of distribution of five grams or more of crack cocaine and two
counts of distribution of 50 grams or more of crack cocaine,
all in violation of § 841(a)(1). As part of the plea agreement,
he stipulated that his offense involved 189.6 grams of crack
cocaine. At that time, the base offense level for that amount
of crack cocaine was 32, see § 2D1.1(c) (Nov. 2007); Roe
then received a three-level reduction for acceptance of
responsibility, yielding a final offense level of 29. With this
offense level and his criminal history category of V, Roe’s
initial guideline sentencing range was 140-175 months’
imprisonment. See § 5A. However, due to a prior drug
conviction, Roe was subject to a statutory mandatory




                              8
minimum sentence of 240 months.        See 21 U.S.C.
§ 841(b)(1)(B); § 1B1.1(h) (Nov. 2007).    Because the
mandatory minimum sentence exceeded the initial guideline
sentencing range, the mandatory minimum became the
guideline sentence. See § 5G1.1.

       Roe’s plea agreement also contained a provision that if
he provided substantial assistance to the government, it might
move for a sentence below the statutory mandatory minimum.
At Roe’s April 2008 sentencing, the government moved
under § 5K1.1 and § 3553(e) for a reduction of Roe’s
sentence. The District Court granted the government’s
motion and sentenced Roe to 96 months’ imprisonment.

      D. Fair Sentencing Act of 2010

       On August 3, 2010, after appellants’ sentencings, the
FSA became law. Designed as ―[a]n Act To restore fairness
to Federal cocaine sentencing,‖ United States v. Dixon, 648
F.3d 195, 197 (3d Cir. 2011) (quoting Fair Sentencing Act of
2010, Pub. L. 111–220, § 2, 124 Stat. 2372, 2372 (2010)), one
provision of the FSA modified the mandatory minimum crack
cocaine penalties by raising the quantities required to trigger
the five-year and ten-year mandatory minimum penalties, id.
(citing Pub. L. 111–220, § 2). These changes reduced the
disparity in triggering quantity between powder cocaine and
crack cocaine from 100:1 to approximately 18:1. Id.

      The FSA also directed the Sentencing Commission to
promulgate emergency amendments to conform the
Sentencing Guidelines to the statutory changes. Id. (citing
Pub. L. No. 111-220, § 8). The Sentencing Commission
complied with this directive by issuing temporary emergency




                              9
guideline amendments in 2010, see id. at 197-98 (citing
U.S.S.G. Supp. to App. C, amend. 748 (Supp. 2010)
(amending U.S.S.G. § 2D1.1(c)) (effective Nov. 1, 2010)),
which became permanent and retroactively applicable on
November 1, 2011, see U.S.S.G., App. C., amends. 750, 759.
One of these, Amendment 750, amended U.S.S.G. § 2D1.1,
reducing by the same 18:1 ratio the amount of crack cocaine
necessary to trigger the mandatory minimums. See U.S.S.G.,
App. C., amend. 750.

       Based upon Amendment 750, appellants filed motions
for reduction of sentence pursuant to § 3582(c)(2). In all
three cases, the district courts denied the motions.2 These
appeals followed.

II. Jurisdiction

      The district courts had jurisdiction pursuant to 28
U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291,
and our review is plenary. Doe, 564 F.3d at 307 n.2.

III. Discussion

      Congress has generally prohibited district courts from
―modify[ing] a term of imprisonment once it has been
imposed.‖ 18 U.S.C. § 3582(c). Section 3582(c)(2),


2
    In Savani and Herbert, the district courts denied the
motions without explanation. In Roe, the court applied §
3582(c)(2) and concluded that a sentencing reduction would
not be consistent with the applicable policy statements issued
by the Sentencing Commission.




                             10
however, offers a limited exception to this general rule of
finality:

          [I]n the case of a defendant who has been
          sentenced to a term of imprisonment based on a
          sentencing range that has subsequently been
          lowered by the Sentencing Commission
          pursuant to 28 U.S.C. 994(o), upon motion of
          the defendant . . . the court may reduce the term
          of imprisonment, . . . if such a reduction is
          consistent with applicable policy statements
          issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

       In United States v. Flemming, 617 F.3d 252, 257 (3d
Cir. 2010), we interpreted this provision to provide that if a
defendant fails to satisfy either of these conditions, a
sentencing range lowered by the Sentencing Commission or a
reduction consistent with the applicable policy statements, the
court cannot consider a sentence reduction. Id. On the other
hand, if the defendant satisfies both requirements, the district
court may exercise its discretion to determine whether a
reduction of sentence is merited. Id.

       In considering whether appellants are eligible for a
reduction of sentence, we turn first to the second condition
because that is the condition which we held in Doe prevented
offenders, who were subject to a mandatory minimum
sentence, from seeking relief under the FSA.

      Doe also involved offenders who had been sentenced
below the mandatory minimum. John and Jane Doe were




                              11
sentenced respectively to 84 and 41 months’ imprisonment.
Doe, 564 F.3d at 307-08. Their sentences reflected a
downward departure, pursuant to 18 U.S.C. § 3553(e) and
U.S.S.G. § 5K1.1, from their statutory mandatory minimum
sentences of life imprisonment for John and 20 years for Jane.
Their mandatory minimums exceeded their initial guideline
sentencing ranges of 151-188 months imprisonment for John
and 121-151 months for Jane. Doe, 564 F.3d at 307-08.
After the Does were sentenced, the Sentencing Commission
promulgated Amendment 706, a retroactive amendment,
which revised § 2D1.1 by lowering the base offense levels for
most quantities of crack cocaine. Id. at 308. The Does then
filed motions for sentencing reductions under § 3582(c)(2),
id., contending that they were eligible for resentencing
because Amendment 706 lowered their ―applicable guideline
ranges,‖3 id. at 311.

       Because at that time the Sentencing Guidelines failed
to contain a definition of the phrase ―applicable guideline
range,‖ the Doe Court examined the Application Instructions
contained in U.S.S.G. § 1B1.1 for guidance. Based upon its
interpretation of these instructions, the Court reasoned that
the Guidelines ―language and structure‖ established that the


3
  The term ―applicable guideline range‖ appears in U.S.S.G.
§ 1B1.10, Reduction of Term of Imprisonment as a Result of
Amended Guideline Range (Policy Statement), which
provides for the reduction of sentences pursuant to §
3582(c)(2). One exclusion barring such a reduction occurs if
the amendment does not have the effect of lowering the
defendant’s ―applicable guideline range.‖ § 1B1.10(2)(B).




                             12
term ―applicable guideline range‖ in § 1B1.10(a)(2)(B)
referred to the sentence calculated under § 5G1.1(b). Id. at
311. In that regard, the Court noted that the Application
Instructions for the Guidelines specified that they must be
applied in a particular order, see U.S.S.G. § 1B1.1 (Nov.
2007), with the eighth and last step in the procedure being the
calculation of all statutory mandatory minimums under §
5G1.1(b). Therefore, although the crack cocaine offense level
along with the criminal history category guideline determined
the initial guideline sentencing range, it was not the
―applicable guideline range‖ because the mandatory
minimum sentence replaced it and served as the basis for
calculating the defendant’s final pre-departure sentence.4 See
Doe, 564 F.3d at 311. In other words, the Doe Court
concluded that ―applicable guideline range‖ referred to the
guideline sentence determined by the statutory mandatory
minimum, which was the end product under § 1B1.1(a).
Flemming, 617 F.3d at 262.

       It is not disputed that this interpretation of ―applicable
guideline range‖ leaves appellants ineligible for relief.
However, the situation has changed. Since our Doe opinion,
the definition of ―applicable guideline range‖ has been added
to the guidelines by the retroactive November 2011
amendment which revised Application Note 1(A) to the


4
    In a concurring opinion Judge Fuentes noted that the
language of § 1B1.10 ―barely favors the majority’s
interpretation‖ and that ―further guidance from the Sentencing
Commission‖ on the meaning of the term ―applicable
guideline range‖ would be beneficial. Doe, 564 F.3d at 318
(Fuentes, J., concurring).




                               13
commentary of § 1B1.10.            According to the revised
commentary, the ―applicable guideline range‖ is ―the
guideline range that corresponds to the offense level and
criminal history category determined pursuant to § 1B1.1(a),
which is determined before consideration of any departure
provision in the Guidelines Manual or any variance.‖
U.S.S.G. § 1B1.10 cmt. n.1(A) (2011). Appellants contend
that the Sentencing Commission intended this definition to
supersede Doe and to clarify that ―applicable guideline range‖
refers to the initial guideline range as determined by the
intersection of the offense level and criminal history category
under § 5A. The government, on the other hand, argues that
the newly provided definition supports the Doe Court’s
interpretation of ―applicable guideline range.‖

       Although we, as a three-judge panel, are generally
bound by prior decisions of this Court, we ―may reevaluate a
precedent in light of intervening authority and amendments to
statutes or regulations.‖ Reich v. D.M. Sabia Co., 90 F.3d
854, 858 (3d Cir. 1996) (citing United States v. Joshua, 976
F.2d 844, 853 (3d Cir. 1992) (holding that a panel is ―free to
consider the [Sentencing] Commission’s [newly adopted
interpretive] commentary and, based thereon, reach a decision
contrary to the holdings of [prior precedent]‖)). Thus, in light
of the Commission’s amendments, we will revisit the Doe
Court’s prior interpretation of ―applicable guideline range.‖
We will keep in mind that guidelines commentary,
interpreting or explaining the application of a guideline, is
binding on us when we are applying that guideline because
we are obligated to adhere to the Commission’s definition.
See Stinson v. United States, 508 U.S. 36, 43 (1993).
       In support of their position, appellants point out that
the terminology the Commission selected for the description




                              14
of ―applicable guideline range‖ mirrors, in-part, the language
of § 1B1.1(a)(7). Section 1B1.1(a)(7) requires the sentencing
court to calculate a defendant’s initial guideline sentence by
―[d]etermin[ing] the guideline range‖ from the table in § 5A
―that corresponds to the offense level and criminal history
category determined‖ in steps (a)(1)-(a)(6). § 1B1.1(a)(7)
(emphasis added). In Application Note 1(A) of § 1B1.10, the
Sentencing Commission defines ―applicable guideline range‖
as ―the guideline range that corresponds to the offense level
and criminal history category determined pursuant to §
1B1.1(a) . . . .‖ § 1B1.10 cmt. n.1(A) (2011) (emphasis
added).

        We presume that this choice of language by the
Sentencing Commission is deliberate. Appellants contend
that the Sentencing Commission’s choice to incorporate this
language into the new definition of ―applicable guideline
range‖ demonstrates the Commission’s intent to define the
phrase as the initial guidelines sentencing range calculated
under § 5A; if the Commission had not intended such a result,
it would not have utilized this language. Appellants urge that
the sentencing range ascertained at § 1B1.1(a)(7) is the result
of the culmination of steps § 1B1.1(a)(1)-(a)(6), i.e., that the
steps of § 1B1.1(a)(1)-(a)(6) are the prerequisite steps the
sentencing court must proceed through before it can reach
step § 1B1.1(a)(7) and determine the range associated with
the offense level and criminal history category. Thus, the
definition’s reference to § 1B1.1(a), combined with the
inclusion of terminology that mirrors § 1B1.1(a)(7), indicates
that the Commission intended ―applicable guideline range‖ to
refer to the intersection between the offense level and
criminal history category at § 1B1.1(a)(7), not the sentence




                              15
required by a mandatory minimum as subsequently
determined at step § 1B1.1(a)(8).5

       Although we find appellants’ argument logical,
nonetheless there is ambiguity in the Sentencing
Commission’s new definition of ―applicable guideline range.‖
It is not expressly stated that the Commission intended the
term ―applicable guidelines range‖ as calculated under §
1B1.1(a) to refer only to the steps of § 1B1.1(a)(1)-(a)(7) and
not to include § 1B1.1(a)(8).         Accordingly, a second
interpretation exists, i.e., that a defendant’s ―applicable
guideline range‖ includes all eight steps delineated under §
1B1.1(a), including § 1B1.1(a)(8).         This approach is
supported by the language of the amendment that the
―applicable guideline range‖ is ―determined before
consideration of any departure provision in the Guidelines
Manual or any variance.‖ § 1B1.10 cmt. n.1(A) (2011).
Sections 1B1.1(b) & (c) provide when departure provisions
and variances must be applied.               This competing
interpretation, advocated by the government, assumes that
because the sentencing court must consider all eight steps of §
1B1.1(a) before it applies §§ 1B1.1(b) & (c), a defendant’s
―applicable guideline range‖ cannot be ascertained until all
eight steps of § 1B1.1(a) have been completed.


5
    This reading conforms to the reality of the sentencing
process. A defendant is not assigned a new offense level or
criminal history category by operation of the mandatory
minimum. Rather, the guideline range that is applicable to
that offense level and criminal history category is simply
trumped by the mandatory minimum sentence when the
sentencing court applies step § 1B1.1(a)(8).




                              16
       On the other hand, a reading of ―applicable guideline
range‖ as the range calculated at step § 1B1.1(a)(7) would be
entirely consistent with the Commission’s definition of the
phrase, as long as step § 1B1.1(a)(8) was considered before
applying §§ 1B1.1(b) and (c).

       In the end, we must conclude that the definition of
―applicable guideline range‖ contained in the revised
Application Note 1(A) to the commentary of § 1B1.10 is
ambiguous.     Because the definition provided by the
Sentencing Commission does not by itself resolve the issue,
we will examine other provisions of the Sentencing
Guidelines to determine whether they give us any insight into
the Commission’s definition.

      A. 2011 Historical Notes for § 1B1.10

       The Historical Notes for § 1B1.10 state that the
Commission revised Application Note 1 and defined
―applicable guideline range‖ ―to address an application issue‖
regarding ―when, if at all, the [sentencing] court applies a
departure provision.‖ U.S.S.G. § 1B1.10 Historical Notes
(Reason for Amendment). This need for clarification arose
because of a circuit split. Id. Several Courts of Appeals had
held that sentencing courts might consider some departures
before calculating a defendant’s applicable guideline range;
others had held that the applicable guideline range must be
determined prior to the court’s consideration of any
departures. Id. The Commission resolved this dispute by
amending the commentary and clarifying that the latter
approach was the proper one. Id. This explanation does not,
however, offer any insight into whether the Commission
intended the amendment to refer solely to the intersection




                             17
between the offense level and criminal history category, as
determined by the culmination of steps § 1B1.1(a)(1)-(a)(7),
or to the guideline sentence of a mandatory minimum
determined at step § 1B1.1(a)(8), the final step before
applying § 1B1.1(b) & (c).

        Another concern with the Commission’s explanation
for the revision is the fact that at the time the Commission
defined ―applicable guideline range,‖ it was likely aware that
at least eleven Courts of Appeals had concluded that a
defendant was ineligible for a sentencing reduction in
circumstances in which the statutory mandatory minimum
exceeded the guideline range and the defendant received a
substantial assistance departure below the mandatory
minimum sentence. See, e.g., United States v. Roa-Medina,
607 F.3d 255, 260 (1st Cir. 2010); United States v. Williams,
551 F.3d 182, 186-87 (2d Cir. 2009); Doe, 564 F.3d at 311-
12; United States v. Hood, 556 F.3d 226, 234-35 (4th Cir.
2009); United States v. Carter, 595 F.3d 575, 580-81 (5th Cir.
2010); United States v. Johnson, 564 F.3d 419, 422-23 (6th
Cir. 2009); United States v. Poole, 550 F.3d 676, 679-80 (7th
Cir. 2008); United States v. Baylor, 556 F.3d 672, 673 (8th
Cir. 2009); United States v. Jackson, 577 F.3d 1032, 1034-36
(9th Cir. 2009); United States v. Williams, 549 F.3d 1337,
1339-42 (11th Cir. 2008); United States v. Cook, 594 F.3d
883, 886-89 (D.C. Cir. 2010). If the Commission intended to
overrule these Courts of Appeals, why did it not explicitly say
that it was doing so?

      B. Application Note 3 for § 1B1.10

     In addition to defining ―applicable guideline range,‖
the Commission also revised § 1B1.10 ―to change the




                              18
limitations that apply in cases in which the term of
imprisonment was less than the minimum of the applicable
guideline range at the time of sentencing.‖ U.S.S.G. §
1B1.10 Historical Notes (Reason for Amendment). After the
amendment, a defendant, whose original sentence had been
reduced below the applicable guideline range, could seek §
3582(c)(2) relief only if he had originally been granted the
reduced term as a result of substantial assistance to the
government. See § 1B1.10(b)(2)(B).

      In addition, Application Note 3 provides examples of
how to calculate the reduced sentence under § 3582(c)(2). It
then discusses § 3582(c)(2) sentence reduction when the
defendant’s original sentence was reduced following a
government motion for substantial assistance, and states:

          The provisions authorizing such a government
          motion are 5K1.1 (Substantial Assistance to
          Authorities) (authorizing, upon government
          motion, a downward departure based on the
          defendant’s substantial assistance); 18 U.S.C.
          3553(e) (authorizing the court, upon
          government motion, to impose a sentence below
          a statutory minimum to reflect the defendant’s
          substantial assistance); and Fed. R. Crim. P.
          35(b) (authorizing the court, upon government
          motion, to reduce a sentence to reflect the
          defendant's        substantial      assistance).

U.S.S.G. § 1B1.10 Application Note 3 (2011) (emphasis
added).
        Appearing as it does in a Commentary Section directed
at clarifying the reduction of sentences under § 3582(c)(2),




                             19
this last paragraph appears to contemplate that a defendant
who was sentenced below his applicable mandatory minimum
because he received a § 3553(e) reduction for substantial
assistance, might be eligible for a sentencing reduction. If we
were to hold that the ―applicable guideline range‖ language of
§ 1B1.10(a)(2)(B) rendered such a defendant ineligible for a §
3582(c)(2) reduction, what is the point of the above quoted
language in Application Note 3?

       Another interpretation of this provision, however,
supports the government’s argument. In circumstances in
which the initial guideline range, as determined pursuant to §
1B1.1(a)(7), exceeds the mandatory minimum sentence, and
the government files a motion under § 5K1.1 and § 3553(e),
courts often depart below both the guideline range and the
mandatory minimum when imposing the final sentence.
Accordingly, the Application Note might simply clarify that,
in that scenario, a court may grant a comparable reduction
below the original guideline range but not below the
mandatory minimum.

      C. U.S.S.G. § 5G1.1(b)

       Section 5G1.1 supports Appellants’ reading of
―applicable guideline range‖ as the intersection between the
offense level and criminal history category, as calculated
under § 1B1.1(a)(7). In the sentencing process, after the court
completes its calculation under step § 1B1.1(a)(7), step §
1B1.1(a)(8) directs it to apply, among other provisions,
§ 5G1.1. Section 5G1.1, in turn, refers to the sentence that
has already been calculated under § 1B1.1(a)(7) as ―the
applicable guideline range.‖ U.S.S.G. § 5G1.1(b) (―Where a
statutorily required minimum sentence is greater than the




                              20
maximum of the applicable guideline range, the statutorily
required minimum sentence shall be the guideline sentence.‖
(emphasis added)).     Thus, before the sentencing court
proceeds to complete the step at § 1B1.1(a)(8), the language
of § 5G1.1 provides that the ―applicable guideline range‖ has
already been determined.

      D. Application Note 1(A) to U.S.S.G. § 1B1.10

        The Commentary to § 1B1.10 supports the
government’s argument and adds further ambiguity to the
meaning of ―applicable guideline range.‖ Immediately
preceding the description of ―applicable guideline range,‖ the
commentary states that a sentencing reduction is not
authorized when ―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
imprisonment).‖ § 1B1.10 cmt. n.1(A) (2011). Although
appellants assert that this provision addresses only those
situations in which the imposition of a sentence below the
mandatory minimum range was not due to a substantial
assistance departure, no such distinction is drawn in the
language of the Commentary. In regard to the above, the
District Court observed that it is difficult to imagine what
purpose the statement would serve if a mandatory minimum
sentence was irrelevant to the determination of the applicable
guideline range.

       In sum, we conclude that our review of these
provisions has not helped us ascertain the meaning of the
Commission’s definition of ―applicable guideline range.‖




                             21
       E. Rule of Lenity

        In circumstances in which an ambiguous criminal
statute cannot be clarified by its ―text, structure, history, []
purpose,‖ Barber v. Thomas, ___ U.S. ___, 130 S. Ct. 2499,
2508 (2010), or reasonable inferences drawn from the overall
statutory scheme, the rule of lenity provides that we must
resolve that ambiguity in favor of the defendant. Flemming,
617 F.3d at 269 (quoting United States v Pollen, 978 F.2d 78,
85 (3d Cir. 1992)); see Reno v. Koray, 515 U.S. 50, 65 (1995)
(―The rule of lenity applies only if, after seizing everything
from which aid can be derived, we can make no more than a
guess as to what Congress intended.‖) (citations and internal
quotation marks omitted). Courts should not, however, apply
this rule whenever confronted with a difficult interpretative
question. Instead, its application is limited to instances in
which there is a ―grievous ambiguity or uncertainty in the
statute, such that the Court must simply guess as to what
Congress intended.‖ Barber, 130 S. Ct. at 2508-09 (citations
and internal quotation marks omitted). We have previously
held that the rule of lenity applies to the Sentencing
Guidelines. Flemming, 617 F.3d at 271-72.

        As discussed above, we believe that the guidelines are
―grievous[ly] ambiguous‖ and hopelessly imprecise regarding
the Commission’s description of ―applicable guideline range‖
contained within the revised Application Note 1(A) to the
commentary of § 1B1.10. Without ―guess[ing]‖ what the
definition means, we cannot definitively resolve whether it
defines the phrase as the initial sentencing range calculated
under § 1B1.1(a)(7), or if it includes the statutory mandatory
minimum sentence determined at step § 1B1.1(a)(8). As both
interpretations are entirely plausible and nothing in the




                              22
guidelines provides definitive insight into the accuracy of
either reading, we conclude that we must apply the rule of
lenity and resolve the ambiguity in appellants’ favor. See
e.g., id. at 270-72; United States v. Bustillos-Penna, 612 F.3d
863, 868-69 (5th Cir. 2010) (applying rule of lenity to
conclude that a provision of the Sentencing Guidelines was
ambiguous).6


6
  We are aware that our decision today conflicts with the
Eleventh Circuit’s decision in United States v. Glover, 686
F.3d 1203 (11th Cir. 2012). There, the defendant was
convicted of a crack-related offense and had an initial
guidelines range—188-235 months’ imprisonment—that was
below his mandatory minimum of life in prison. Id. at 1204.
The defendant received a downward departure for substantial
assistance and a sentence of 204 months’ imprisonment. Id.
at 1205. The defendant sought a sentence reduction pursuant
to 18 U.S.C. § 3582(c)(2) based on Amendments 750 and
759, but the Eleventh Circuit held that he was ineligible
because ―[the defendant]’s guidelines range was—and still
is—life in prison.‖ Id. at 1208.

We believe the Eleventh Circuit’s decision was based on an
incorrect interpretation of the phrase ―applicable guidelines
range.‖ The Glover court began, as we did, by highlighting
the importance of the phrase ―applicable guideline range‖ to
the ultimate determination of whether a defendant ―has been
sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered,‖ 18 U.S.C. §
3582(c)(2). See Glover, 686 F.3d at 1206. However, the
Eleventh Circuit only analyzed the phrase as it appears in
U.S.S.G. § 1B1.10(a)(2)(B) and Application Note 1(A) before




                              23
       In reaching this result we note that we cannot view the
guidelines and the definition of ―applicable guideline range‖
in a vacuum. First, we must keep in mind that the Sentencing
Commission recognizes that defendants who provide
substantial assistance deserve special consideration. See 76
Fed. Reg. 41332-01, 41334 (July 7, 2011) (noting that ―[t]he
guidelines . . . have long recognized that defendants who
provide substantial assistance are differently situated than
other defendants,‖ and stating that the revisions
―appropriately maintain[] this distinction and further[] the



deciding that § 3582(c), § 1B1.10(a)(2)(B), and Application
Note l(A) ―all make it clear that . . . an amendment that alters
the initial calculation of a guidelines range is not to be applied
in a case where the difference in the initial calculation would
have made no difference because a mandatory minimum
would have trumped the initial calculation and dictated the
final guidelines range anyway.‖ See Glover, 686 F.3d at
1206. If the provisions the Eleventh Circuit analyzed were
the full extent of the relevant statutory language, we would
agree that ―applicable guidelines range‖ refers to the
mandatory minimum and not to the initial guidelines range.
But the Eleventh Circuit did not address the use of
―applicable guidelines range‖ as it appears in U.S.S.G. §
5G1.1(b). As we have explained, we cannot reconcile the
Sentencing Commission’s use of the phrase in § 5G1.1(b)—
which unquestionably refers to the initial guidelines range
and not to the mandatory minimum—with the Eleventh
Circuit’s reading of the phrase in U.S.S.G. § 1B1.10(a)(2)(B)
and Application Note 1(A). For that reason, we reach a
different conclusion than Glover.




                               24
purposes of sentencing‖). Also, we must be cognizant of the
general policies underlying the FSA and Amendment 750.
As discussed above, after Congress adopted the FSA to
remedy the disparity between crack and powder cocaine
penalties, it directed the Sentencing Commission to
promulgate emergency amendments to conform the
guidelines to the statutory changes.       One of these
amendments, Amendment 750, retroactively lowered the
crack cocaine base offense levels in § 2D1.1 to reflect the
reduced 18:1 ratio between powder and crack cocaine
adopted by the FSA.

       If appellants had been sentenced after Amendment 750
took effect, the amount of crack cocaine involved in Savani
and Herbert’s offenses of conviction would not have triggered
the amended mandatory minimum statutory provisions; the
amount involved in Roe’s offense would have triggered a
mandatory minimum of only five years. If we had interpreted
―applicable guidelines range‖ in the manner that the
government suggests, it would render appellants ineligible for
sentencing reductions merely because they were sentenced
prior to the adoption of retroactive Amendment 750. Such a
result is antithetical to the Fair Sentencing policy concerns
that motivated Congress in passing the FSA. See Flemming,
617 F.3d at 271-72.7




7
  For the reasons stated above, insofar as United States v.
Hippolyte, --- F.3d ----, No. 11-15933, 2013 WL 978695
(11th Cir. Mar. 14, 2013), differs in the definition of
―applicable guideline range,‖ we find it unpersuasive.




                             25
IV. Conclusion

        For the above reasons, we hold that, when a defendant
was subject to a mandatory minimum term and was sentenced
to a term pursuant to the guidelines but below the mandatory
minimum as a result of a § 3553 motion by the government,
and when the sentencing range is later lowered by the
Sentencing Commission pursuant to 28 U.S.C. § 994(o), that
defendant is eligible to move for reduction of sentence
pursuant to § 3582(c)(2). Because the district courts that
sentenced these defendants either held that the defendant was
not eligible for a reduction because of the mandatory
minimum or did not state whether the § 3553 motion was
being denied as a matter of law because of the mandatory
minimum or a matter of discretion, we will vacate the orders
and remand the Herbert and Roe cases to their respective
courts for further proceedings in accord with Freeman v.
United States, --- U.S. ----, 131 S. Ct. 2685, 2695 (2011)
(Sotomayor, J., concurring) and with the discretion of the
district courts. Because Savani died while his appeal was
pending, we will dismiss the appeal as moot and remand this
case to the district court to abate the judgment of sentence.
United States v. DeMichael, 461 F.3d 414, 417 (3d Cir.
2006).




                             26
FUENTES, Circuit Judge, concurring in part and concurring
in the judgment:

       I join the judgment vacating Herbert‟s and Roe‟s
sentences. I concur with the majority that the new definition
of “applicable guideline range” provided by Amendment 759
to the Sentencing Guidelines, which clarifies when a
defendant is eligible for resentencing based on certain
substantive amendments to the Guidelines, supersedes our
holding in United States v. Doe, 564 F.3d 305 (3d Cir. 2009).
Ante at 13-14. I write separately because, unlike the majority,
I do not find any ambiguity in the new definition of
“applicable guideline range.” In my view, the Federal
Sentencing Act of 2010 (“FSA”), made applicable to Herbert
and Roe (“Petitioners”) through Amendment 750 to the
Guidelines, lowered their “guideline range that corresponds to
the offense level and criminal history category determined
pursuant to § 1B1.1(a).” U.S.S.G. § 1B1.10 app. n.1(A)
(2011); see also U.S.S.G. app. C., amend. 750 (Nov. 1, 2011).
Accordingly, I would hold that Petitioners are eligible for
resentencing under 18 U.S.C. § 3582(c)(2) based on the plain
text of Amendment 759. I would not resort to the rule of
lenity when a clear answer is provided by the language of the
Guidelines.

A.    The Text of the Application Notes to Section 1B1.10

      To be eligible for resentencing consistent with 18
U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, Petitioners must
meet two requirements: (1) their sentences must be “based
on” a Guidelines range, and (2) an applicable Guidelines
amendment must have “the effect of lowering” that range.
United States v. Thompson, 682 F.3d 285, 290 (3d Cir. 2012).




                              1
The relevant issue here is whether Petitioners meet the second
part of this test based on the Fair Sentencing Act amendments
to the crack-cocaine Guidelines, which ultimately turns on
whether the amendments lowered Petitioners‟ “applicable
guideline range.”

       In Doe we held that defendants such as Petitioners who
were convicted of crack-cocaine related offenses and exposed
to a statutory mandatory minimum sentence that exceeded
their guideline range, calculated under U.S.S.G.
§ 1B1.1(a)(7), but were sentenced below that minimum
pursuant to a substantial assistance motion based on U.S.S.G.
§ 5K1.1, were ineligible for resentencing. See Doe, 546 F.3d
at 309. We reasoned that “applicable guideline range,” a term
then not defined by the Guidelines, referred to the statutory
minimum sentence calculated at step 8 of the sentencing
process, which was not affected by the crack-cocaine
amendments. Id. at 312. We rejected the contention that
“applicable guideline range” referred to the range calculated
based on the defendant‟s offense level and criminal history
category, under step 7 of the initial sentencing calculation,
U.S.S.G. § 1B1.1(a)(7). Id. at 311.1
       Amendment 759, however, for the first time defined
“applicable guideline range” by amending Application Note
1(A) of § 1B1.10. The effect of this amendment is that the
Guidelines now explain that “[e]ligibility for [resentencing]

1
   These steps were designated as (a) through (h) before
November 1, 2010 but on that date were re-designated as (1)
through (8) in order to “adopt[] the three-step approach
followed by a majority of circuits in determining the sentence
to be imposed.” U.S.S.G. app. C, amend. 741 (effective Nov.
1, 2010).




                              2
under 18 U.S.C. § 3582(c)(2) is triggered only by an
amendment . . . that lowers . . . the guideline range that
corresponds to the offense level and criminal history category
determined pursuant to § 1B1.1(a), which is determined
before consideration of any departure provision in the
Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 app.
n.1(A) (2011) (emphasis added); see also U.S.S.G. app. C.,
amend. 759 (Nov. 1, 2011).

        This language could not be clearer in demonstrating
that our conclusion in Doe was incorrect. Following the
Application Note‟s reference to § 1B1.1(a), it is immediately
obvious that only under one of the steps listed in that section
does the court “[d]etermine[s] the guideline range . . . that
corresponds to the offense level and criminal history category
determined”—step 7, which is set forth in § 1B1.1(a)(7). In
other words, as the majority agrees, the language of the
calculation mandated by § 1B1.1(a)(7) is the exact language
that appears in the provision governing eligibility for
resentencing, § 1B1.10, Application Note 1(A). See ante at
15-16. Indeed, one of the provisions explicitly cross-
references the first. Accordingly, the natural reading is that
Application Note 1(A)‟s reference to the range calculated
“pursuant to § 1B1.1(a)” means the guideline range calculated
in step 7 of § 1B1.1(a).

        The Government‟s contention that the definition of
“applicable guideline range” may continue to refer to the
mandatory minimum sentences of step 8, § 1B1.1(a)(8), falls
flat for that reason—under no other step of § 1B1.1(a) is a
range determined based on a previously calculated offense
level and a criminal history. As the majority recognizes, the
computation of mandatory minimums at step 8 does not




                              3
involve sentence “ranges” or the recalculation of offense
levels or criminal history categories. See id. at 16 n.5.

       Nevertheless, the Government insists that the reference
to § 1B1.1(a) in the amended Note 1(A) is ambiguous
because “[i]t is not expressly stated that the Commission
intended the term „applicable guideline range‟ as calculated
under § 1B1.1(a) to refer only to the steps of § 1B1.1(a)(1)-
(a)(7) and not to include § 1B1.1(a)(8).” The majority
appears to credit that argument. Id. at 16.

       But, in this context, we ought to reject reading
ambiguity into the statute based on what it did not but could
have said. It is true that the cross-reference in Application
Note 1(A) is to § 1B1.1(a) generally and not specifically to
§ 1B1.1(a)(7). However, an explicit reference to clause (7) is
not needed, given that the language of Note 1(A) already
exactly tracks the language of clause (7). Requiring any
further granularity from each cross-reference that may appear
in the Guidelines is overkill. After all, the definition of
“applicable guideline range” in Note 1(A) also mentions the
“offense level and criminal history category determined
pursuant to § 1B1.1(a)” without specifically noting that the
referenced “offense level” is determined under clauses (1)-(5)
of § 1B1.1(a), or that the noted “criminal history category” is
determined under clause (6) of § 1B1.1(a). No one would
argue that such references are ambiguous because they do not
particularly list the relevant subsection of § 1B1.1(a).
Accepting the Government‟s argument would inject
ambiguity into an otherwise “logical” reading of a statute,




                              4
ante at 16, based on what the statute does not say. In my
view, this violates basic tenets of statutory construction.2

       The Government also seizes on the second clause in
the new definition of “applicable guideline range,” which
specifies that such range is “determined before consideration
of any departure provision in the Guidelines Manual or any
variance.” According to the Government, because all eight
steps in § 1B1.1(a), including the mandatory minimum, are
calculated before the consideration of departures or variances,
“applicable guideline range” could also refer to the
mandatory minimum.
       But the reference to when the “applicable guideline
range” is determined does not matter for purposes of this

2
   To be fair, the Government‟s argument was recently
accepted by the Eleventh Circuit in a case where the
defendant, unlike the Petitioners, was sentenced to the
mandatory minimum. United States v. Hippolyte, __ F.3d __,
No. 11-15933, 2013 WL 978695 (11th Cir. Mar. 14, 2013).
The Court reasoned that the reference to § 1B1.1(a) must be a
reference to step 8 because under § 1B1.1(a) “one necessarily
is required to take into account the mandatory minimum
sentences that may be statutorily required,” id., at *4, but
despite this held that Hippolyte was ineligible for
resentencing because “the new definition of applicable
guideline range . . . nowhere mentions statutorily required
mandatory minimum sentences” and “has nothing to do with
mandatory minimums.” Id. Because it is inconsistent to
conclude that the new resentencing eligibility criteria both has
“nothing to do” with mandatory minimums but also refers to
the mandatory minimums calculated at step 8 of § 1B1.1(a), I
find unpersuasive the reasoning of Hippolyte.




                               5
analysis. The guideline range calculated at step 7 of
§ 1B1.1(a) is “determined before consideration of any
departure provision in the Guidelines Manual or any
variance.” While it is true that the mandatory minimum of
step 8 is also determined “before consideration” of departures
or variances, so too are all the other calculations mandated by
§ 1B1.1(a). The argument could only work by inserting the
word “immediately” so that the definition of “applicable
guideline range” would be that which is “determined
immediately before consideration” of any departure or
variance. But that is not what Application Note 1(A) says.

       The Government‟s remaining arguments based on the
Application Notes to § 1B1.10 are not persuasive. The
additional language in Application Note 1(A) merely clarifies
that regardless of the effect of a substantive amendment on
the range calculated at step 7, a defendant is not eligible for
resentencing if he was instead sentenced to a statutory
minimum and not to a sentence based on the guideline range.
But this is irrelevant in the cases before us as Petitioners were
not sentenced to a statutory mandatory minimum. But see
United States v. Glover, 686 F.3d 1203 (11th Cir. 2012)
(refusing to grant relief under Amendment 759 to defendant
not sentenced to statutory minimum); United States v.
McClain, 691 F.3d 774 (6th Cir. 2012) (same). And there is
no basis in the language of Application Note 3 to draw a
distinction between defendants whose guidelines range was
higher than their mandatory minimums and those whose
range was below it, and a reading supporting such result is
contrary to the clear statutory purpose of the FSA—to lower
the sentences of all crack-cocaine offenders. See also Doe,
564 F.3d at 318 (Fuentes, J., concurring).




                               6
        In sum, because I believe that the language of the
statute at issue here makes clear that the FSA and its
amendments had the effect of lowering Petitioners‟
“applicable guideline range,” no foray into other provisions of
the Guidelines is necessary, nor do we need to invoke the rule
of lenity. Our role is to give meaning to these plain words in
light of the overall purpose of the statute, and in particular the
amendments to the crack-cocaine guidelines mandated by the
FSA. Our statutory inquiry should be at an end. See Conn.
Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“[I]n
interpreting a statute, a court should always turn first to [this]
one, cardinal canon before all others. . . . When the words of a
statute are unambiguous, then, this first canon is also the last:
judicial inquiry is complete.”) (internal quotation marks
omitted).3




B.     Third Circuit Cases Decided Since The Enactment
       of Amendment 759




3
  The other provisions the majority cites do not change this
analysis. The failure of the Historical Notes to § 1B1.10 to
explicitly endorse my reading of “applicable guidelines
range” does not inject ambiguity into the clear language of
the statute. Were a statute‟s legislative history‟s failure to
endorse a proposed reading of a statute a sufficient reason to
reject such reading, few statutory interpretation cases would
be resolved by the courts.




                                7
       The Government also contends that cases decided
since the enactment of Amendment 759 support its view that
the approach in Doe remains good law. I disagree.

        The most relevant cases are those involving career
offenders, where we have held that defendants exposed to
career offender guidelines but granted departures from those
guidelines are not eligible for resentencing under crack-
cocaine amendments. See, e.g., United States v. Ware, 694
F.3d 527, 529, 530 (3d Cir. 2012); United States v. Barney,
672 F.3d 228, 231-32 (3d Cir. 2012). But Ware and Barney
are consistent with my reading of “applicable guideline
range” because in career offender cases the applicable
guideline range is still calculated at step 7. That range is
based on an applicable offense level and criminal history
category that the career offender guidelines may have altered
at step 6 of the calculation. In such context, it makes perfect
sense to say that the “applicable guideline range . . . is „the
range dictated by the Career Offender Guidelines.‟” Ware,
694 F.3d at 535 (quoting Barney, 672 F.3d at 232). Although
a court may then calculate an alternative guideline range after
granting a departure, it remains the case that the career
offender guidelines range is calculated at step 7, and that such
range is not affected by the FSA. By contrast, when a
defendant is exposed to a statutory minimum, neither the
offense level nor criminal history category change—the range
corresponding to those levels has already been calculated at
step 7.

C.     Whether Petitioners’ Sentences Were “Based On” a
       Guidelines Range




                               8
        Petitioners must also demonstrate that their sentence
was “based on” a Guidelines range. See Thompson, 682 F.3d
at 290. Herbert‟s substantial cooperation agreement stated
the parties‟ view that the crack-cocaine range was reasonable.
When the District Court granted the Government‟s motion for
a sentence below the mandatory minimum, it also adopted the
crack-cocaine guideline range and sentenced defendant within
that range. Thus, Herbert‟s sentence was factually “based on”
a guidelines range.

       The Government nevertheless has suggested that our
decision in United States v. Winebarger, 664 F.3d 388, 396
(3d Cir. 2011), means that Herbert‟s sentence could not
legally be “based on” a guidelines range. In Winebarger,
which was decided after Herbert was sentenced, we held that
it was improper for a sentencing court to consider factors
other than those relating to the defendant‟s assistance in
deciding how far below the statutory minimum to depart, but
did not preclude consideration of the seriousness of the
offense in deciding to limit the scope of a departure.
Winebarger, 664 F.3d at 396 (citing United States v. Casiano,
113 F.3d 420, 430 (3d Cir. 1997)). Thus, Winebarger does
not categorically preclude defendants like Herbert from
meeting the first part of the test required for resentencing.4
D.     Conclusion


4
  In a subsequent submission the Government conceded that
Winebarger does “not play a role in the government‟s
primary argument.” Govt. 28(j) Letter of June 25, 2012 at 4-
5. Nevertheless, the Government still contends that “a below-
mandatory sentence resting on a cooperation motion is never
„based on‟ an alternative guideline range.” Id. at 5.




                              9
        I do not disagree with the majority‟s analysis of why
application of the rule of lenity would also require us to
vacate Petitioners‟ sentences. See ante at 22-26. But to
justify application of the rule in the first place, we must face
more than “a difficult interpretative question.” Id. at 22. I do
not find such grievous ambiguity.

        Although these cases appear to be frustratingly
complex, they are not. While the parties foray into other
cases and other provisions of the Guidelines, this is
unnecessary because our post-Doe jurisprudence has not
addressed squarely the issue presented here; only Amendment
759 speaks directly to that question and does so in a clear
manner. That amendment, in my view, clearly states that the
“applicable guideline range” of a defendant is calculated at
§ 1B1.1(a)(7), even if he is exposed to a statutory mandatory
minimum. I would give effect to this language by deciding
this case as a matter of statutory construction. Nothing in the
remainder of the application notes to § 1B1.10 or other
provisions of the Guidelines changes this result. So long as
the defendant was not sentenced to the statutory minimum, he
is eligible for resentencing based on the FSA.

       Accordingly, I concur in the judgment vacating
Petitioners‟ sentences but cannot join the reasoning used to
reach that result.




                              10
