                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0610n.06
                                                                                      FILED
                                           No. 16-1017                          Nov 17, 2016
                                                                            DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )   ON APPEAL FROM THE
v.                                                       )   UNITED STATES DISTRICT
                                                         )   COURT FOR THE WESTERN
ALLEN EUGENE BATTLES,                                    )   DISTRICT OF MICHIGAN
                                                         )
       Defendant-Appellant.                              )
                                                         )

BEFORE: MOORE, SUTTON, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Allen Eugene Battles appeals the district court’s

denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on an amendment to

the sentencing guidelines.    Battles contends that the district court provided an inadequate

explanation for its decision. We agree, and VACATE AND REMAND for further proceedings.

                                               I.

       In December 2007, Battles was charged with conspiring to distribute and possess with

intent to distribute five kilograms or more of cocaine. A superseding indictment added a felon-

in-possession charge, and the government later filed a notice of prior felony drug conviction,

making Battles subject to a statutory mandatory minimum sentence of not less than 20 years, if

convicted. See 21 U.S.C. § 841(b)(1)(A).

       As we explained when reviewing Battles’s original sentence:

       Prior to trial, however, Battles entered into a plea agreement with the government,
       pursuant to which he agreed to plead guilty to the conspiracy charge and to assist
       the government in its investigation into other drug crimes in exchange for the
       government’s dismissal of the felon-in-possession charge, a recommendation that
No. 16-1017
United States v. Battles

       the district court grant him a reduction in sentence for acceptance of
       responsibility, and a possible motion for a downward departure from the required
       sentence for providing substantial assistance.

United States v. Battles, 350 F. App’x 16, 17 (6th Cir. 2009) (per curiam). The government did

make a substantial-assistance motion, and asked for a 210-month sentence, which it regarded as

the equivalent of a two-offense-level reduction from the 240-month statutory minimum sentence.

       At Battles’s sentencing hearing, the district court determined that Battles’s offense level

was 33 and his criminal history was category III, which would normally result in a guidelines

range of 168 to 210 months, but because of the mandatory minimum, the guidelines provided for

a 240-month sentence under USSG § 5G1.1(b). The district court then granted the government’s

motion, accepted its recommendation, and imposed a sentence of 210 months, plus 10 years of

supervised release and a $2,000 fine.

       Battles appealed, arguing that the substantial-assistance departure should have been

calculated from the 168- to 210-month range, not the 240-month statutory minimum. See

Battles, 350 F. App’x at 18. We affirmed, holding that the district court correctly concluded that

“the statutorily required minimum sentence shall be the guideline sentence” from which to

calculate the departure. Id. at 19 (discussing United States v. Stewart, 306 F.3d 295, 331 n.21

(6th Cir. 2002)).

       Battles continued to cooperate with the government during his incarceration, which led

the government to file a Federal Rule of Criminal Procedure 35(b) motion in 2010, seeking a

sentencing reduction of “approximately 60 months” based on Battles’s continued substantial

assistance. (R. 109, PID 403.) The district court granted the motion and reduced Battles’s 210-

month sentence to 144 months.




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No. 16-1017
United States v. Battles

       In November 2014, Battles filed a motion to reduce his sentence under 18 U.S.C.

§ 3582(c)(2), citing Amendment 782.1 The Probation Office prepared a Sentence Modification

Report (SMR), which concluded that Battles was eligible for a sentence reduction and that his

amended guidelines range was 135-168 months. The SMR recommended that Battles’s sentence

be reduced to 116 months’ imprisonment. The government supported that recommendation,

noting that a 116-month sentence would reflect the guidelines provision that permits a

proportionate departure below the amended guidelines range when the defendant was initially

sentenced below the then-applicable range based on the government’s substantial assistance

motion. USSG § 1B1.10(b)(2)(B) & comment. (n. 3). Battles argued for a 102-month sentence,

which would reflect a 66-month reduction from the top of his new guidelines range, thus

preserving the full benefit of the 2010 substantial assistance reduction.      The district court

declined to grant Battles any relief, denying his motion in a form order. In the space provided

for explanation, the district court wrote:

               Defendant’s actual guideline range both before and after the Amendment
       782 is actually 240 months, the statutory mandatory minimum. Defendant’s
       original sentence was below the mandatory minimum because of a 5K motion that
       released it. Defendant later received the benefit of a Rule 35 reduction as well,
       reducing his sentence to 144 months. The Court agrees Defendant is eligible for
       further reduction on these facts, but the Court does not believe a further reduction
       is warranted based on the entire record, and so the Court exercises its discretion
       not to award a further reduction.

(R. 139, PID 586.) This appeal followed.




       1
         Amendment 782 to the Sentencing Guidelines “reduced the base offense levels for most
drug-trafficking crimes”—including Battles’s—and was made retroactive by Amendment 788.
See United States v. Bonds, ___ F.3d___, No. 15-2405, 2016 WL 5956726, at *2 (6th Cir. Oct.
14, 2016) (citations omitted).


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United States v. Battles

                                                 II.

       When a district court denies a § 3582(c)(2) reduction request on the merits, as opposed to

on eligibility grounds, we review that decision for abuse of discretion. United States v. Curry,

606 F.3d 323, 327 (6th Cir. 2010) (citing United States v. Carter, 500 F.3d 486, 490 (6th Cir.

2007)). “A district court abuses its discretion when it relies on clearly erroneous findings of fact,

or when it improperly applies the law or uses an erroneous legal standard.” Id. (quoting United

States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428, 450 (6th Cir.

2005)). Our court will reverse only when “firmly convinced that a mistake has been made.”

United States v. Webb, 760 F.3d 513, 517–18 (6th Cir. 2014) (quoting United States v. Moore,

582 F.3d 641, 644 (6th Cir. 2009)) (internal quotation marks omitted). Further, as a “minimal

requirement,” a district court “must satisfy the appellate court that it has considered the parties’

arguments and has a reasoned basis for exercising its own legal decision-making authority.”

United States v. Howard, 644 F.3d 455, 460 (6th Cir. 2011) (quoting United States v. Archer,

362 F. App’x. 491, 495–96 (6th Cir. 2010)) (brackets and ellipses removed).

                                                III.

       Battles does not argue that the decision to deny his sentence modification request was an

abuse of discretion, only that the district court failed to adequately explain its reasons. We agree.

                                                 A.

       As our cases demonstrate, whether the denial of a sentence modification request is

adequately explained depends heavily on the facts of the case and the extent to which the district

court’s reasoning can be inferred from the existing record. In Curry, we considered a one-page

order denying a sentence modification request. The defendant was serving a below-guidelines

75-month sentence, and his amended guidelines range was 70 to 87 months. Curry, 606 F.3d at


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United States v. Battles

325–26. The district court’s order stated that it had “reviewed the entire record, including the

parties’ recommendations,” and “considered all the relevant § 3553(a) factors and the Sentencing

Guidelines.” Curry, 606 F.3d at 331. The order was “cursory at best,” but we were able to

determine from the record that the district court “had already considered the relevant factors in

some depth at the original sentencing and the first resentencing under Booker.”2 Id. We

therefore concluded that, “[u]nder the circumstances,” there had been no abuse of discretion. Id.

       We reached a different conclusion in Howard. There, the defendant was serving a 97-

month sentence, which was at the bottom of his original guidelines range of 97-121 months.

Howard, 644 F.3d at 457. After the crack-cocaine guidelines were changed, he requested a

§ 3582(c)(2) reduction to 78 months, based on his amended guidelines range of 78-97 months.

Id. The district court delayed ruling on the request, among other reasons so that it could

“consider Howard’s future conduct.” Id. Eventually, the district court granted the motion, but

reduced the defendant’s sentence to 88 months, not 78 months. Id. In doing so, the district court

issued a form order stating only that its decision was made “taking into account the sentencing

factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable.” Id. at 460–61.

The district court “neither stated which of the § 3553(a) factors were applicable nor added any

explanation for its decision in the space provided for ‘additional comments.’” Id. at 461.

Further, the district court did not anchor its decision with reference to the record, nor did it

explain what effect, if any, the defendant’s conduct had on the outcome. See id. With so little to

go on, we concluded it was “impossible for us to ensure that the district court did not abuse its

discretion because the order shows only that the district court exercised its discretion rather than

showing how it exercised that discretion.” Id. at 461 (quoting United States v. Marion, 590 F.3d

       2
           United States v. Booker, 543 U.S. 220 (2005).


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United States v. Battles

475, 478 (7th Cir. 2009)) (emphasis in original; brackets removed). We therefore remanded for

further explanation. Id. at 461–62.

       That the adequacy of a district court’s explanation is fact- and case-specific is further

illustrated by United States v. Choummanivong, ___ F. App’x ___, No. 15–2420, 2016 WL

3626824 (6th Cir. July 7, 2016) (per curiam) and United States v. Brim, ___ F. App’x ___, No.

15-2582, 2016 WL 5799673 (6th Cir. Oct. 5, 2016).           Both cases involve the denial of a

§ 3582(c)(2) sentence modification request, and both cases involve the same standard form used

by the district court in this case. See Order Regarding Motion for Sentence Reduction Pursuant

to 18 U.S.C. § 3582(c)(2), United States v. Choummanivong, No. 1:12-cr-00273-4 (W.D. Mich.,

Nov. 9, 2015), ECF No. 234, PID 1239; Order Regarding Motion for Sentence Reduction

Pursuant to 18 U.S.C. § 3582(c)(2), United States v. Brim, No. 1:12-cr-00055-1 (W.D. Mich.,

Dec. 10, 2015), ECF No. 41, PID 176. In addition to the form language, the district court’s order

in Choummanivong stated only: “The Court chooses to exercise its discretion not to reduce the

sentence based on its review of the entire record.” In Brim, the order added only: “The Court

recognizes that Defendant is eligible for [a] reduction, but exercise[s] its discretion to deny [a]

reduction on the facts of this record.” In Choummanivong, we remanded for further explanation,

concluding that “[r]eviewing the record in this case . . . we can only speculate as to how the

district court reached its decision to deny the motion for a sentence reduction.” 2016 WL

3626824 at *1–*2 (emphasis added). On the other hand, in Brim we “carefully reviewed the

record before us” and found no abuse of discretion. 2016 WL 5799673 at *3–*4. There is no

distinction to be found between the orders we reviewed in Choummanivong and Brim; the




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United States v. Battles

differing outcomes must result, then, from the unique circumstances of each case and the

differences in the underlying record.3

                                                B.

       We therefore consider whether the district court adequately explained its decision in light

of the particular circumstances of this case. The district court’s order states that it considered

Battles’s motion, and took into account “the policy statement set forth at USSG § 1B1.10 and the

sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable . . . .”

(R. 139, PID 586.) By way of further explanation, the court stated:

               Defendant’s actual guideline range both before and after the Amendment
       782 is actually 240 months, the statutory mandatory minimum. Defendant’s
       original sentence was below the mandatory minimum because of a 5K motion that
       released it. Defendant later received the benefit of a Rule 35 reduction as well,
       reducing his sentence to 144 months. The Court agrees Defendant is eligible for
       further reduction on these facts, but the Court does not believe a further reduction
       is warranted based on the entire record, and so the Court exercises its discretion
       not to award a further reduction.

(Id.) This explanation is inadequate for three reasons.

       First, the district court did not address the government’s support for Battles’s request.

Based on the unique history of the case, the government asserted that “the most appropriate

resolution” of Battles’s request was the 116-month sentence recommended by the SMR. (R.

135, PID 580.) Of course, “[s]ection [] 3582 does not create a right to a reduced sentence.”

Curry, 606 F.3d at 330 (citation omitted). And therefore the district court was free to disregard

the recommendations of the probation department and the government.             The district court,

however, did have an obligation to “consider[] the [government’s] arguments” and articulate “a

       3
         In one case cited by Battles, the Second Circuit reached a similar conclusion. See
United States v. Christie, 736 F.3d 191, 196 (2d Cir. 2013) (“The failure to state reasons will not
always require a remand . . . because . . . the reasons for the district court’s actions may be
obvious from the history of the case.”).


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United States v. Battles

reasoned basis” for rejecting them. Howard, 644 F.3d at 460 (quotation omitted). That is

particularly true here, because Battles relied, in part, on the SMR in making his own arguments.

But the district court did not explain why it rejected the government’s recommendation. It

referenced Battles’s substantial assistance reductions and explained only that it would not “award

a further reduction” based on “the entire record.” (R. 139, PID 586.) In Curry, a nonspecific

reference to the record was sufficient because “the relevant factors” had been considered “in

some depth at the original sentencing and the first resentencing.” 606 F.3d at 331. But we find

nothing in the record that indicates the district court considered the effect Battles’s substantial-

assistance reductions would or should have on a § 3582(c)(2) request. The most we can infer is

that perhaps the district court felt that Battles’s sentence had already been reduced enough. But

Battles’s prior reductions arose out of the ongoing substantial assistance he provided to law

enforcement officials, and the guidelines make clear that defendants who have received

substantial assistance reductions remain eligible for § 3582(c)(2) reductions.           See USSG

§ 1B1.10(c). It is within a district court’s discretion to deny a § 3582(c)(2) reduction on the basis

that after two substantial-assistance reductions, a third reduction of any kind would result in an

unduly lenient sentence under the particular circumstances. But nothing in the record before us

provides a “reasoned basis” for such a decision here, and “it is impossible for us to ensure that

the district court did not abuse its discretion.” Howard, 644 F.3d at 459–60 (citations omitted).

       Second, the district court’s conclusion that Battles’s “actual guideline range both before

and after the Amendment 782 is actually 240 months, the statutory mandatory minimum,” is

incorrect. (R. 139, PID 586.) Sections 1B1.1(a) and 5G1.1(b) of the guidelines operated

together to set Battles’s original guidelines range at 240 months—the statutory minimum. But

because Battles was sentenced “below the statutorily required minimum sentence pursuant to a


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United States v. Battles

government motion to reflect the defendant’s substantial assistance to authorities,” the guidelines

instructed that his “amended guideline range shall be determined without regard to the operation

of § 5G1.1 . . . .” USSG § 1B1.10(c) (emphasis added). Thus, § 5G1.1(b) plays no role in

calculating Battles’s amended guidelines range, and his amended range was properly determined

by the SMR to be 135-168 months—not the 240-month statutory minimum. “A district court

necessarily abuses its sentencing discretion if it ‘commits a significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range.’” United States v. Bolds,

511 F.3d 568, 579 (6th Cir. 2007) (quoting Gall v. United States, 552 U.S. 38, 51 (2007))

(brackets removed). It is unclear to what extent, if any, this error affected the district court’s

decision to deny Battles’s motion.

       Third, as we recognized above, context matters. Where the record includes the

government’s or probation department’s arguments in favor of denying a § 3582(c)(2) motion or

for a lesser reduction than that sought by the defendant, this court is able to consider those

arguments in giving meaning to the district court’s broad reference to the record. But here, the

government and the SMR recommended that the court grant the motion and reduce Battles’s

sentence to 116 months. Thus, we are left to speculate why the district court found that the

previous reductions based on substantial assistance rendered any further reduction unwarranted.

                                               IV.

       For these reasons, we VACATE and REMAND for further proceedings consistent with

this opinion.




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