               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0055n.06

                                      Case No. 15-5729
                                                                                    FILED
                         UNITED STATES COURT OF APPEALS                       Jan 28, 2016
                              FOR THE SIXTH CIRCUIT                       DEBORAH S. HUNT, Clerk



UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )       ON APPEAL FROM THE
                                                     )       UNITED STATES DISTRICT
v.                                                   )       COURT FOR THE WESTERN
                                                     )       DISTRICT OF KENTUCKY
ADAM SAEED-WATARA,                                   )
                                                     )
       Defendant-Appellant.                          )                   OPINION
                                                     )

BEFORE: MERRITT, GIBBONS and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge.          In August 2010, after the jury found him guilty of

conspiring to possess with intent to distribute one kilogram or more of heroin, defendant Adam

Saeed-Watara was sentenced to a prison term of 121 months. In 2015, defendant requested a

reduction of his sentence under 18 U.S.C. § 3582(c)(2) in light of the subsequent amendment of

the applicable sentencing guidelines range. The guidelines range applicable at the time of his

original sentencing was 121 to 151 months. After the guidelines ranges applicable to most drug-

trafficking offenses were amended, see U.S.S.G. § 2D1.1, defendant would have been subject to

an advisory guidelines range of 97 to 121 months—but for the statutory mandatory minimum

sentence applicable to his offense. Hence, although defendant asked that his sentence be reduced

to 97 months, the district court granted only a one-month reduction, concluding that the

mandatory minimum sentence of 120 months precluded any greater reduction.            Defendant
Case No. 15-5729
United States v. Saeed-Watara

appeals, contending the district court erred as a matter in holding that the mandatory minimum

applies.

       Inasmuch as defendant challenges the sentencing decision as a “violation of law,” we

have jurisdiction under 18 U.S.C. § 3742(a)(1). See United States v. Bowers, 615 F.3d 715, 723

(6th Cir. 2010). The claim that the district court committed legal error is subject to de novo

review. United States v. Joiner, 727 F.3d 601, 604 (6th Cir. 2013).

       The lynchpin of defendant’s argument is found in the holding of Alleyne v. United States,

133 S. Ct. 2151 (2013), decided after his original sentencing and before his sentence was

modified. Alleyne holds that a fact triggering a mandatory minimum sentence constitutes an

element of the offense that must be found by the jury beyond a reasonable doubt. Id. at 2161–62.

When defendant was tried, pre-Alleyne, the jury found him guilty of the charged offense, i.e.,

conspiring to possess with intent to distribute more than one kilogram of a mixture or substance

containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)

and 846. However, defendant contends, the jury was never required to specifically find, as an

element of the offense, that he conspired to possess a kilogram or more of heroin. Hence, he

argues the drug-quantity fact triggering application of the ten-year mandatory minimum under

21 U.S.C. § 841(b)(1)(A) cannot be constitutionally applied in his resentencing under 18 U.S.C.

§ 3582(c).

       The argument is not without facial appeal, but the fallacy resides in the final phrase. See

U.S.S.G. § 1B1.10(a)(3). A § 3582(c)(2) sentence modification is not a “resentencing.” “Rather,

§ 3582(c)(2) represents a congressional act of lenity intended to give prisoners the benefit of

later enacted adjustments to the judgments reflected in the Guidelines.” Dillon v. United States,

560 U.S. 817, 828 (2010).


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United States v. Saeed-Watara

       By its terms, § 3582(c)(2) does not authorize a sentencing or resentencing
       proceeding.    Instead, it provides for the “modif[ication of] a term of
       imprisonment” by giving courts the power to “reduce” an otherwise final sentence
       in circumstances specified by the Commission.

Id. at 825 (alteration in original).    In language directly responsive to defendant’s present

argument, the Dillon Court further explained:

       Section 3582(c)(2) requires the court to follow the Commission’s instructions in
       § 1B1.10 to determine the prisoner's eligibility for a sentence modification and the
       extent of the reduction authorized. Specifically, § 1B1.10(b)(1) requires the court
       to begin by “determin[ing] the amended guideline range that would have been
       applicable to the defendant” had the relevant amendment been in effect at the
       time of the initial sentencing. “In making such determination, the court shall
       substitute only the amendments listed in subsection (c) for the corresponding
       guideline provisions that were applied when the defendant was sentenced and
       shall leave all other guideline application decisions unaffected.”

Id. at 827 (alteration in original; emphasis added).

       Thus, § 3582(c)(2) authorizes a very limited reopening and modification of the otherwise

final sentence. The district court was limited to substituting the amended guidelines range for

the superseded guidelines range originally applied, leaving all other guidelines application

decisions unaffected. It is undisputed here that “had the relevant amendment been in effect at the

time of the initial sentencing,” in the pre-Alleyne era, the amended guidelines range of 97 to 121

months would have been constrained by the applicable ten-year mandatory minimum sentence,

yielding a truncated range of 120 to 121 months. It follows that the district court, in reducing

defendant’s sentence, was entirely faithful to the process described in Dillon. In reducing

defendant’s sentence to 120 months, the district court imposed a sentence, as it had originally, at

the low end of the applicable guidelines range. Because of the statutory mandatory minimum,

this was the greatest permissible reduction. The Court’s intervening decision in Alleyne did not

warrant re-opening the factual premises for the mandatory minimum because such relief is

beyond the scope of the limited authorization granted by § 3582(c)(2). This is made clear in

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Dillon, as the Court stated, “proceedings under § 3582(c)(2) do not implicate the Sixth

Amendment right to have essential facts found by a jury beyond a reasonable doubt.” 560 U.S.

at 828.

          Further, the district court’s sentence modification decision is entirely consonant with

Dillon’s final conclusion:

                 As noted, § 3582(c)(2) does not authorize a resentencing. Instead, it
          permits a sentence reduction within the narrow bounds established by the
          Commission. The relevant policy statement instructs that a court proceeding
          under § 3582(c)(2) “shall substitute” the amended Guidelines range for the initial
          range “and shall leave all other guideline application decisions unaffected.”
          § 1B1.10(b)(1). Because the aspects of his sentence that Dillon seeks to correct
          were not affected by the Commission's amendment to § 2D1.1, they are outside
          the scope of the proceeding authorized by § 3582(c)(2), and the District Court
          properly declined to address them.

Id. at 831. Thus, again, because the factual requisites needed to trigger the mandatory minimum

at the time of the original sentencing were not affected by the Sentencing Commission’s

amendment of the applicable guidelines range, the district court properly declined to address the

impact of Alleyne. It had no authority to do so under § 3582(c)(2). See also United States v.

Blewett, 746 F.3d 647, 657 (6th Cir. 2013) (en banc) (“Section 3582(c)(2) allows consideration

only of retroactive amendments to the sentencing guidelines, with other sentencing elements—

mandatory minimums included—held constant.”); United States v. Hammond, 712 F.3d 333, 335

(6th Cir. 2013) (“When modifying a sentence, a court should substitute only the retroactive

amendment and then leave all original guidelines determinations in place. See Freeman v.

United States, 131 S. Ct. 2685, 2692 (2011).”).

          Moreover, even if we were to hold that the district court erred by not considering the

impact of Alleyne, the result would remain unchanged. The record of defendant’s trial discloses

that the jury was explicitly and properly instructed:


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              A conspiracy is a kind of criminal partnership. For you to find the
       defendant guilty of a conspiracy, you must find that the Government has proved
       each and every one of the following elements beyond a reasonable doubt:

               Number one, that two or more persons conspired and agreed to knowingly
       and intentionally distribute or possess with the intent to distribute one kilogram or
       more of a mixture or substance containing a detectable amount of heroin, a
       controlled substance; two, that the defendant knowingly and voluntarily joined the
       conspiracy; and three, that the defendant participated in the conspiracy.

R. 72, Trial Tr. 2-55–2-56, Page ID 568–69. Presuming, as we must, that the jury followed the

instructions, see United States v. Lawrence, 735 F.3d 385, 403 (6th Cir. 2013)—and defendant

having offered nothing rebutting the presumption—the verdict finding defendant guilty of the

only offense charged cannot be viewed as other than a finding that the mandatory-minimum-

triggering facts were found by the jury beyond a reasonable doubt—i.e., that the conspiracy

defendant knowingly and voluntarily joined involved one or more kilograms of a mixture or

substance containing heroin. It follows that even if the rule of Alleyne applied, the district court

would have been constrained by the mandatory minimum to grant a reduction no lower than

120 months.

       Accordingly, defendant’s contention that the district court erred as a matter of law is

without merit. The sentence modification order is AFFIRMED.




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       MERRITT, Circuit Judge, concurring in part. Saeed-Watara’s case can be disposed of

based on the fact that his Alleyne argument fails. Even if he was permitted to raise his Alleyne

challenge in his 18 U.S.C. § 3582(c)(2) proceeding, Saeed-Watara would still lose because the jury

instructions unmistakably required the jury to find beyond a reasonable doubt that he committed a

crime involving “1 kilogram or more of a mixture or substance containing a detectable amount of

heroin,” 21 U.S.C. § 841(b)(1)(A)(i). Thus, it is not necessary for us to consider whether his Alleyne

argument was properly raised in the context of his 18 U.S.C. § 3582(c)(2) proceeding.

       Moreover, if Saeed-Watara had a valid Alleyne argument — that is, if the fact triggering his

statutory minimum was not found by a jury beyond a reasonable doubt — I doubt that Dillon would

prevent him from objecting at his resentencing to the imposition of a statutory minimum that was not

implicated and imposed at his original sentencing. I would affirm the district court’s judgment based

only on the fact that Saeed-Watara’s Alleyne argument fails, and I join Judge McKeague’s opinion

except to the extent that it holds that Saeed-Watara could not raise his Alleyne challenge in his 18

U.S.C. § 3582(c)(2) proceeding.




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