                                                     PRECEDENTIAL



                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                             ________

                                 No. 12-1482
                                 _________

                      UNITED STATES OF AMERICA

                                      v.

                            JOSE ORTIZ-VEGA,
                                          Appellant
                                 ________

                On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                          (D.C. No. 2-04-cr-00015-001)
                District Judge: Honorable Eduardo C. Robreno
                                     _______

                  Submitted Under Third Circuit LAR 34.1(a)
                             December 12, 2013

Before: MCKEE, CHIEF JUDGE, FUENTES, and SLOVITER, Circuit Judges

                           (Filed: March 12, 2014)
Mark E. Coyne, Esq.
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

Bernadette A. McKeon, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

                           Counsel for Appellee

Sarah S. Gannett, Esq.
Christy Unger, Esq.
Federal Community Defender Office for the
Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

                           Counsel for Appellant




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                     _____________

                      OPINION
                     _____________


Sloviter, Circuit Judge.

        This case involves a novel question as to when a
reduction in sentence based on retroactive changes to the
sentencing guidelines for crack cocaine is applicable. Jose
Ortiz-Vega appeals his 108 month sentence for cocaine base
(“crack”) offenses. Ortiz-Vega argues that he is eligible for a
sentence modification under 18 U.S.C. § 3582(c)(2) in light
of retroactively applicable modifications to the federal
Sentencing Guidelines dealing with crack cocaine offenses.
For the reasons given below, we reverse the District Court’s
denial of Ortiz-Vega’s request for sentence modification, and
remand for further consideration in light of our decision.1




1
  The District Court had subject matter jurisdiction pursuant
to 18 U.S.C. § 3231, and had jurisdiction to consider Ortiz-
Vega’s motion for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2). We have jurisdiction pursuant to 28 U.S.C. §
1291. We exercise plenary review of a district court’s
conclusions regarding the scope of its authority under 18
U.S.C. § 3582(c). United States v. Mateo, 560 F.3d 152, 154
(3d Cir. 2009).




                               3
                              I.

        Ortiz-Vega pled guilty to multiple counts of crack
cocaine possession and distribution, as well as possession of a
firearm in furtherance of a drug trafficking offense. The
District Court sentenced him on July 6, 2004 to 108 months
imprisonment on the drug charges, a mandatory 60 months, to
be served consecutively, on the firearm count, and 10 years of
supervised release, all sentences suggested by the government
in the plea agreement.

       Various statutory provisions were applicable to Ortiz-
Vega’s sentence. The Sentencing Guidelines called for a
sentence of 97-121 months on the drug charges, and the gun
offense carried a mandatory consecutive sentence of 60
months. 18 U.S.C. § 24(c)(1)(A)(I). Additionally, the drug
charges carried, at the time, a mandatory minimum penalty of
120 months. 21 U.S.C. § 841(b)(1)(A)(iii) (2006) (since
amended several times, most recently in 2010). This ought to
have led to a sentencing range for Ortiz-Vega of 120-121
months. However, the mandatory minimum sentence was not
asked for by the government, and was not applied by the
District Court. The District Court sentenced Ortiz-Vega to
108 months on the drug charge, and the government did not
challenge this, seek resentencing, or appeal within the
relevant periods.

        In 2010, the Fair Sentencing Act (“FSA”) was passed
by Congress, seeking to “restore fairness to Federal Cocaine
sentencing” by lowering the mandatory minimum penalties
for distributing crack cocaine. Fair Sentencing Act of 2010,
Pub. L. 111-220, § 2, 124 Stat. 2372 (2010). The FSA
reduced the disparity in quantities triggering mandatory




                              4
minimum sentences between crack cocaine and powder
cocaine from 100:1 to approximately 18:1. Congress gave
the Federal Sentencing Commission authority to promulgate
new guidelines to conform the Sentencing Guidelines with
the FSA’s new penalty ratios. The new guideline, U.S.S.G.
App. C, amd. 750, was promulgated in 2010, and made
retroactive, effective November 1, 2011. See U.S.S.G. App.
C, amd. 759. Under the new, retroactive Guidelines, the
offense level for the drug offenses in Ortiz-Vegas’ case would
be 30. With the relevant upward and downward adjustments
already established, this would lead to a Guideline range of
78-97 months rather than 97-121 months for Ortiz-Vega. See
U.S.S.G. Ch. 5, Pt. A (Sentencing Table).

        In the sentence modifications proceedings before the
District Court, the government argued, and the District Court
accepted, that Ortiz-Vega was not eligible for a sentence
reduction because such a reduction was blocked by operation
of the 120 month mandatory minimum sentence that should
have been, but was not, applied to Ortiz-Vega. This decision
was at least arguably consistent with the controlling precedent
in this circuit at the time, United States v. Doe, 564 F.3d 305,
309 (3d Cir. 2009). Not long after the District Court denied
Ortiz-Vega’s request for a sentence modification, however,
this court, in United States v. Savani, 733 F.3d 56, 58 (3d Cir.
2013), held that Doe had been superseded by the 2010
amendments to the Sentencing Guidelines. Ortiz-Vega
appealed.
                                 II.

       This appeal presents the novel question of whether a
defendant, who would otherwise be eligible for a sentence
reduction based on a change in Guideline ranges, is rendered




                               5
ineligible for the reduction by a relevant mandatory minimum
sentence, despite the fact that the mandatory minimum was
not actually applied in his or her case.

       18 U.S.C. § 3582(c)(2) governs modification of
sentences in the case that a sentencing guideline has been
changed. It provides an exception to the normal rule, 18
U.S.C.§ 3582(c), that a court may not modify a term of
imprisonment once it has been imposed. The exception
provides:

    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 pursuant to 28 U.S.C. 994(o), upon
    motion of the defendant or the Director of the Bureau
    of Prisons, or on its own motion, the court may
    reduce the term of imprisonment, after considering
    the factors set forth in section 3553(a) to the extent
    they are applicable, if such a reduction is consistent
    with applicable policy statements issued by the
    Sentencing Commission.

18 U.S.C. § 3582(c)(2).

       Following this rule would suggest that Ortiz-Vega
should be eligible for a sentence reduction, as he was
“sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission.” (App. 5, 10) However, a question arises here
as to whether such a reduction would be, in this case,
“consistent with the applicable policy statements issued by




                              6
the Sentencing Commission.” The District Court held that it
would not be.

        In relevant part, Application Note 1(A) to Section
1B1.10 of the Sentencing Commission’s policy statement
states that a sentence reduction under § 3582(c)(2) is “not
consistent with this policy statement if . . . (ii) an amendment
listed in subsection (c) is applicable to the defendant but the
amendment does not have the effect of lowering the
defendant’s applicable guideline range because of the
operation of another statutory provision (e.g., a statutory
mandatory minimum term of imprisonment).” These policy
statements are binding on the courts. See Dillon v. United
States, 560 U.S. 817, 821 (2010) (“Any reduction must be
consistent with applicable policy statements issued by the
Sentencing Commission.”).

         The District Court, taking its lead from our decision in
Doe, held that this policy statement rendered Ortiz-Vega
ineligible for a sentence reduction because the “operation of .
. . a statutory mandatory minimum term of imprisonment”
applied to him. In such a case, the District Court held, the
“mandatory minimum sentence subsumes and becomes the
applicable guideline range for the Defendant.” (App. 17
(citing Doe, 564 F.3d at 312)) Because the District Court
held that the policy statement ruled out reducing Ortiz-Vega’s
sentence, it did not directly consider so-called “Step One” in
the § 3582(c)(2) analysis, addressing whether or not Ortiz-
Vega’s sentence was “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.”

       The District Court, in denying Ortiz-Vega’s motion for
sentence reduction, relied on our decision in Doe. However,




                               7
in the time after the District Court’s decision, this court held
that Doe was superseded by statute. While, under Doe, the
court understood the Sentencing Commission policy
statement to require treating a mandatory minimum sentence
as the “applicable guideline range” whether or not the
mandatory minimum was actually applied to the particular
defendant, in Savani we held that this interpretation had been
foreclosed by revisions to the guideline commentary. Savani,
733 F.3d at 62. After the November 2011 revisions to the
Guidelines, the commentary to § 1B1.10 now defines
“applicable guideline range” as “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 provisions in the
Guidelines Manual or any variance.” U.S.S.G § 1B1.10,
Comment (n.1(A)) (Nov. 2011). This suggests that
“applicable guideline range” in § 1B1.10 means the
sentencing range corresponding to the defendant’s offense
level and criminal history category, not in terms of a
mandatory minimum sentence if the mandatory minimum was
not actually applied. Savani, 733 F.3d at 62, 65.

       After Savani, the District Court’s justification for
denying Ortiz-Vega’s request for sentencing modification is
no longer applicable. The government, however, asks us to
distinguish this case from Savani on the grounds that the
defendants in Savani were given sentences below the
otherwise applicable mandatory minimum sentence because
of substantial assistance departures, while this was not so in
Ortiz-Vega’s case. While not a complete non sequitur, this
argument is not, in the end, convincing. The plausible part of
the government’s argument is that substantial assistance is
one of the few explicit reasons for imposing a sentence below




                               8
the statutory mandatory minimum authorized by 18 U.S.C. §
3553(e). Imposing a sentence below the mandatory minimum
is rarely, if ever, authorized on other grounds. But, the
commentary language itself does not provide the limitation
the government seeks, and we see no reason to read it back
into the rule itself. The reason for not imposing a mandatory
minimum sentence may be relevant when a district court
decides whether to exercise discretion in granting a
modification of sentence or not, but is not a part of the
comment language itself, and it would be inappropriate to add
this requirement on our own.

                             III.

       The District Court decided that Ortiz-Vega was not
eligible for a sentence modification under § 3582(c)(2) on the
ground that such a modification would not be “consistent with
applicable policy statements issued by the Sentencing
Commission.” (App. 16) Because the District Court wrongly
held that Ortiz-Vega was not eligible for modification under
this “Step Two” analysis, it did not address Step One. We,
however, must consider Step One. This requires that the
defendant have 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).

         The government here contends that, even though it was
not actually applied to Ortiz-Vega, he was nonetheless
“subject to” the mandatory minimum sentence, and therefore
his sentence was not “based on a sentencing range that has
subsequently been lowered.” Ortiz-Vega contends that, while
it is true that the mandatory minimum should have been




                              9
applied, it was not, and he was therefore not “subject to” it,
and his sentence was therefore clearly “based on” a
sentencing range (the crack cocaine Guidelines) that were
subsequently changed. There is some plausibility to both
interpretations. There is a plausible sense of “subject to”
where Ortiz-Vega was “subject to” the mandatory minimum
sentence even though it was not actually applied, given that it
should have applied.

        However, the more plausible interpretation would
require that the mandatory minimum actually be applied —
that the defendant be subjected to it — for the defendant to be
ineligible for modification under Step One. This
interpretation fits better with the statutory language itself,
since if a defendant is subjected to a mandatory minimum, he
or she would not be given a sentence “based on a sentencing
range that has subsequently been lowered.” And, in Ortiz-
Vega’s actual case, it is quite clear from the District Court’s
sentencing hearing that he was given a sentence “based on a
sentencing range that has subsequently been lowered.” For
this reason, it is clear that Ortiz-Vega meets the requirements
for Step One, allowing him to seek a sentence modification.

                              IV.

        One additional basis for our decision that Ortiz-Vega
is eligible for a sentence modification must also be discussed.
While it is not completely clear why the mandatory minimum
was not applied to Ortiz-Vega, this omission is characterized
by the government and the District Court as a mistake or an
error. The government suggests that, in deciding whether to
grant a sentence modification to Ortiz-Vega, we should act as
if the mandatory minimum were actually applied, and




                              10
therefore deny the modification. The District Court largely
agreed with this, holding that to grant a modification at this
point would be to “perpetuate [the] error” by “overlook[ing]
the statutory mandatory minimum twice.” (App. 21)

        As Ortiz-Vega convincingly argues, however, this is
almost exactly backwards. As the District Court itself noted,
prior sentencing errors cannot be modified in a § 3582(c)(2)
proceeding. This was confirmed by the Supreme Court,
which has stated unequivocally that a court may not revisit or
re-decide guideline applications during a § 3582(c)(2)
proceeding, but rather must work only with the sentence
actually imposed. See Dillon, 560 U.S. at 831. The large
majority of cases that have addressed this issue have
considered errors that went against the defendant. But, there
is no reason why this principle should apply only when it
goes against defendants, and not when it benefits them, and
nothing in the relevant court decisions would support such an
interpretation. As odd as it may seem, “perpetuating an
error” is exactly what is required by Dillon in a case like this.
The District Court was therefore incorrect to use the past
error as a reason to deny a sentence modification.

                               V.

       The FSA not only called for change in the crack
cocaine sentencing guidelines, it also lowered several
mandatory minimum sentences. If Ortiz-Vega had been
convicted of the same crimes after the passage of the FSA, he
would have faced a 60 month mandatory minimum, rather
than the 120 months that should have applied to him. See 21
U.S.C. § 841(b)(1)(A) & (B), as amended by Pub. L. 111-220
(2010). Ortiz-Vega argues that, if he is subject to a




                               11
mandatory minimum, it ought to be to the post-FSA
mandatory minimum, a sentence that would be below his
applicable guideline sentence. Unlike his earlier arguments,
this argument is without merit. The FSA mandatory
minimum was not made retroactive, and this court, and every
other court of appeals to consider the issue, has held that the
FSA mandatory minimums do not apply to defendants who
committed their offenses and were sentenced prior to the
enactment of the FSA in August, 2010. See United States v.
Reevey, 631 F.3d 110, 115 (3d Cir. 2010).

        However, the fact that the FSA significantly lowered
the mandatory minimum that someone like Ortiz-Vega would
be subject to if his crime had taken place today may still have
some relevance for this case. The final decision as to whether
to grant a sentence modification is a discretionary decision for
the district court, even if a defendant qualifies for a
modification under § 3582(c)(2). This discretionary element
is signaled by the language in § 3582(c)(2) that says “the
court may reduce” the sentence (emphasis added). The fact
that the FSA has cut in half the mandatory minimum that
someone like Ortiz-Vega would be sentenced to today surely
tells in favor of exercising discretion in his favor to reduce his
sentence. The government suggests that the District Court
had signaled that it would not exercise discretion in favor of
Ortiz-Vega, and implies that this gives us further grounds to
uphold the sentence. Because the District Court found that it
lacked authority to modify Ortiz-Vega’s sentence, the
question of the District Court’s exercise of discretion in this
case was not before us. We will therefore remand so that the
District Court can exercise its discretion.




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                             VI.

        This case presents an interaction of complex statutes,
policy statements, and confused prior proceedings, making
for a difficult and perhaps unique pattern. However, for the
reasons given above, we find that Ortiz-Vega is eligible for a
sentence modification under 18 U.S.C. § 3582(c)(2), and
remand to the District Court for further proceedings
consistent with this decision.




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