                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 14a0080p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                      No. 12-3730
          v.
                                                  ,
                                                   >
                                                  -
                         Defendant-Appellant. -
 BRYON TAYLOR,
                                                 N
                   Appeal from the United States District Court
                 for the Northern District of Ohio at Youngstown.
             No. 4:03-cr-00422-1—Donald C. Nugent, District Judge.
                                      Argued: June 11, 2013
                              Decided and Filed: April 18, 2014
    Before: BOGGS and DONALD, Circuit Judges; and STAMP, District Judge.*

                                       _________________

                                             COUNSEL
ARGUED: Jeffrey B Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant. Ian D. Hoffman, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Jeffrey B Lazarus, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Ian D.
Hoffman, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
    BOGGS, J., delivered the opinion of the court, in which STAMP, D.J., joined.
DONALD, J. (pp. 9–19), delivered a separate dissenting opinion.




         *
         The Honorable Frederick P. Stamp, Jr., United States District Judge for the Northern District of
West Virginia, sitting by designation.


                                                   1
No. 12-3730        United States v. Taylor                                      Page 2


                                 _________________

                                      OPINION
                                 _________________

       BOGGS, Circuit Judge. In 2004, defendant-appellant Bryon Taylor pled guilty
to conspiracy to distribute and to possess, with intent to distribute, 392.2 grams of
cocaine base (crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and
846. Although Taylor was subject to a 240-month statutory minimum penalty, the
government moved for a downward departure based on substantial assistance, and
Taylor was sentenced to 151 months of imprisonment and five years of supervised
release. Following the Fair Sentencing Act of 2010 and the corresponding crack-
cocaine-guideline amendments implemented by Amendment 750, Taylor moved for a
sentence reduction under 18 U.S.C. § 3582(c)(2). The district court denied Taylor’s
motion, and Taylor now appeals. For the reasons that follow, we affirm the district
court’s order.

                                             I

       Taylor pled guilty to conspiracy to distribute and to possess, with intent to
distribute, 392.2 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. At the time of Taylor’s sentencing in 2004, offenses involving
more than 50 grams of crack cocaine carried a statutory minimum penalty of 10 years
of imprisonment and, for a defendant who had “a prior conviction for a felony drug
offense [that had] become final,” the minimum penalty increased to 20 years’
imprisonment. See 21 U.S.C. § 841(b)(1)(A) (2004). The government filed a sentencing
enhancement, pursuant to 21 U.S.C. § 851, indicating that Taylor had a prior conviction
for a felony drug offense and that he thus was subject to the statutory minimum penalty
of 240 months’ imprisonment.

       In Taylor’s plea agreement, the parties agreed that Taylor had a base offense
level of 34 and a criminal-history category of VI and that the government would
recommend a two-level reduction for acceptance of responsibility. Accordingly, Taylor
No. 12-3730            United States v. Taylor                                                    Page 3


had a final base offense level of 32 and a corresponding guideline range—as determined
from the § 5A Sentencing Table—of 210–262 months.1 See U.S.S.G. § 5A (2004). The
lower limit of this range was increased to 240 months by virtue of the statutory minimum
to which Taylor was subject. See U.S.S.G. §§ 1B1.1(h) & 5G1.1(c) (2004). The
government agreed to move for a downward departure based on Taylor’s substantial
assistance, allowing him to be sentenced below the statutory minimum. At Taylor’s
sentencing, the district judge granted the motion for a substantial-assistance departure,
but rather than using Taylor’s 240-month statutory minimum as the starting point for his
downward departure, cf. United States v. Stewart, 306 F.3d 295, 332 (6th Cir. 2002)
(holding that the statutory mandatory minimum is the appropriate starting point from
which to calculate a downward departure for substantial assistance), the district judge
simply subtracted an additional three levels from Taylor’s base offense level2 —resulting
in a new base offense level of 29 and a guideline range of 151–188 months—and
sentenced him to 151 months of imprisonment, the bottom of that range.

         Years later, the Fair Sentencing Act of 2010 (FSA) increased the quantity of
crack cocaine required to trigger the 20-year statutory minimum to which Taylor was
subject from 50 grams to 280 grams. See 21 U.S.C. § 841(b)(1)(A) (2013). But Taylor’s
crime involved 392.2 grams of crack cocaine, and thus he would still have been subject
to the same statutory minimum even if he had been sentenced after passage of the FSA.
However, the 2011 crack-cocaine guideline amendments, also prompted by the FSA, did
lower the § 2D1.1 base offense levels for crack-cocaine offenses and thus also lowered
the § 5A guideline range to which Taylor would have been subject absent the existence
of a statutory minimum. See U.S.S.G. Amend. 750. Taylor relied on this change in
moving to modify his sentence pursuant to 18 U.S.C. § 3582(c).

         1
          Throughout this opinion, the term “§ 5A guideline range” is used to describe the guideline range
derived from the Sentencing Table in § 5A that corresponds to a defendant’s base offense level (factoring
in any relevant adjustments) and criminal-history category before incorporating any relevant statutory
minimum.
         2
           The use of Taylor’s base offense level and corresponding § 5A guideline range—rather than his
statutory minimum—as the starting point for calculating his substantial-assistance reduction appears to
have occurred at the request of the parties. In Taylor’s plea agreement, the government initially proposed
a one-level reduction for substantial assistance. The district judge then determined, however, that given
the extent of Taylor’s cooperation, a reduction of three levels was more appropriate.
No. 12-3730        United States v. Taylor                                        Page 4


       The district court denied Taylor’s request for a sentence reduction, holding that
Amendment 750 did not have the effect of lowering Taylor’s “applicable guideline
range,” and Taylor now appeals.

                                             II

       Normally, this court reviews a district court’s denial of a motion to modify a
sentence under 18 U.S.C. § 3582(c)(2) for abuse of discretion. See United States v.
Moore, 582 F.3d 641, 644 (6th Cir. 2009). However, where a district court concludes,
as it did here, that it lacks the authority under 18 U.S.C. § 3582(c)(2) to reduce a
defendant’s sentence, such a conclusion is a question of law that this court reviews de
novo. See United States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010).

       Under 18 U.S.C. § 3582(c)(2), a defendant is eligible for a sentence reduction if:
(1) the defendant “has been sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing Commission”; and (2) such
reduction is “consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c). We have clarified that to satisfy the second
requirement, “a guidelines amendment must ‘have the effect of lowering the defendant’s
applicable guideline range.’” United States v. Hameed, 614 F.3d 259, 269 (6th Cir.
2010) (Moore, J.) (quoting U.S.S.G. § 1B1.10(a)(2)(B)); see also United States v.
Pembrook, 609 F.3d 381, 383 (6th Cir. 2010). Taylor claims that Amendment 750,
which lowered the § 2D1.1 base offense levels for crack-cocaine offenses, entitles him
to a sentence reduction under § 3582(c). Assuming without deciding that Taylor’s
sentence was based on § 2D1.1 and thus that he satisfies the first requirement for
§ 3852(c) sentence-reduction eligibility, Taylor’s appeal fails, as Amendment 750 does
not have the effect of lowering his “applicable guideline range.”

       Amendment 759 did, for the first time, provide an express definition for the term
“applicable guideline range.” It did so by amending Application Note 1(A) to U.S.S.G.
§ 1B1.10 to read: “applicable guideline range (i.e., 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
No. 12-3730        United States v. Taylor                                         Page 5


Manual or any variance).” U.S.S.G. § 1B1.10 cmt. n.1(A). In support of his sentence-
reduction motion, Taylor argues that this new language indicates that all provisions of
§ 1B1.1(a) except § 1B1.1(a)(8)—the subsection that specifically incorporates any
relevant statutory minimum—should be included in the definition of “applicable
guideline range.” As we recently held in United States v. Joiner, 727 F.3d 601, 606 (6th
Cir. 2013), however, “the Application Note makes clear that the ‘applicable guideline
range’ is the range that results from applying § 1B1.1(a) in its entirety, including
incorporation of any relevant statutory minimum.” Thus, Taylor’s argument that the
Application Note is somehow intended to exclude the portion of § 1B1.1(a) that accounts
for his statutory minimum is not well taken.

       Thus, employing the definition of “applicable guideline range” adopted in Joiner,
Amendment 750 does not have the effect of lowering Taylor’s “applicable guideline
range.” At the time of his original sentence and prior to Amendment 750, Taylor had
a base offense level of 32 (after a two-level reduction for acceptance of responsibility)
and a criminal-history category of VI, corresponding to § 5A guideline range of 210–262
months. But, as mentioned above, his statutory minimum of 240 months required that
his ultimate “applicable guideline range” be 240–262 months. After calculating this
range, the district judge departed below this range based on the government’s motion for
substantial assistance, sentencing Taylor to 151 months’ imprisonment.

       After Amendment 750, the base offense level corresponding to the quantity of
drugs involved in Taylor’s crime would now be 32 (rather than 34), less two levels for
acceptance of responsibility. Thus, with a base offense level of 30 and a criminal-history
category of VI, Taylor’s amended § 5A guideline range would now be 168–210 months.
Because his statutory-minimum penalty remains 240 months, however, his “applicable
guideline range” is now simply 240 months.

       While at first blush, it may seem that Taylor’s current “applicable guideline
range”—240 months—is different than his earlier one, which ranged from 240 to 262
months, for the purposes of Taylor’s substantial-assistance departure, his current 240-
month “applicable guideline range” is not lower. In Hameed, we noted that “the
No. 12-3730        United States v. Taylor                                          Page 6


appropriate starting point for calculating a downward departure under 18 U.S.C.
§ 3553(e) is the mandatory minimum sentence itself.” Hameed, 614 F.3d at 268
(internal quotation marks omitted). Thus, in the case of a defendant who received a
departure for substantial assistance, a change in the upper bound of his “applicable
guideline range” does not lower that range for the purpose of his substantial-assistance
departure, as the departure should be taken solely from the statutory minimum, i.e., the
lower bound that was not reduced.

       This is true even when, as was the case at both Hameed’s and Taylor’s original
sentencings, the sentencing judge “accede[s] to the parties’ request that he take the base
offense level prescribed by § 2D1.1 as his starting point [for a substantial-assistance
departure]” rather than the statutory minimum, as “the [§ 5A] guideline range resulting
from [the § 2D1.1] base offense level was not ‘applicable’ because it was not the correct
point from which the departure should have been measured.” Ibid. “Nor were the crack
guidelines ‘applicable’ in determining the extent of the departure[, as] . . . only factors
relating to a defendant’s cooperation may influence the extent of a departure pursuant
to § 3553(e).” Id. at 268–69 (internal quotation marks omitted). Thus, a district judge’s
incorrect choice to start a substantial-assistance departure from the crack-cocaine
guidelines rather than the defendant’s “applicable guideline range” and, in particular, the
statutory minimum that forms the lower bound of the “applicable guideline range,” does
not change the fact that the “applicable guideline range” has not been lowered for a
defendant who was subject to a statutory minimum but received a substantial-assistance
departure.

       We note that the situation would be different for a defendant who was subject to
a statutory minimum but who did not receive a downward departure for substantial
assistance. For instance, if a defendant had an original “applicable guideline range” of
240–262 months, with the lower, 240-month bound resulting from a statutory minimum,
a subsequent amendment that changed his “applicable guideline range” to 240 months,
by shifting his amended § 5A guideline range completely below the 240-month
minimum, would have the effect of lowering his “applicable guideline range.” This is
No. 12-3730         United States v. Taylor                                          Page 7


so because the defendant, who, under his original “applicable guideline range,” could
possibly have been sentenced to a within-guideline sentence of anywhere from 240 to
262 months, can, at sentence reduction, only receive a “within-guideline” sentence of
240 months. In contradistinction, however, the defendant who received a substantial-
assistance departure has already been brought all the way down to the low end of his
“applicable guideline range,” i.e., the 240-month statutory minimum, from which the
judge has then chosen to depart.

        There is nothing anomalous or unfair about the “unhelpful” defendant who did
not provide substantial assistance being eligible for a sentence reduction and the
“helpful” defendant who did assist authorities coming up empty. The “helpful”
defendant has, before receiving the substantial-assistance departure itself, also enjoyed
the additional benefit of being dropped to the bottom of his “applicable guideline range,”
i.e., to his statutory minimum, as the starting point for a substantial-assistance departure
is the statutory minimum. Without a substantial-assistance motion, this would be the
lowest that the “helpful” defendant’s sentence could be, whether at his original
sentencing or a subsequent sentence-reduction proceeding. In other words, the “helpful”
defendant has bottomed out. On the other hand, the “unhelpful” defendant may not yet
have bottomed out at his statutory minimum and may be able to do so as a result of
subsequent amendments to the guidelines.           That the “helpful” and “unhelpful”
defendants bottom out at the same point is the intended effect of statutory minimums.
And of course, though the two defendants bottom out at the same point, the “helpful”
defendant still is rewarded for his assistance by receiving an additional departure below
the statutory minimum, which is applied at his original sentencing.

        Accordingly, if a defendant received a sentence below his statutory minimum
based on his substantial assistance and is still subject to the same statutory minimum that
set the floor of his “applicable guideline range” at the time of his original sentencing, it
cannot be said that a subsequent amendment to the sentencing guidelines has had the
effect of lowering his “applicable guideline range.” Given that Taylor is subject to the
No. 12-3730        United States v. Taylor                                        Page 8


same statutory minimum sentence as that in effect at the time of his original sentencing,
Amendment 750 does not have the effect of lowering his “applicable guideline range.”

                                             III

       For the foregoing reasons, we affirm the decision of the district court denying
Taylor’s motion for a sentence reduction under 18 U.S.C. § 3582(c).
No. 12-3730            United States v. Taylor                                                    Page 9


                                       _________________

                                           DISSENT
                                       _________________

         BERNICE B. DONALD, Circuit Judge, dissenting. The majority concludes that
Taylor’s appeal must fail, relying largely on this court’s prior decision in United States
v. Hameed, 614 F.3d 259 (6th Cir. 2010), for the proposition that Amendment 750 of the
Sentencing Guidelines does not have the effect of lowering Taylor’s “applicable
guideline range.” But times have changed since Hameed. Amendments 750 and 759 to
the Guidelines took effect on November 1, 2011, retroactively lowering the crack-
cocaine ranges in Guidelines § 2D1.1 and amending the policy statements. Under the
new policy statements, a statutory minimum must “operate” or be “required” in order to
have a role in the “applicable guidelines range.” The new policy statements also
expressly authorize re-sentencing below the amended ranges for defendants sentenced
pursuant to a substantial-assistance departure under 18 U.S.C. § 3553(e). Such a
departure renders the normal statutory minimums inoperative.                            See U.S.S.G.
§§ 1b1.10(b)(2), 1B1.10, cmt. 3. Our holding in Hameed, which concerned the policy
statements applicable to Amendment 706, therefore, is not relevant to the policy
statements under Amendment 759.

         Neither is the majority’s reliance on United States v. Joiner, in which a panel of
this court recently rejected the notion that a substantial-assistance departure under
§ 3553(e) prevents an otherwise applicable statutory minimum ever from being
incorporated into a defendant’s “applicable guidelines range,” 727 F.3d 601, 609 (6th
Cir. 2013), availing when at least three other circuits have reached the opposite
conclusion,1 and when a judge of this court concluded, within days of Joiner, that a


         1
           See United States v. Wren, 706 F.3d 861, 863 (7th Cir. 2013) (“[I]f § 5G1.1 did not affect the
original calculation, it does not come into play when a court considers the effect of a retroactive change
to the Guidelines.”); United States v. Savani, 733 F.3d 56, 58 (3d Cir. 2013) (“[D]efendants . . . 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).”); In re Sealed Case, 722 F.3d 361, 363 (D.C. Cir. 2013) (“This appeal asks
whether a crack offender sentenced below an otherwise applicable statutory minimum because he provided
substantial assistance to law enforcement is eligible for a sentence reduction under § 3582(c)(2). We hold
that he is.”).
No. 12-3730        United States v. Taylor                                       Page 10


substantial-assistance motion “effectively ‘waive[s]’ the mandatory minimum and
permit[s] the district court to impose a sentence based on the otherwise-applicable
guidelines range,” United States v. Doe, 731 F.3d 518, 528 (6th Cir. 2013) (Cole, J.,
concurring in part and concurring in the judgment). In the words of Judge Cole,
“Without a mandatory minimum at work, nothing prevents Amendment 750 from having
‘the effect of lowering’ the sentence the [defendant] did receive.” Id.

       Under Amendment 750, re-sentencing for those sentenced below the normal
statutory minimum pursuant to a § 3553(e) motion is consistent with the Sentencing
Commission’s policy statements. Accordingly, I would reverse and remand this matter
to the district court so that it may exercise its discretion to determine whether to re-
sentence Taylor. I must, therefore, respectfully dissent.

                                             I.

       The question of whether those who received a substantial-assistance departure
are eligible for re-sentencing relief under Amendment 750 has troubled and divided the
district courts. See, e.g., United States v. Mont, No. 4-05-CR-229, Dkt. 77 (N.D. Ohio,
Mar. 5, 2012) (granting relief); United Staes v. Stewart, No. 3:02-CR-78(3), 2012 U.S.
Dist. LEXIS 11316 (E.D. Tenn. Jan. 31, 2012) (granting re-sentencing relief under
Amendment 750 to a defendant sentenced below the statutory minimum for substantial
assistance); United States v. Young, No. 4:06-CR-270, Dkt. 109 (N.D. Ohio, Jan. 24,
2012 (granting relief). But see, e.g., United States v. Taylor, No. 4:03-CR-422, Dkt. 78
(N.D. Ohio, May 31, 2012) (denying relief for ineligibility); United States v. Bell, No.
4:02-CR-147-JG-1, Dkt. 71 (N.D. Ohio, Apr. 17, 2012) (denying relief for ineligibility).
This confusion is understandable because the individuals sentenced in these cases are not
similarly situated to other defendants generally. Instead, the law acknowledges the great
risk that they face in helping the Government investigate and prosecute their
confederates by removing the normal sentencing restrictions.

       When the Government files a substantial-assistance motion, it usually enables
the sentencing court to do two things, each arising from a different source of authority.
See United States v. Gabbard, 586 F.3d 1046, 1049-50 (6th Cir. 2009). On motion of
No. 12-3730             United States v. Taylor                                                      Page 11


the Government, the court may, under 18 U.S.C. § 3553(e), sentence a defendant below
the statutory floor created by the otherwise-applicable statutory minimum. Id.; see also
United States v. Williams, 687 F.3d 283, 287 (6th Cir. 2012) (discussing the authority
that Congress gave sentencing courts under § 3553(e) to impose sentences below the
normal statutory minimum and the limits of that statutory authority). Under § 5K1.1 of
the Guidelines, the Government invites the court to grant a motion permitting a departure
from the previously-calculated Guidelines range. Gabbard, 586 F.3d at 1049-50. This
distinction is important because the Guidelines, which we must interpret for the
eligibility question, incorporate the provisions concerning § 3553(e) and § 5K1.1 in
different places. For my purposes, the fact that § 3553(e) statutorily renders the normal
statutory minimum inoperative is the most relevant aspect of a substantial-assistance
motion.2

                                                     II.

         Section 3582(c)(2) authorizes the district courts to reduce the prison term of a
defendant whose original sentence was 1) “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission,” so long as 2) “such
reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). I consider each in turn.

A.       Whether Taylor’s Sentence was “Based On” a Sentencing Range That Has
         Been Lowered

         There is no question that the offense levels set in § 2D1.1 have been lowered by
Amendment 750. The issue in the first prong is whether Taylor’s original sentencing
was “based on” a sentencing range produced by reference to § 2D1.1.




         2
           I also note that although our dicta in United States v. Stewart that “the appropriate starting point
for the defendant's [§ 3553(e)] downward departure was his mandatory minimum sentence” has caused
some confusion, it does not mean that the statutory minimum is somehow incorporated into the Guidelines
range through § 5G1.1 when it is not “required.” 306 F.3d 295, 332 (6th Cir. 2002). Our holding there
merely rejected the appellant’s contention that the court was obligated to impose a sentence below the
Guidelines range when it had granted a § 3553(e) motion.
No. 12-3730            United States v. Taylor                                                     Page 12


         We formed the test to answer this question in Hameed. 614 F.3d at 262-67. “In
determining whether a sentence was ‘based on’ a subsequently lowered guideline range
in a plain-meaning sense of the words, we must consider whether the original sentence
was, in fact, ‘based on’ such a range; that is, we look to what the district court actually
said and did at the original sentencing.” Id. at 264 (citations and internal quotation
marks omitted) (emphasis added). Thus, we held that a defendant who had been
sentenced below the normal statutory minimum after the grant a § 3553(e) motion had
a sentence that was “based on” the § 2D1.1 range. Id. at 264-67. The Supreme Court
endorsed our approach in Freeman v. United States, concluding that the essential
question is whether the original sentence was, in fact, ‘based on’ a Guidelines range that
has been lowered.3 131 S. Ct. 2685, 2693, 2695-98 (2011). The majority’s conclusion
that Taylor’s sentence was based on the statutory minimum rather than the § 2D1.1 range
is a misreading of Hameed.

         For the first re-sentencing prong, the facts of Hameed are nearly
indistinguishable from those of the present case.4 Using the ranges in § 2D1.1(c)(3), the
court assigned Taylor a base offense level of 34. It then granted a two-level reduction
under § 3E1.1(a) for acceptance of responsibility and a three-level reduction under
§ 5K1.1 for substantial assistance, arriving at an offense level of 29, making Taylor’s
advisory Guidelines range 151 to 188 months. The court then considered the § 3553(a)
sentencing factors and expressly stated that it was sentencing Taylor at the bottom of the
Guidelines range to 151 months. What the court actually did, in fact, was base the


         3
           In Freeman, the question was whether a defendant’s sentence was “based on” a Guidelines range
where the defendant had signed a binding Federal Rule of Criminal Procedure 11(c)(1)(C) agreement
(“C agreement”). 131 S.Ct. at 2690. The plurality opinion held that the defendant’s sentence was based
on the Guidelines because the district court actually relied on it. Id. at 2693 (Kennedy, J., plurality
opinion). Justice Sotomayor, concurring separately, agreed that the question is how the original sentence
was actually calculated, with the only caveat being that when there is a C agreement, the question is
whether the C agreement used the Guidelines range to arrive at the agreed-upon sentencing range. Id. at
2697-98 (Sotomayor, J., concurring). The difference when there is a C agreement is that the parties agree
to a particular sentencing range, and the district court’s task is merely to accept or reject the agreement.
Id. at 2695-96. Either way, the question is essentially the same: whether the original sentence was, in fact,
‘based on’ a Guidelines range that has been lowered. Taylor did not have a C agreement; he pleaded guilty
pursuant to a Rule 11(c)(1)(B) agreement.
         4
          The main distinguishing feature between Hameed and the present case is that Hameed addressed
re-sentencing pursuant to Amendment 706, while we address it pursuant to Amendment 750. This
difference is relevant in the next sub-section, but not here.
No. 12-3730         United States v. Taylor                                           Page 13


sentence on a range that depended on § 2D1.1. Accordingly, the contention that
Taylor’s sentence was, in fact, based on the statutory minimum is simply incorrect. The
sentencing transcript plainly shows that the sentencing court did not consider the
statutory minimum, as the sentencing judge herself later acknowledged when declining
to exercise discretion to reduce Taylor’s sentence under Amendment 706. Taylor’s
sentence was “based on” a sentencing range produced by reference to § 2D1.1, and
Taylor therefore satisfies prong one.

B.      Whether Re-sentencing is Consistent with Applicable Policy Statements

        To determine whether re-sentencing is consistent with the applicable policy
statements, a court must look to U.S.S.G. § 1B1.10. At the time that the Hameed court
reviewed whether re-sentencing pursuant to Amendment 706 was consistent with
§ 1B1.10, that section contained fewer relevant policy statements and fewer explanations
of those statements than it does today.5 The most relevant policy statement was
§ 1B1.10(a)(2)(B). Since then, the Sentencing Commission has added, as part of
Amendment 759, application notes to § 1B1.10(a)(2)(B), as well as § 1B1.10(b)(2) and
its associated application notes.

        Section 1B1.10(a)(2)(B) of the Guidelines states that “[a] reduction in the
defendant’s term of imprisonment is not consistent with this policy statement and
therefore is not authorized . . . [if an expressly retroactive] amendment . . . does not have
the effect of lowering the defendant’s applicable guideline range.”                  U.S.S.G.
§ 1B1.10(a)(2)(B) (emphasis added). In Hameed, we had to determine what counted as
the defendant’s “applicable guidelines range” to know whether it actually had been
lowered, but the policy statements provided no further explanation. 614 F.3d at 267.
We turned to our somewhat off-point analysis in Stewart, in which we rejected a
defendant’s arguments that the district court was bound to sentence him below the
Guidelines range after granting a § 3553(e) motion, noting that the “starting point” for


        5
          Amendment 706 became effective on May 1, 2008. Hameed was issued on July 26, 2010.
614 F.3d 259. Amendments 750 and 759 became effective on November 1, 2011. U.S.S.G., App. C, at
398, 416.
No. 12-3730            United States v. Taylor                                                  Page 14


a downward departure was the statutory minimum. Id.; see Stewart, 306 F.3d at 332.
In the absence of anything better to explain the meaning of “applicable,” we concluded
that Stewart meant that Hameed’s “applicable guidelines range” did not depend on the
now-modified § 2D1.1, even though his sentence was “based on” § 2D1.1, but on the
inapplicable statutory minimum. Hameed, 614 F.3d at 268-69.

         Now, however, the Sentencing Commission has elaborated on the meaning of
“applicable guidelines range” in Application Note 1(A) of § 1B1.10, which states in
relevant part that re-sentencing is not appropriate under § 1B1.10(a)(2)(B) if a listed
amendment

         is applicable to the defendant but the amendment does not have the effect
         of lowering the defendant's applicable guidelines range because of the
         operation of another guideline or statutory provision (e.g., a statutory
         mandatory minimum term of imprisonment) (i.e., 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 . . .).

(emphasis added). The elaboration is hardly a model of clarity, but it plainly suggests
that our reasoning in Hameed may not apply to Amendments 750 and 759. First, it
indicates that the “applicable guidelines range” is something different from the statutory
minimum because a statutory minimum can “operate on” the “applicable guidelines
range” to prevent it from being lowered. Second, and more importantly, it is only the
“operation of” a statutory minimum or another guideline that may prevent the
“applicable guidelines range” from being lowered. Third, the note expressly refers us
to the Guidelines range that corresponds to § 1B1.1(a). This clause modifies “another
guideline . . . provision,” so the range that corresponds to § 1B1.1(a) is something else
that could operate to prevent the applicable Guidelines range from being lowered. See,
e.g., In re Sanders, 551 F.3d 397, 400 (6th Cir. 2008) (using the last antecedent rule to
interpret a statutory provision).6


         6
         The last antecedent rule also indicates that the clause quoted from Application Note 1(A) of
§ 1B1.10—“which is determined before consideration of any departure provision”—modifies § 1B1.1(a).
This makes sense because it is § 1B1.1(b), not § 1B1.1(a), that incorporates the departure provisions such
as § 5K1.1. This is one place where the difference between § 5K1.1 and § 3553(e) becomes relevant.
No. 12-3730            United States v. Taylor                                                  Page 15


         Let us turn, then, to § 1B1.1(a) to determine how it could operate to prevent the
“applicable guidelines range” from being lowered. This provision instructs a court to
establish the Guidelines sentence by applying various Guidelines provisions in a
particular order, beginning with those in Chapter 2 and proceeding roughly in the order
in which they appear in the Guidelines. U.S.S.G. § 1B1.1(a)(1)-(8). Of particular
interest is subsection (8), which incorporates Part G of Chapter 5.                            U.S.S.G.
§ 1B1.1(a)(8). Section 5G1.1(b) specifies that “[w]here a statutorily required minimum
sentence is greater than the maximum of the applicable Guidelines range, the statutorily
required minimum sentence shall be the guidelines sentence.” (emphasis added). Thus,
if a statutory minimum is required, then the range that corresponds to § 1B1.1(a) could
operate to prevent the “applicable guidelines range” from being lowered. A statutory
minimum is not required, however, when the sentencing court has granted a § 3553(e)
motion; in that case, it is not incorporated into the § 1B1.1(a) range.

         The Seventh Circuit recently came to the same conclusion in United States v.
Wren, 706 F.3d 861, 862-64 (7th Cir. 2013), determining that § 5G1.1 simply does not
apply if a § 3553(e) motion has been granted. Id. at 862-64. Writing for the court, Judge
Easterbrook surmised that § 1B1.10(a)(2)(B) and Application Note 1 together mean that
while the “operation of” a statutory minimum can produce a situation where Amendment
750 would not lower the applicable Guidelines range, a circumstance where the statutory
minimum is inoperative does not. Id. at 863-64. Accordingly, the court held that
defendants who had been sentenced below the normal statutory floor because of their
substantial assistance were eligible for re-sentencing pursuant to Amendment 750. Id.
at 862-64. This holding is somewhat more persuasive in light of the fact that the Seventh
Circuit’s holding in regard to Amendment 706 was the same as our interpretation under
Hameed.       See United States v. Poole, 550 F.3d 676, 679-80 (7th Cir. 2008).
Additionally, our decision in Stewart, the sole basis for our decision in Hameed, relied
in large part on a Seventh Circuit case. Stewart, 306 F.3d at 332 (citing United States



Section 5K1.1 is a departure provision that does not come into effect in § 1B1.1(a). But § 3553(e) renders
§ 5G1.1(b), which would normally incorporate the statutory minimum, inoperative in § 1B1.1(a). See
Gabbard, 586 F.3d at 1049-50.
No. 12-3730            United States v. Taylor                                                  Page 16


v. Hayes, 5 F.3d 292, 293-95, (7th Cir. 1993) (rejecting appellant’s claim that a
§ 3553(e) motion obligated the court to anything other than imposing a sentence below
the statutory minimum)).

         The Third and D.C. Circuits also have reached this conclusion. See United States
v. Savani, 733 F.3d 56, 58 (3d Cir. 2013) (“[D]efendants . . . 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).”); In re Sealed Case, 722 F.3d 361, 363 (D.C. Cir. 2013)
(“This appeal asks whether a crack offender sentenced below an otherwise applicable
statutory minimum because he provided substantial assistance to law enforcement is
eligible for a sentence reduction under § 3582(c)(2). We hold that he is.”). And so, too,
has a judge of this court concluded that a substantial assistance motion “effectively
‘waive[s]’ the mandatory minimum and permit[s] the district court to impose a sentence
based on the otherwise-applicable guidelines range.”7 United States v. Doe, 731 F.3d
518, 528 (6th Cir. 2013) (Cole, J., concurring in part and concurring in the judgment).
Accordingly, “[w]ithout a mandatory minimum at work, nothing prevents Amendment
750 from having ‘the effect of lowering’ the sentence the [defendant] did receive.“ Id.
But see Joiner, 727 F.3d at 609.

         The other relevant addition from Amendment 759 is the new policy statement in
§ 1B1.10(b)(2)(B), which reads:

         (B) Exception for Substantial Assistance.–If the term of imprisonment
         imposed was less than the term of imprisonment provided by the
         guideline range applicable to the defendant at the time of sentencing
         pursuant to a [§ 3553(e) motion], a reduction comparably less than the
         amended guidelines range determined under [§ 1B1.10(b)(1)] may be
         appropriate.

(emphasis added). Application Note 3 of § 1B1.10 further elaborates:

         7
           Our recent en banc decision in United States v. Blewett, Nos. 12-5226 / 12-5582, 2013 U.S. App.
LEXIS 24018 (6th Cir. Dec. 3, 2013), is not to the contrary. Neither of the defendants in that case had
received a substantial assistance departure under § 3553(e) from the applicable statutory minimum during
his original sentencing. Additionally, Blewett is not applicable here because the statutory sentence that
would have applied to Taylor absent the substantial assistance departure under § 3553(e) has not changed.
No. 12-3730           United States v. Taylor                                    Page 17


       . . . Subsection (b)(2)(B) provides an exception to this limitation, which
       applies if the term of imprisonment imposed was less than the term of
       imprisonment provided by the guideline range applicable to the
       defendant at the time of sentencing pursuant to a government motion to
       reflect the defendant's substantial assistance to authorities. . . . 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).

(emphasis added).        In this policy statement, the Sentencing Commission has
acknowledged that those who received § 3553(e) relief are differently situated for re-
sentencing. More importantly, it expressly authorizes re-sentencing below the amended
ranges for those sentenced pursuant to a § 3553(e) motion. A § 3553(e) motion’s sole
function is to render the normal statutory minimum inoperative. This new provision
would have no meaning under our reasoning in Hameed, which established that no
defendant with an otherwise-applicable statutory minimum is eligible for re-sentencing
under Amendment 706. Our holding in Hameed, therefore, is not applicable to the new
policy statements under Amendments 750 and 759. See, e.g., United States v. Coatam,
245 F.3d 553, 558 (6th Cir. 2001) (applying the rule of surplusage that “discourages
courts from adopting a reading of a statute that renders any part of the statute mere
surplusage”); cf. Wren, 706 F.3d at 863 (noting that § 1B1.10(b)(2)(B) enhances the
court’s understanding that the statutory minimum does not affect the amended
Guidelines range when there has been a § 3553(e) grant); United States v. Smith, 501 F.
App’x 920, 926 n.6 (11th Cir. 2012) (taking it as a given that re-sentencing under
Amendment 750 was appropriate for defendants who received a § 3553(e) grant because
§ 1B1.10(b)(2)(B) allows a court to grant a “reduction comparably less than the amended
guideline range” ).

       Because Taylor’s “applicable guidelines range” was not affected by the
inoperative statutory minimum, we must look to see if it was lowered by an expressly-
No. 12-3730        United States v. Taylor                                       Page 18


retroactive Guidelines amendment. See U.S.S.G. § 1B1.10(a)(2)(B). Amendment 759
expressly made Amendment 750 retroactive. Amendment 750 lowered the crack-
cocaine ranges in § 2D1.1. Policy Statement § 1B1.1(b)(1) specifies that the court shall
substitute only the amended range and “leave all other guidelines application decisions
unaffected.” The Supreme Court also has instructed us to leave all original sentencing
decisions in place, except for the amended provision, even if such decisions were in
error. Dillon v. United States, 130 S. Ct. 2683, 2691, 2694 (2010). Thus, because the
sentencing court did not actually calculate Taylor’s sentence starting from the statutory
minimum, nor may we for this purpose. Cf. Wren, 706 F.3d at 861 (stating that if
§ 5G1.1 did not affect the original sentence, then it does not affect the new sentence).

       Accordingly, the amended § 2D1.1 crack-cocaine ranges would make Taylor’s
amended base-offense level 32. U.S.S.G. § 2D1.1(c)(4). Keeping everything else the
same as his original sentencing calculation, Taylor’s criminal history category would be
VI, he would receive a two-level reduction for acceptance of responsibility and a three-
level § 5K1.1 reduction for substantial assistance, and the court’s grant of the § 3553(e)
motion would render the statutory minimum inoperative. His advisory Guidelines range
would be 130 to 163 months. See U.S.S.G. Sentencing Table. This is indeed a lower
range than the 151 to 188 months range the sentencing court used. Re-sentencing for
Taylor, pursuant to Amendment 750, would be consistent with the Sentencing
Commission’s policy statements. Accordingly, Taylor should be eligible for re-
sentencing.

       Such a holding would correct some of the conflicting positions that we have
taken in unpublished opinions regarding Amendment 750. See, e.g., United States v.
Williams, 512 F. App’x 594, 600 (6th Cir. 2013) (rejecting the argument that
Amendment 750 alters the Hameed analysis); United States v. Daniel, 508 F. App’x 549,
549-50 (6th Cir. 2012) (per curiam) (rejecting re-sentencing for defendant sentenced
below normal statutory floor with no analysis of “applicable guidelines range”); United
States v. Passmore, 503 F. App’x 340, 341-42 (6th Cir. 2012) (per curiam) (same). But
see United States v. Blackwell, No. 12-3405 (6th Cir. 2012) (Order) (remanded after the
No. 12-3730        United States v. Taylor                                        Page 19


government agreed that appellant was eligible for re-sentencing where a § 3553(e) grant
allowed for sentencing below the normal statutory floor). It would fit more easily
within the current language and operation of the Guidelines as well as a common sense
understanding of the law. It hardly makes sense to hold a defendant to a statutory
minimum on re-sentencing when the same minimum did not operate on his original
sentence. Of course, to the extent the government believes that a further sentence
reduction is inappropriate for a particular defendant, it may ask the district court not to
exercise its discretion. See Freeman, 131 S. Ct at 2698-99 (Sotomayor, J., concurring).

                                             III.

       In light of this reasoning, I believe that the appropriate course of action would
be to reverse the district court’s ruling that Taylor is ineligible for re-sentencing under
§ 3582(c)(2) and remand this case so that the district court may exercise the discretion
it possesses. Because the majority affirms the district court’s ruling, I respectfully
dissent.
