     Case: 12-30367       Document: 00512215990         Page: 1     Date Filed: 04/22/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 22, 2013

                                       No. 12-30367                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

JONATHAN SHANE BENTON,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                                   (09-CR-102)


Before JOLLY, PRADO, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:*
       Jonathan Shane Benton appeals the district court’s decision that he was
ineligible for resentencing under the changes to the crack cocaine sentencing
guidelines. Benton pleaded guilty to a crack cocaine offense and was sentenced
below the mandatory minimum because the government sought and obtained a
downward departure for substantial assistance. Because Benton’s sentence was
based on a statutory departure from the statutory minimum sentence, rather
than on a guideline sentencing range, we AFFIRM.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-30367

I.    Facts and Procedural History
      Benton pleaded guilty, in 2009, to possessing with the intent to distribute
50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a). The
presentence report determined that Benton’s base offense level was 32, and
reduced by three levels for acceptance of responsibility, for a total offense level
of 29. Based on that offense level and Benton’s criminal history score of IV,
Benton’s guideline sentencing range was 121 to 151 months of imprisonment.
      Although Benton’s crime of conviction carried a statutory minimum
sentence of 120 months, the Government moved for a ten-level downward
departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 due to Benton’s
substantial assistance. The district court granted the motion and recalculated
Benton’s guideline range to be 46 to 57 months. Benton was sentenced to 57
months of imprisonment.
      The Sentencing Commission subsequently altered the base offense levels
for cocaine base to conform with the Fair Sentencing Act, Pub. L. No. 111-220,
§ 2(a), 124 Stat. 2372 (Aug. 3, 2010). See United States Sentencing Commission,
Guidelines Manual, Supp. to Appendix C-Vol. III, Amendment 750, at 391–98
(Nov. 1, 2011). These changes apply retroactively to offenders such as Benton.
See Amendment 759, id. at 416–21; U.S.S.G. § 1B1.10(c).
      Based on these changes, the district court examined Benton’s case sua
sponte, see 18 U.S.C. § 3582(c)(2), to determine whether Benton qualified for a
reduction of sentence. The Probation Office report recommended a reduction,
citing § 1B1.10, Application Note 3, for the proposition that because Benton’s
original sentence was less than his original guideline range, a reduction
comparably less than the amended guideline range would be appropriate. It


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concluded that, applying the same 10-level reduction that Benton had received
for substantial assistance, Benton’s new offense level should be 17 and his
amended guideline range would be 37 to 46 months.
       The Government objected to the report, arguing that Benton is not eligible
for a sentence reduction because his statutory minimum sentence could only
have been superseded by the statutory authority of § 3553(e), not by operation
of the sentencing guidelines. The district court agreed with the Government and
denied Benton a sentencing reduction, stating that “§ 3553(e) permits a
departure from the statutory minimum, and only the statutory minimum,
regardless of the unutilized sentencing range.”
II.    Analysis
       Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “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” the Sentencing Commission’s
changes to the guidelines. 18 U.S.C. § 3582(c)(2). The applicable guidelines
policy statement, U.S.S.G. § 1B1.10, limits the circumstances under which a
defendant is entitled to a § 3582(c)(2) sentence reduction. § 1B1.10, cmt. 1.1 A


       1
        Although not elaborated on by the parties, we note that the commentary to the policy
statement discussing not the authority to reduce a sentence, but limitations to such
reductions, does imply tension inasmuch as it refers to § 3553(e) “authorizing the court, upon
government motion, to impose a sentence below a statutory minimum to reflect the
defendant’s substantial assistance.” U.S.S.G. § 1B.10, cmt. 3. Section 1B1.10 and its
Application Note provide that while generally a sentence under § 3582(c)(2) shall not be
reduced below the amended guideline range, an exception exists where the original sentence
was imposed below the guideline range pursuant to “a government motion for substantial
assistance”; in such cases, a sentence comparably less than the amended guideline range may
be imposed. Id. The Application Note lists § 3553(e), along with § 5K1.1 and Federal Rule
of Criminal Procedure 35(b), as the provisions authorizing such a government motion. Id.

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reduction is not authorized if the amendment to the guidelines “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).” Id.
       In determining whether to reduce a sentence under § 3582(c)(2), the
district court first decides whether the defendant is eligible for a sentence
modification, and if so, must consider the applicable 18 U.S.C. § 3553(a) factors
to decide whether a reduction “is warranted in whole or in part under the
particular circumstances of the case.” Dillon v. United States, 130 S. Ct. 2683,
2692 (2010).       A reduction must also be consistent with the Sentencing
Commission’s applicable policy statements. 18 U.S.C. § 3582(c)(2). Benton
argues that the district court erred in determining that he was not eligible for
a sentence reduction under § 3582(c)(2), and we review that question de novo.
See United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
       Section 3582(c)(2) applies only to defendants whose original term of
imprisonment was “based on a sentencing range that has subsequently been
lowered.” 18 U.S.C. § 3582(c)(2) (emphasis added). In United States v. Carter,
this court interpreted the phrase “based on” in the context of a defendant whose



Nonetheless, the policy statement and commentary allow for an exception for sentences
imposed below the guideline range at the time of sentencing and do not address sentences
imposed below the statutory minimum. See § 1B.10(b)(2)(B); § 1B1.10 cmt. 3. Thus, we will
not interpret this possible tension in the Sentencing Commission’s reference to § 3553(e) to
overcome precedent from this circuit and others that a departure under § 3553(e) is a
departure from the statutory minimum, not from the guideline range, as discussed below. See
United States v. Carter, 595 F.3d 575, 580 (5th Cir. 2010); United States v. Hood, 556 F.3d 226,
235 (4th Cir. 2009); United States v. Hameed, 614 F.3d 259, 268–69 (6th Cir. 2010); United
States v. Williams, 549 F.3d 1337, 1342 (11th Cir. 2008).


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statutory minimum was higher than—and therefore displaced—his otherwise-
applicable guideline range. 595 F.3d 575, 579 (5th Cir. 2010). The court
concluded that such a defendant was ineligible for a reduction under § 3582(c)(2)
because his sentence was “‘based on’ the statutory minimum, not the guideline
range.” Id. at 579; see also U.S.S.G. § 5G1.1(b) (“Where a statutorily required
minimum sentence is greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence shall be the guideline
sentence.”).
      Benton argues that, because his original guideline range—unlike that of
the defendant in Carter—was higher than the statutory minimum, his original
sentence was “based on” a guideline range that has since been lowered, from
121–151 months to 120–125 months. The district court nonetheless determined
that Benton was ineligible for a reduction because his sentence was based on a
statutory departure from the statutory minimum, rather than on a guideline
range. We agree.
      A district court may depart below a statutory minimum for a drug crime
only under the statutory exceptions contained in § 3553(e), the “substantial
assistance” exception, and § 3553(f), the “safety valve” exception. United States
v. Phillips, 382 F.3d 489, 499 (5th Cir. 2004). Courts “lack[] authority to impose
a sentence below the statutory minimum absent a statutory exception.” Carter,
595 F.3d at 578–79.
      The Supreme Court has made clear that “§ 3553(e) requires a Government
motion requesting or authorizing the district court to impose a sentence below
a level established by statute as [the] minimum sentence before the court may




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                                 No. 12-30367

impose such a sentence.” Melendez v. United States, 518 U.S. 120, 125–26
(1996). Section 3553(e) provides that:
      Upon motion of the Government, the court shall have the authority
      to impose a sentence below a level established by statute as a
      minimum sentence so as to reflect a defendant’s substantial
      assistance in the investigation or prosecution of another person who
      has committed an offense. Such sentence shall be imposed in
      accordance with the guidelines and policy statements issued by the
      Sentencing Commission.

18 U.S.C. § 3553(e). A sentence reduction under § 3553(e) does not render the
statutory minimum inapplicable; instead, it constitutes a departure from the
statutory minimum. Carter, 595 F.3d at 580; see also United States v. Hood, 556
F.3d 226, 235 (4th Cir. 2009). Thus, the statutory minimum, and not the
guideline range, is the correct starting point for imposing a sentence under §
3553(e).
      We have held, in accordance with the majority of other circuits, that the
extent of a departure under § 3553(e) “must be based solely on assistance-related
concerns.” United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006); see also
United States v. Richardson, 521 F.3d 149, 159 (2d Cir. 2008); Hood, 556 F.3d
at 237; United States v. Williams, 474 F.3d 1130, 1130–31 (8th Cir. 2007); United
States v. Auld, 321 F.3d 861, 867 (9th Cir. 2003). Section 3553(e)’s instruction
that the resulting sentence shall be imposed “in accordance with the guidelines
and policy statements issued by the Sentencing Commission” does not, however,
override the fact that the departure sentence remains based on the underlying
statutory minimum. Carter, 595 F.3d at 579–580. Instead, we have interpreted
that instruction to refer to “such guidelines and policy statements as the
Commission may create specifically to implement § 3553(e).” Id. at 580; see also

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Hameed, 614 F.3d at 269 (holding that, where a defendant was granted a §
3553(e) departure, the crack cocaine guidelines were not “‘applicable’ in
determining the extent of the departure [the defendant] received” and, thus, the
defendant was ineligible for a sentence reduction under § 3582(c)(2)). Thus, even
though the changes to the crack cocaine guidelines lowered Benton’s sentencing
range under § 2D1.1, that range did not determine the sentence Benton received
under § 3553(e).2
       Although the district court calculated Benton’s sentencing range under §
2D1.1 both before and after taking into account the § 3553(e) departure, this is
an “informal” factor that we do not consider in determining whether a sentence
was “based on” a lowered guideline range as required by § 3582(c)(2). Carter,
595 F.3d at 579 n.4. Instead, “where a statutory minimum applies and can only
be modified based on statutory exceptions, it does not matter to the sentence-
reduction analysis that a district court may have considered or purported to rely
on general guideline provisions when calculating the extent of a downward
departure.” Id.; see also Hood, 556 F.3d at 235 (a district court’s reference to
reduced offense levels to quantify a downward departure § 3553(e) has “no legal
significance for the analysis under § 3582(c)(2)”). Because the district court was
not authorized to consider any otherwise-applicable guideline range in

       2
          Benton argues that the plain text of § 1B1.10 establishes his eligibility for a reduced
sentence. Section 1B1.10 provides that “the court shall determine the amended guideline
range that would have been applicable to the defendant if the amendment(s) to the guidelines
. . . had been in effect at the time the defendant was sentenced.” U.S.S.G. § 1B1.10(b)(1).
Benton notes that his amended guideline range would have been 120 to 125 months rather
than 121 to 151 months. Although Benton is correct that the amendment lowered his
guideline range under § 2D1.1, nonetheless, were he to be resentenced today, the same
statutory minimum would apply and, if presented with another § 3553(e) motion, the court
still would be departing from the statutory minimum, not the amended guideline range. See
United States v. Johnson, 564 F.3d 419, 422–23 (6th Cir. 2009).

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sentencing Benton under § 3553(e), we conclude that Benton’s sentence was not
based on a sentencing range that was subsequently lowered by Amendment 750.
III.    Conclusion
        For the foregoing reasons, we AFFIRM the district court’s ruling denying
a reduction in sentence.




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