               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0540n.06

                                Nos. 09-4137, 09-4138, 09-4171
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                           Aug 04, 2011
                               FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )
v.                                              )   ON APPEAL FROM THE UNITED
                                                )   STATES DISTRICT COURT FOR THE
JERRELL J. EDWARDS, DARRYL T.                   )   NORTHERN DISTRICT OF OHIO
EDWARDS, and RAYMOND LAWSON,                    )
JR.,                                            )

       Defendants-Appellants.


Before: MOORE and GIBBONS, Circuit Judges, and BORMAN, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. In this consolidated case, defendants-appellants

Darryl Edwards, Jerrell Edwards, and Raymond Lawson, who were each convicted of possession

with intent to distribute approximately 133.9 grams of cocaine base (crack), appeal the district

court’s orders denying their motions for sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2).

Section 3582(c)(2) permits the district court to reduce the term of imprisonment for a “defendant

who has been sentenced . . . based on a sentencing range that has subsequently been lowered by the

Sentencing Commission.” After the defendants were sentenced, Amendment 706 to the United

States Sentencing Guidelines (“U.S.S.G” or “Guidelines”) reduced the base offense level for most

crack-cocaine offenses by two levels.      Although the defendants contended that they were



       *
       The Honorable Paul D. Borman, United States District Judge for the Eastern District of
Michigan, sitting by designation.
Nos. 09-4137, 09-4138, 09-4171
United States v. Jerrell Edwards, Darryl Edwards, Jr., & Raymond Lawson

consequently entitled to sentencing reductions, the district court denied their motions on the ground

that each defendant was sentenced pursuant to a 240-month statutory mandatory minimum sentence,

not the subsequently-amended Guidelines. For the reasons that follow, we affirm.

                                                   I.

        On November 19, 2003, a federal grand jury in the Northern District of Ohio returned a two-

count indictment charging Darryl Edwards, Jerrell Edwards, and Lawson with (1) conspiracy to

possess with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),

and 846 and (2) possession with intent to distribute approximately 133.9 grams of crack cocaine in

violation of §§ 841(a)(1) and 841(b)(1)(A). On January 23, 2004, the government filed informations

pursuant to 21 U.S.C. § 851(a)(1) and invoked the penalty enhancement provisions of § 841(b)(1)(A)

against each defendant based upon prior felony drug convictions. This penalty enhancement raised

the statutory minimum sentence for each defendant from 120 months’ to 240 months’ imprisonment

under § 841(b)(1)(A)(iii), as in effect at the time.1

        On January 27, 2004, all three defendants pled guilty to Count 2 of the indictment pursuant

to written plea agreements with the government, in which the parties stipulated that each defendant

had distributed between 50 to 150 grams of crack cocaine. As part of the pleas, the government

agreed to drop Count 1 of the indictment at sentencing and, provided that the defendant “fully

cooperate[d] with the government,” move for downward departure under 18 U.S.C. § 3553(e) and


       1
        In 2010, the Fair Sentencing Act took effect, raising the quantity of crack cocaine
necessary to trigger the 20-year statutory minimum sentence based upon a prior felony drug
conviction from 50 grams to 280 grams. Pub. L. No. 111–220, § 2(a)(1), 124 Stat. 2372 (Aug. 3,
2010), codified at 21 U.S.C. § 841(b)(1)(A)(iii).

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Nos. 09-4137, 09-4138, 09-4171
United States v. Jerrell Edwards, Darryl Edwards, Jr., & Raymond Lawson

U.S.S.G. § 5K1.1 for substantial assistance. This downward departure allowed the district court to

pierce the 240-month statutory minimum and impose a lower sentence.

       Following the guilty pleas, the probation office prepared presentence reports (“PSR”) for the

defendants, stating that each defendant faced a statutory mandatory minimum sentence of 240

months under the penalty enhancement provisions of § 841(b)(1)(A). Before the application of this

mandatory minimum, Lawson’s PSR assigned a total offense level of 29 and a recommended

sentencing range of 151 to 181 months’ imprisonment, which incorporated a base offense level of

32, a three-point reduction for acceptance of responsibility, and a criminal history category of VI.

However, the PSR further stated that “where a statutorily required minimum sentence is greater than

the maximum of the applicable guideline sentence, the statutorily required minimum sentence shall

be the guideline sentence pursuant to USSG § 5G1.1(b)” and “becomes the guideline sentencing

range.” In accordance with the plea agreement, the PSR also stated that at sentencing Lawson would

receive a four-point reduction for acceptance of responsibility and substantial assistance to the

government, thereby permitting sentencing below the 240-month mandatory minimum.

       The probation office stated that Jerrell Edwards and Darryl Edwards were also subject to the

240-month mandatory minimum based upon their prior felony drug convictions. Darryl Edwards’

PSR assigned a base offense level of 33, the first offense level that incorporated the mandatory

minimum sentence and his criminal history category of V. The PSR indicated that he would receive

a five-point reduction at sentencing for acceptance of responsibility and substantial assistance to the

government, resulting in an adjusted offense level of 28 and a recommended sentencing range of 130



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Nos. 09-4137, 09-4138, 09-4171
United States v. Jerrell Edwards, Darryl Edwards, Jr., & Raymond Lawson

to 162 months’ imprisonment. Jerrell Edwards’ PSR did not indicate the impact of his plea

agreement, which had been filed under seal.

        All three defendants were sentenced on April 1, 2004. At Lawson’s sentencing hearing, a

probation officer explained that, although Lawson’s total offense level was 32 because of the 240-

month statutory minimum, his adjusted offense level was 28 “by the application of 5K1.1 and the

three-level [reduction] for acceptance [of responsibility],” which resulted in a sentencing range of

140 to 175 months’ imprisonment. However, because the district court granted one of Lawson’s

objections to his criminal history category, resulting in a criminal history category of V, his ultimate

sentencing range was 130 to 162 months. The district court then imposed the minimum term of

imprisonment available under the Guidelines, sentencing Lawson to 130 months’ imprisonment and

five years of supervised release.

        Darryl Edwards and Jerrell Edwards also received below-minimum sentences. After the

district court granted the government’s motions for downward departure for acceptance of

responsibility and substantial assistance, Darryl Edwards had an adjusted offense level of 28 and a

criminal history category of V. The district court sentenced him to 130 months’ imprisonment and

five years of supervised release. Jerrell Edwards had an adjusted offense level of 30, a criminal

history category of IV, and a sentencing range of 135 to 168 months. He was sentenced to 135

months’ imprisonment and five years of supervised release.

        On November 1, 2007, Amendment 706 to the Sentencing Guidelines took effect and reduced

the base offense level for most crack-cocaine violations by two levels. U.S.S.G. app. C, amend. 706

(Nov. 1, 2007). In March 2008, Amendment 713 made Amendment 706 retroactive. Id., amend.

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Nos. 09-4137, 09-4138, 09-4171
United States v. Jerrell Edwards, Darryl Edwards, Jr., & Raymond Lawson

713 (Mar. 3, 2008). In light of these amendments, the defendants filed motions for sentencing

reduction pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10 on the grounds that Amendment

706 reduced their total offense levels by two points, that their amended sentencing range was 110

to 137 months, and that their sentences should be reduced to 110 months’ imprisonment.2

          On August 27, 2009, and September 15, 2009, the district court issued two orders denying

the defendants’ motions under this court’s precedent in United States v. Johnson, 564 F.3d 419 (6th

Cir. 2009). The court held that it lacked jurisdiction to grant the sentencing reductions because the

defendants were sentenced subject to the 240-month mandatory minimum and not under the

subsequently-amended crack cocaine Guidelines. Thereafter, all defendants filed timely notices of

appeal.

                                                     II.

          We typically review a district court’s decision denying a motion for sentence reduction for

an abuse of discretion. United States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010); see also United

States v. Daniels, No. 09-3863, 2011 WL 1564061, at *2 (6th Cir. April 27, 2011). However,

“whether a district court lacks the authority to reduce a defendant’s sentence is a question of law we

review de novo.” Curry, 606 F.3d at 327; see also United States v. Wiley, No. 09-4545, 2011 WL


          2
              18 U.S.C. § 3582(c)(2) provides:

          [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, after considering the factors set forth in
          section 3553(a) to the extent that they are applicable, if such a reduction is consistent
          with applicable policy statements issued by the Sentencing Commission.

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Nos. 09-4137, 09-4138, 09-4171
United States v. Jerrell Edwards, Darryl Edwards, Jr., & Raymond Lawson

1441915, at *2 (6th Cir. April 15, 2011); Daniels, 2011 WL 1564061, at *2. Here, because the

district court held that it lacked jurisdiction to reduce the defendants’ sentences under this court’s

precedent in Johnson, we apply de novo review.

        A defendant’s sentence may not be modified except as provided by statute. Johnson, 564

F.3d at 421. Section 3582(c)(2) permits a sentence modification “in 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.” 18 U.S.C. § 3582(c)(2). But, this modification is

permissible only if the “reduction is consistent with applicable policy statements issued by the

Sentencing Commission.” Id.

        The relevant policy statement is provided in U.S.S.G. § 1B1.10, which states, in pertinent

part:

        (1) In General.—In a case in which a defendant is serving a term of imprisonment,
        and the guideline range applicable to that defendant has subsequently been lowered
        as a result of an amendment to the Guidelines Manual . . . the court may reduce the
        defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2) . . . . [A]ny
        such reduction in the defendant’s term of imprisonment shall be consistent with this
        policy statement.

        (2) Exclusions.—A reduction in the defendant’s term of imprisonment is not
        consistent with this policy statement and therefore is not authorized under 18
        U.S.C. § 3582(c)(2) if—
        ...

        (B) [A]n amendment . . . does not have the effect of lowering the defendant’s
        applicable guideline range.

U.S.S.G. § 1B1.10(a)(1)–(2)(B). The application notes clarify that a reduction in the defendant’s

term of imprisonment is neither authorized by § 3582(c)(2) nor consistent with the policy statement


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Nos. 09-4137, 09-4138, 09-4171
United States v. Jerrell Edwards, Darryl Edwards, Jr., & Raymond Lawson

in § 1B1.10 if “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).” U.S.S.G. § 1B1.10 cmt. n.1 (2008). Thus, taking into

account the provisions of § 3582(c) and § 1B1.10, “a defendant may be eligible for a sentence

reduction when (i) he has been sentenced ‘based on’ a Guidelines range that subsequently has been

lowered and (ii) the Guidelines range ‘applicable to’ the defendant has been lowered as a result of

an amendment listed in § 1B1.10(c).” United States v. Maxwell, 391 F. App’x 446, 449 (6th Cir.

2010).

                                                  A.

         All three defendants contend that they were eligible for sentencing reductions under

§ 3582(c)(2) because the district court relied upon sentencing ranges derived from the crack-cocaine

Guidelines after it granted the government’s 18 U.S.C. 3553(e) /§ 5K1.1 motion for downward

departure for substantial assistance and because their sentences were therefore “based on” these

subsequently lowered Guidelines. The government, in turn, maintains that the defendants’ sentences

were “based on” the 240-month mandatory minimum imposed under 21 U.S.C. §§ 841(b)(1)(A) and

851, which remains unchanged by Amendment 706.

         To determine whether a defendant’s sentence was “based on” a Guidelines range that was

subsequently lowered, this court evaluates “what the district court actually said and did at the

original sentencing.” United States v. Hameed, 614 F.3d 259, 264 (6th Cir. 2010) (quoting United

States v. Hargrove, 628 F. Supp. 2d 241, 244 (D. Mass. 2009)). However, to prevail upon a claim

alleging entitlement to a sentencing reduction under § 3582(c)(2), the defendant must also show that

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Nos. 09-4137, 09-4138, 09-4171
United States v. Jerrell Edwards, Darryl Edwards, Jr., & Raymond Lawson

this subsequently lowered Guidelines range was “applicable to” his sentence. Id. at 268–69; see also

Maxwell, 391 F. App’x at 450. To satisfy this inquiry, this court “look[s] to whether the sentencing

framework established by statute and the Guidelines permits or requires consideration of that range

in determining the defendant’s final sentence.” Daniels, 2011 WL 1564061, at *3 (citing Hameed,

614 F.3d at 268–69).

       Although the defendants contend that their sentences were, in fact, “based on” the

subsequently lowered crack cocaine Guidelines, we need not address this argument because the

defendants have not alleged, much less proven, that any Guidelines range lowered by Amendment

706 was “applicable to” their sentences. See Maxwell, 391 F. App’x at 449–50 (finding it

unnecessary to address the “based on” requirement when the subsequently lowered Guidelines range

was not “applicable to” the defendant, who was subject to a mandatory minimum sentence); see also

Wiley, 2011 WL 1441915, at *2 (stating that the court “need not determine whether the

sentence . . . was ‘based on’ the crack cocaine guidelines because . . . the sentencing range lowered

by Amendment 706 was not the defendant’s ‘applicable guideline range’”).

       In Maxwell, defendant Maxwell sought a sentence reduction under § 3582(c)(2) after

pleading guilty to various crack cocaine offenses. 391 F. App’x at 447. Like the defendants here,

Maxwell faced a mandatory minimum sentence due to his prior felony drug convictions, was granted

a downward departure for substantial assistance, and received a below-minimum sentence within the

otherwise-applicable Guidelines range of 292 to 365 months. Id. at 448. After the district court

denied Maxwell’s § 3582(c)(2) motion, we affirmed that judgment, reasoning that the Guidelines

range of 292 to 365 months “was not ‘applicable to’ Maxwell because his two previous felony drug

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Nos. 09-4137, 09-4138, 09-4171
United States v. Jerrell Edwards, Darryl Edwards, Jr., & Raymond Lawson

convictions rendered him subject to a statutorily mandated minimum sentence of life imprisonment.”

Id. at 450; see also Daniels, 2011 WL 1564061, at *3 (“Amendment 706 did lower the Guidelines

range that would have been applicable to Daniels, but for the 60-month statutory minimum.

However, because he was subject to that minimum, the minimum itself became his ‘applicable’

Guideline range.”) We also concluded that the range of 292 to 365 months was not “applicable to”

the district court’s calculation of Maxwell’s downward departure because “the appropriate starting

point for calculating a downward departure under 18 U.S.C. § 3553(e) is the mandatory minimum

sentence itself.” Maxwell, 391 F. App’x at 450 (quoting United States v. Stewart, 306 F.3d 295, 332

(6th Cir. 2002)). Thus, “application of the subsequently lowered Guidelines range was neither

permitted nor required in calculating the mandatory minimum sentence or the downward departure

from it.” Id.

       In this case, the defendants each faced a 240-month mandatory minimum sentence based

upon a prior felony drug conviction, but they were sentenced below this minimum following the

government’s motions for downward departure for substantial assistance. Consequently, Lawson

and Darryl Edwards each had an adjusted offense level of 28, a criminal history category of V, and

a sentencing range of 130 to 162 months. Jerrell Edwards had an adjusted offense level of 30, a

criminal history category of IV, and a sentencing range of 135 to 168 months. These ranges, as the

defendants argue, have been modified by Amendment 706.

       Nevertheless, as we held in Maxwell, Lawson, Darryl Edwards, and Jerrell Edwards are not

entitled to sentencing reductions because the imprisonment ranges of 130 to 162 months and 135 to

168 months were not “applicable to” them, given that each defendant was sentenced subject to the

                                                -9-
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United States v. Jerrell Edwards, Darryl Edwards, Jr., & Raymond Lawson

240-month mandatory minimum, then required by § 841(b)(1)(A). See, e.g., Daniels, 2011 WL

1564061, at *3 (noting that because the defendant “was subject to that [statutory] minimum, the

minimum itself became his ‘applicable’ Guidelines range”). Thus, “without the substantial-

assistance departure, [the] mandatory minimum controlled instead” and served as the Guidelines

range applicable to the defendants. Id.; see also Johnson, 564 F.3d at 423 (rejecting an analogous

claim for sentencing reduction by a defendant who faced a 240-month mandatory minimum sentence

but who was sentenced to 108 months’ imprisonment after the government moved for a substantial

assistance departure because “the amended Guidelines would still require a sentence of 240 months,

and the court would be departing from this same 240-month baseline if again presented with the

government’s substantial assistance motion”).

       The court notes that the Fair Sentencing Act of 2010 (“FSA”), Pub. L. 111-220, effective

November 1, 2010, increased the crack cocaine quantity threshold required to trigger the 5-year

mandatory minimum term of imprisonment from 5 grams to 28 grams, and the quantity threshold

to trigger the 10-year mandatory minimum threshold from 50 grams to 280 grams.                See

21 U.S.C. §§ 841(b)(1)(A), (B), (C); 960(b)(1), (2), (3). The FSA did not contain a provision that

these statutory changes were to be applied retroactively.

                                                B.

       The defendants also argue that the district court failed to weigh the sentencing factors

enumerated in 18 U.S.C. § 3553(a) and therefore contravened the Supreme Court’s precedent in

United States v. Booker, 543 U.S. 220 (2005), and its progeny by treating the Guidelines as

mandatory. However, this argument was recently foreclosed by Dillon v. United States, 130 S. Ct.

                                                -10-
Nos. 09-4137, 09-4138, 09-4171
United States v. Jerrell Edwards, Darryl Edwards, Jr., & Raymond Lawson

2683, 2691 (2010). In Dillon, the Supreme Court stated that § 3582(c)(2) “establishes a two-step

inquiry,” in which “[a] court must first determine that a reduction is consistent with § 1B1.10 before

it may consider whether the authorized reduction is warranted, either in whole or in part, according

to the factors set forth in § 3553(a).” Id.; see also United States v. Grant, 636 F.3d 803, 815 (6th Cir.

2011) (en banc) (stating that in Dillon, “the Supreme Court held that Booker does not apply to

sentence reductions under 18 U.S.C. § 3582(c)(2)”).

        Here, because Amendment 706 did not reduce the Guidelines range “applicable to” the

defendants, a sentencing reduction was not consistent with § 1B1.10. Thus, under Dillon, the district

court had no authority to evaluate whether a reduction was warranted under § 3553(a), and it did not

err in rejecting the defendants’ motions for sentencing reduction under § 3582(c)(2). See United

States v. Watkins, 625 F.3d 277, 282 (6th Cir. 2010) (stating that, in light of the Supreme Court’s

decision in Dillon, “the district court correctly held that because the requirements of section 1B1.10

were not met . . . it did not have the authority to permit a sentence reduction under section

3582(c)(2)”).

                                                  III.

        For the foregoing reasons, we affirm the district court.




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