United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 15-3794
     ___________________________

          United States of America

    lllllllllllllllllllll Plaintiff - Appellee

                       v.

             Timothy D. Koons

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 15-3825
     ___________________________

          United States of America

    lllllllllllllllllllll Plaintiff - Appellee

                       v.

           Kenneth Jay Putensen

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 15-3854
     ___________________________

          United States of America

    lllllllllllllllllllll Plaintiff - Appellee
                    v.

             Randy Feauto

lllllllllllllllllllll Defendant - Appellant
   ___________________________

          No. 15-3880
  ___________________________

       United States of America

 lllllllllllllllllllll Plaintiff - Appellee

                    v.

          Esequiel Gutierrez

lllllllllllllllllllll Defendant - Appellant
   ___________________________

          No. 15-3894
  ___________________________

       United States of America

 lllllllllllllllllllll Plaintiff - Appellee

                    v.

         Jose Manuel Gardea

lllllllllllllllllllll Defendant - Appellant
                ____________




                    -2-
                    Appeals from United States District Court
                   for the Northern District of Iowa - Sioux City
                                  ____________

                           Submitted: October 19, 2016
                              Filed: March 10, 2017
                                  ____________

Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
                         ____________

LOKEN, Circuit Judge.

       In these consolidated appeals, five defendants convicted of methamphetamine
conspiracy offenses appeal denial of their motions for sentence reductions under 18
U.S.C. § 3582(c)(2). For all five, the initial advisory guidelines range was entirely
below the statutory mandatory minimum, and each was sentenced below that
minimum after the district court granted government motions for § 3553(e)
substantial assistance departures. The question is whether § 3582(c)(2) relief is now
available because Amendment 782 to the Guidelines retroactively reduced by two
levels the base offense levels assigned to drug quantities, lowering the advisory
guidelines range for most drug offenses. We conclude that these defendants are not
eligible for a § 3582(c)(2) reduction because their sentences were not “based on” a
guidelines range subsequently lowered by the Sentencing Commission. Thus, we
affirm the district court’s denial of sentencing reductions on a different ground.

                                         I.

        In November 2012, Randy Feauto pleaded guilty to conspiracy to manufacture
and distribute 50 grams or more of actual methamphetamine and unlawful possession
of a firearm. Feauto’s advisory guidelines range was 168 to 210 months in prison, but
the conspiracy offense mandated a statutory minimum 20-year sentence, which


                                         -3-
became his guidelines sentence under U.S.S.G. § 5G1.1(b). The government moved
for a substantial assistance downward departure. See 18 U.S.C. § 3553(e); U.S.S.G.
§ 5K1.1. The government recommended a ten percent reduction because Feauto had
continued dealing drugs while assisting law enforcement by making controlled buys
from drug dealers. The district court imposed a 132-month sentence, 45 percent
below the mandatory minimum.

       After Amendment 782 became effective on November 1, 2014, the district
court initiated a § 3582(c)(2) proceeding to determine whether Feauto was eligible
for a sentence reduction. The United States Probation Office calculated his amended
guidelines range to be 121 to 151 months in prison, disregarding § 5G1.1 of the
Guidelines, as U.S.S.G. § 1B1.10(c) instructs. Promulgated by the Commission in
Amendment 780, § 1B1.10(c) provides, with emphasis added:

      Cases Involving Mandatory Minimum Sentences and Substantial
      Assistance. If the case involves a statutorily required minimum sentence
      and the court had the authority to impose a sentence below the
      statutorily required minimum sentence pursuant to a government motion
      to reflect the defendant’s substantial assistance to authorities, then for
      purposes of this policy statement the amended guideline range shall be
      determined without regard to the operation of § 5G1.1 (Sentencing on
      a Single Count of Conviction) and § 5G1.2 (Sentencing on Multiple
      Counts of Conviction).

This appeared to make Feauto eligible for discretionary § 3582(c)(2) relief that could
reduce his sentence to as low as 67 months, a reduction comparable to the initial 45
percent substantial assistance reduction. See U.S.S.G. § 1B1.10, cmt. n.4.

       At the § 3582(c)(2) motion hearing, the district court commented, “I don’t see
how a retroactive guideline can essentially trump a mandatory minimum like it does
in this case,” and ordered briefing on the issue. The government and Feauto agreed


                                         -4-
he was eligible for a reduction, but disagreed as to whether the district court should
exercise its discretion to reduce his sentence. After giving the parties an opportunity
to comment on its tentative decision, the court ruled that the Sentencing Commission
exceeded its authority in promulgating a guideline, § 1B1.10(c), that nullifies the
statutory minimum sentence, or that Congress violated the non-delegation doctrine
and separation-of-powers principles if it granted that authority. Accordingly, the
district court concluded, Feauto was not eligible for § 3582(c)(2) relief because he
“was subject to a mandatory minimum sentence exceeding both his original guideline
range and his amended guideline range.” United States v. Feauto, 146 F. Supp. 3d
1022, 1041 (N.D. Iowa 2015). This decision was consistent with controlling Eighth
Circuit precedent prior to the adoption of § 1B1.10(c) in November 2014. See United
States v. Moore, 734 F.3d 836, 838 (8th Cir. 2013).

       The other four appellants were likewise convicted of drug conspiracy offenses
mandating statutory minimum sentences greater than their entire advisory guidelines
ranges -- Timothy Koons (20-year mandatory minimum), Kenneth Jay Putensen (life),
Jose Gardea (10 years), and Esequiel Gutierrez (20 years). Each was granted a
substantial assistance reduction below the mandatory minimum sentence -- Koons to
180 months (25 percent); Putensen to 264 months (35 percent); Gardea to 84 months
(30 percent); and Gutierrez to 192 months (36 percent). Amendment 782 lowered
their amended guidelines ranges further below the mandatory minimum, calculated
in accordance with § 1B1.10(c). The district court denied § 3582(c)(2) sentencing
reductions, relying on its ruling in Feauto. These appeals followed. We review
defendants’ eligibility for § 3582(c)(2) sentence reductions de novo. United States
v. Bogdan, 835 F.3d 805, 807 (8th Cir. 2016).

                                          II.

      Providing a rare exception to the finality of criminal judgments, § 3582(c)(2)
allows a district court to reduce the sentence of “a defendant who has been sentenced

                                         -5-
to a term of imprisonment 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.” The applicable
policy statement, U.S.S.G. § 1B1.10, provides that a defendant is eligible for a
discretionary § 3582(c)(2) reduction if his applicable guidelines range is lowered by
a retroactive amendment listed in § 1B1.10(d), such as Amendment 782. See
U.S.S.G. § 1B1.10(a). The extent of a § 3582(c)(2) reduction is normally limited to
the bottom of the amended guidelines range, but if the defendant initially received a
sentence below the initial guidelines range by reason of a substantial assistance
reduction, “a reduction comparably less than the amended guideline range . . . may
be appropriate.” § 1B1.10(b)(2)(B).

       For a defendant to be eligible for § 3582(c)(2) relief under U.S.S.G.
§ 1B1.10(a), Amendment 782 must lower his applicable guideline range. A conflict
in the circuits developed regarding how to determine eligibility when the applicable
guidelines range is affected by a mandatory minimum sentence. Some circuits held
that a retroactive amendment did not have the effect of lowering the defendant’s
applicable guidelines range because, by reason of § 5G1.1(b), the amended and
original range were both determined by the mandatory minimum. See, e.g., United
States v. Joiner, 727 F.3d 601, 608-09 (6th Cir. 2013), cert. denied, 134 S. Ct. 1357
(2014); United States v. Johnson, 732 F.3d 109, 114-15 (2d Cir. 2013); United States
v. Baylor, 556 F.3d 672, 673 (8th Cir. 2009). In promulgating § 1B1.10(c), the
Commission explained that “circuits are split over what to use as the bottom of the
[amended] range.” The Commission “generally adopt[ed]” the approach of the Third
Circuit and the D.C. Circuit -- when a defendant’s initial guidelines range was
entirely below the mandatory minimum, “the bottom of the amended range [is] . . . the




                                         -6-
bottom of the Sentencing Table guideline range,” disregarding § 5G1.1(b). U.S.S.G.
App. C, Amend. 780, at 56 (Supp. 2015), citing United States v. Savani, 733 F.3d 56,
66-67 (3d Cir. 2013), and In re Sealed Case, 722 F.3d 361, 369-70 (D.C. Cir. 2013).1

      The government’s interpretation of § 1B1.10(c) makes defendants eligible for
§ 3582(c)(2) reductions, contrary to our controlling prior precedents. See Moore, 734
F.3d at 838; Baylor, 556 F.3d at 673. On appeal, the government argues that
§ 1B1.10(c) requires us to reexamine these precedents and urges us to follow the
Fourth Circuit panel majority in United States v. Williams, 808 F.3d 253 (4th Cir.
2015). Defendants are eligible for discretionary § 3582(c)(2) reductions, the
government argues, because § 3582(c)(2) authorizes a reduction based on a
defendant’s substantial assistance if it is “consistent with applicable policy statements
issued by the Sentencing Commission.”

       As we noted in Bogdan, 835 F.3d at 807, the government, like the Commission,
ignores a critical “threshold question” raised by the plain language of § 3582(c)(2),
namely, whether each defendant was sentenced “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” § 3582(c)(2) (emphasis
added); see Dillon v. United States, 560 U.S. 817, 821 (2010). Like the defendants
in this case, Joseph Bogdan’s guidelines range was entirely below the mandatory
minimum, and he received an initial sentence below the mandatory minimum for his
substantial assistance. We did not answer this threshold question in Bogdan because
that case turned on the application of the Supreme Court’s decision in Freeman v.


      1
       In deciding these appeals, we accept the Commission’s resolution of
conflicting judicial interpretations of the term “applicable guideline range” in
U.S.S.G. § 1B1.10(a). “[P]rior judicial constructions of a particular guideline cannot
prevent the Commission from adopting a conflicting interpretation” provided it does
not violate the Constitution or a federal statute and is not plainly erroneous. Stinson
v. United States, 508 U.S. 36, 46 (1993). The district court concluded that
§ 1B1.10(c) is constitutionally flawed, an issue we do not address.

                                          -7-
United States, 564 U.S. 522 (2011), to defendant Bogdan’s Rule 11(c)(1)(C) plea
agreement. But we were “inclined to agree with Fourth Circuit Chief Judge William
Traxler that, in this situation, the sentence would not be based on a range the
Sentencing Commission subsequently lowered, ‘because it was not based on a
sentencing range in the first instance.’” Id. at 808, quoting Williams, 808 F.3d at 264
(Traxler, C.J., dissenting). “The more logical interpretation would be that the [term
of imprisonment] was based on the mandatory minimum, not on a guidelines range.”
Bogdan, 835 F.3d at 809.

       With the issue now fully briefed and argued, we adhere to our tentative
conclusion in Bogdan. When the district court grants a § 3553(e) substantial
assistance motion and grants a substantial assistance departure to a defendant whose
guidelines range is entirely below the mandatory minimum sentence, the court must
use the mandatory minimum as the starting point. See United States v. Billue, 576
F.3d 898, 904-05 (8th Cir.), cert. denied, 558 U.S. 1058 (2009). Any “reduction
below the statutory minimum must be based exclusively on assistance-related
considerations.” United States v. Williams, 474 F.3d 1130, 1131 (8th Cir. 2007); see
Feauto, 146 F. Supp. 3d at 1036, 1039. In these cases, each defendant’s prison term
was “based on” his statutory mandatory minimum sentence and his substantial
assistance. The guidelines range “artificially established by § 5G1.1(b)” depended
upon the mandatory minimum. Bogdan, 835 F.3d at 809. If § 5G1.1(b) did not exist,
the district court would still have set these defendants’ sentences at the mandatory
minimum before considering a substantial assistance departure. And if initially
sentenced today with Amendment 782 in effect, the defendants would be “stuck with
that mandatory minimum sentence as a ‘starting point’ for any substantial assistance
reduction.” Feauto, 146 F. Supp. 3d at 1037. “In essence, the advisory sentencing
range became irrelevant.” Williams, 808 F.3d at 264 (Traxler, C.J., dissenting).

      We respectfully decline to follow the Fourth Circuit panel majority in
Williams. In United States v. Hood, 556 F.3d 226 (4th Cir.), cert. denied, 558 U.S.

                                         -8-
921 (2009), an earlier Fourth Circuit panel concluded: “Because Hood’s 240-month
Guidelines sentence was based on a statutory minimum and U.S.S.G. § 5G1.1(b), it
was not based on a sentencing range lowered by Amendment 706, and at this point
in the analysis, Hood would not be eligible for a reduced sentence under
§ 3582(c)(2).” Hood, 556 F.3d at 233. Likewise, in Moore, 734 F.3d at 838, we held
that “Moore’s sentence was based on a statutory mandatory minimum term of
imprisonment. Accordingly, Amendment 750 does not apply . . . and Moore is not
eligible for relief under section 3582(c)(2).” Then-Chief Judge Traxler’s dissent in
Williams specifically relied on Hood’s statutory “based on” analysis, 808 F.3d at 265-
66, yet the Williams majority concluded that Hood was simply “inapplicable” after
Amendment 780, ignoring altogether that “based on” is a statutory prerequisite of
§ 3582(c)(2) eligibility, id. at 261.

      The Commission in Amendment 780 also ignored this “based on” statutory
requirement, despite numerous circuit court decisions such as Hood and Moore that
had considered this a critical, if not determinative, issue. For example, in “generally”
adopting the Third Circuit and D.C. Circuit “approach,” the Commission did not
acknowledge the D.C. Circuit’s analysis of the “based on” requirement in In re Sealed
Case, 722 F.3d at 365-66, nor the fact that the Third Circuit in Savani, 733 F.3d at 67,
after concluding that “applicable guideline range” in § 1B1.10(a)(2)(B) was
ambiguous and should be construed in favor of the defendants under the Rule of
Lenity, remanded for consideration of whether defendants’ sentences were “based on”
a guidelines range in light of Freeman. See also United States v. Glover, 686 F.3d
1203, 1208 (11th Cir. 2012).

      The Commission’s failure to consider the meaning of the term “based on” in
§ 3582(c)(2) is especially perplexing given the Supreme Court’s recent decision in
Freeman. That case turned on whether a defendant who was sentenced in accordance
with a Rule 11(c)(1)(C) plea agreement was ineligible for a § 3582(c)(2) reduction
because his sentence was “based on” the plea agreement, rather than on a lowered

                                          -9-
sentencing range. Five Justices held that the sentence was based on the plea
agreement. See 564 U.S. at 535 (Sotomayor, J., concurring), 545 (Roberts, C.J.,
dissenting). The dissenters acknowledged that a defendant’s sentence is “based on”
a guidelines range when his Rule 11(c)(1)(C) plea agreement “expressly provid[ed]
that the court will sentence the defendant within an applicable Guidelines range.”
Id. at 546. Justice Sotomayor concurred in the result, concluding the defendant is
also eligible for relief if the plea agreement “make[s] clear that the basis for the
specified [prison] term is [an applicable] Guidelines sentencing range.” Id. at 539.
The plurality, in the minority on this issue, concluded that the sentence imposed
pursuant to a Rule 11(c)(1)(C) plea agreement is “based on” the applicable guidelines
range considered by the district court in accepting the agreement. Id. a 529.

       The reasoning of all nine Justices in Freeman required a greater substantive
relationship between the plea agreement and a guidelines range than the fictional
relationship between a mandatory minimum sentence required by statute and a
guidelines “range” determined by § 5G1.1(b). A § 5G1.1(b) artificial range in no
substantive way “serves as the basis or foundation for the term of imprisonment.” Id.
at 535 (Sotomayor, concurring). Justice Sotomayor’s concurring opinion controls in
construing Freeman. See United States v. Browne, 698 F.3d 1042, 1045 (8th Cir.
2012), cert. denied, 133 S. Ct. 1616 (2013). But all nine Justices construed the term
“based on” as imposing a substantive limitation on § 3582(c)(2) relief, a limitation
inconsistent with the examples discussed by the Commission in Amendment 780, and
with the result reached by the Fourth Circuit majority in Williams.

       Congress has declared that the Commission’s guidelines and policy statements
shall “establish a sentencing range that is consistent with all pertinent provisions of
title 18, United States Code.” 28 U.S.C. § 994(b)(1). But the Commission’s
interpretation of § 3582(c)(2) ignores the statute’s plain text as construed in
Freeman -- defendants’ sentences were “based on” the mandatory minimum and their



                                         -10-
substantial assistance, not on “a sentencing range that has subsequently been lowered
by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Once the Supreme Court
determines the meaning of a statute, courts “assess an agency’s later interpretation of
the statute against that settled law.” Neal v. United States, 516 U.S. 284, 295 (1996).
“[T]he Commission does not have the authority to amend [a] statute” the Supreme
Court has construed. Id. at 290; see United States v. Stoneking, 60 F.3d 399, 402 (8th
Cir. 1995) (en banc). “If the Commission’s revised commentary is at odds with
[§ 3582(c)(2)’s] plain language, it must give way.” United States v. LaBonte, 520
U.S. 751, 757 (1997). Nor can “the Sentencing Commission . . . overrule circuit
precedent interpreting a statutory provision.” Williams, 808 F.3d at 266 (Traxler,
C.J., dissenting).2

      For these reasons, we conclude that the defendants are ineligible for
§ 3582(c)(2) sentencing reductions because their initial sentences were not “based
on” a guidelines range lowered by Amendment 782. Accord United States v. C.D.,
No. 15-3318+, 2017 WL 694483 (10th Cir. Feb. 22, 2017). Accordingly, the district
court orders denying § 3582(c)(2) reductions are affirmed.
                      ______________________________




      2
       The original Commentary to § 5G1.1 stated, more plainly than the amended
version, “[i]f the statute requires imposition of a sentence other than that required by
the guidelines, the statute shall control.” U.S.S.G. App. C, Vol. 1, Amend. 286.


                                         -11-
