                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0106n.06

                                            No. 12-3353                                   FILED
                                                                                       Jan 30, 2013
                           UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES DISTRICT COURT FOR THE
                                                  )    NORTHERN DISTRICT OF OHIO
BRYAN K. WILLIAMS,                                )
                                                  )
       Defendant-Appellant.                       )
                                                  )

Before: MARTIN, SUHRHEINRICH, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Bryan K. Williams

appeals the district court’s order finding him ineligible for a sentence reduction. Williams pled

guilty to three counts of trafficking in crack cocaine and one count of being a felon in possession of

a firearm. The district court sentenced Williams to 135 months’ imprisonment. In February 2012,

Williams filed a motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2), which the district

court denied. The issue on appeal is whether Williams, who was subject to a mandatory minimum

sentence that exceeded the guideline range produced by his total offense level and criminal history

category, but sentenced below the mandatory minimum because of his substantial assistance, is

eligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) because Amendment 750

lowered the U.S.S.G. § 2D1.1(c) base offense level for the crack cocaine conviction to which he pled




                                                 -1-
guilty. For the following reasons, we affirm the district court’s order finding Williams ineligible for

a sentence reduction.

                                                  I.

       The indictment, filed on October 15, 2003, charged Williams with three counts of distributing

a substance containing crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count of being

a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Williams signed a plea

agreement on January 8, 2004, pleading guilty to all four counts.

       The U.S. Probation Office prepared a Presentence Investigation Report (“PSR”) using the

2002 version of the United States Sentencing Guidelines. According to the PSR, both parties agreed

to a base offense level of 32, as determined by the drug quantity table in U.S.S.G. § 2D1.1(c) and

the amount of crack cocaine being at least 111.6 grams. The PSR then stated that the parties agreed

that Williams had been convicted of a prior felony drug offense, which caused the government to

file a penalty enhancement under 21 U.S.C. § 851(a). The basis for this penalty enhancement was

21 U.S.C. § 841(b)(1)(A), which provided that an individual who distributed five kilograms or more

of a substance with a detectable amount of crack cocaine and had a prior conviction for a felony drug

offense must be sentenced to a term of imprisonment not less than twenty years. The parties also

agreed that, so long as certain conditions were fulfilled, the government would move for a two-level

decrease for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b) and a two-level

downward departure for substantial assistance under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).

       At the sentencing hearing, the court first stated that the base offense level was 32. It

decreased the offense level by two for acceptance of responsibility. The court then stated,

“[h]owever . . . [o]n count 2 there is a mandatory minimum of 20 years to life.” Next, the court


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granted the government’s § 3553(e) motion and departed downward by two. The court summarized:

“to go back over the calculations, the base offense level would be 34 . . . . Acceptance of

responsibility, there’s two levels, so we’re at a 32 . . . . The two-level downward departure puts us

at 30, and with a 30 and a criminal history category of IV, we are looking at a sentencing guideline

range of 135 to 168 [months’ imprisonment].” It sentenced Williams to 135 months’ imprisonment.

On February 29, 2012, Williams filed a motion for sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2). The district court denied Williams’s motion, finding him ineligible for a sentence

reduction. Williams appealed.

                                                  II.

       The U.S. Sentencing Commission has amended the United States Sentencing Guidelines to

reduce the disparity between sentences for offenses arising out of powder and crack cocaine. Dorsey

v. United States, 132 S. Ct. 2321, 2329 (2012); Dillon v. United States, 130 S. Ct. 2683, 2688 (2010).

In 2007, the Commission issued Amendment 706, which reduced the base offense level for most crack

cocaine offenses by two. Dillon, 130 S. Ct. at 2688. Soon thereafter, the Commission adopted

Amendment 713, which applied Amendment 706 retroactively. Id. On August 3, 2010, Congress

passed the Fair Sentencing Act (“FSA), which increased the amount of crack cocaine necessary to

trigger the mandatory minimums for trafficking offenses. Dorsey, 132 S. Ct. at 2329. The FSA

instructed the Commission to amend the guidelines as necessary to achieve consistency with other

guideline provisions and applicable law. Id. Accordingly, the Commission passed emergency

amendments to the guidelines, which became permanent on November 1, 2011. Id. Amendment 750

reduced the base offense levels in U.S.S.G. § 2D1.1(c) applicable to crack cocaine offenses, and

Amendment 759 made Amendment 750 retroactive. United States v. Jackson, 678 F.3d 442, 443 (6th


                                                  -3-
Cir. 2012). The FSA, however, does not retroactively amend the statutory mandatory minimum

sentence that applies to Williams, 21 U.S.C. § 841(b)(1).1 United States v. Carradine, 621 F.3d 575,

580 (6th Cir. 2010).

           Here, the district court held that Williams was ineligible for a sentence reduction based on

Amendments 750 and 759. “[T]he district court’s determination that the defendant is ineligible for a

sentence reduction is a question of law that is reviewed de novo.” United States v. Curry, 606 F.3d 323,

327 (6th Cir. 2010). Generally, a district court may not modify a defendant’s sentence after it has been

imposed. 18 U.S.C. § 3582(c). However,

       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 . . . 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.

18 U.S.C. § 3582(c)(2). Accordingly, two conditions must be fulfilled for a defendant to be eligible

for a sentence reduction under § 3582(c)(2): (1) the defendant was sentenced to a term of imprisonment

based on a sentencing range that has been lowered by the Commission pursuant to 28 U.S.C. § 994(o);

and (3) the reduction is consistent with the Commission’s applicable policy statements. 18 U.S.C.

§ 3582(c)(2). The applicable policy statements provide, in part, that “[a] reduction in the defendant’s

term of imprisonment is not consistent with this policy statement and therefore is not authorized under



       1
         In his reply brief, Williams argues that this court should apply the FSA’s amendment to the
statutory mandatory minimum prospectively to him. However, “[i]ssues raised for the first time in
a reply brief are not properly before this court.” United States v. Perkins, 994 F.2d 1184, 1191 (6th
Cir. 1993). In Dorsey, the Supreme Court held that the penalties of the FSA apply to offenders who
committed crimes before the effective date of the Act, but were sentenced after that date. 132 S. Ct.
at 2326. The defendant in Carradine, by contrast, was sentenced prior to the effective date of the
FSA. 621 F.3d at 578.

                                                   -4-
18 U.S.C. 3582(c)(2) if . . . [a]n amendment . . . does not have the effect of lowering the defendant’s

applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

                                                  A.

       Pursuant to 28 U.S.C. § 994(o), the Commission issued Amendment 750, which amended the

drug quantity table in U.S.S.G. § 2D1.1(c) by lowering the base offense levels for crack cocaine

offenses. Martin v. United States, 834 F. Supp. 2d 115, 135–36 (E.D.N.Y. 2011). We must therefore

first determine whether Williams’s sentence was “based on” a sentencing range that was lowered by

Amendment 750. “To ask whether a particular term of imprisonment is ‘based on’ a Guidelines

sentencing range is to ask whether that range serves as the basis or foundation for the term of

imprisonment.” Freeman v. United States, 131 S. Ct. 2685, 2695 (2011) (Sotomayor, J., concurring).

To determine the basis for the term of imprisonment, 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)).

       In this case, the transcript from the sentencing hearing reveals that the basis of Williams’s term

of imprisonment was the mandatory minimum sentence of twenty years, not the § 2D1.1(c) base offense

level. Initially, the court stated that the base offense level was 32 under § 2D1.1(c). The court then

decreased the base offense level by two for acceptance of responsibility. A total offense level of 30,

combined with Williams’s criminal history category of IV, resulted in a sentencing range of 135 to 168

months’ imprisonment. U.S. Sentencing Guidelines Manual, Sentencing Table (2002). However, the

court recognized that Williams was subject to a mandatory minimum sentence of twenty years or 240

months’ imprisonment. The guidelines instruct that “[w]here a statutorily required minimum sentence

is greater than the maximum of the applicable guideline range, the statutorily required minimum


                                                  -5-
sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b). Moreover, this court has held that “the

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

mandatory minimum sentence itself.” United States v. Stewart, 306 F.3d 295, 332 (6th Cir. 2002). The

court therefore applied an offense level of 34,2 which is the lowest offense level that, combined with

Williams’s criminal history category of IV, provided for a sentencing range that included 240 months.

After decreasing the offense level by two for acceptance of responsibility and granting the government’s

§ 3553(e) motion and departing downward by two levels, the court arrived at an adjusted offense level

of 30. The foundation of Williams’s sentence was the mandatory minimum sentence; the § 2D1.1(c)

base offense level had no impact on Williams’s sentence. Accordingly, Williams’s sentence was not

“based on” a sentencing range that has been lowered by Amendment 750.

        This outcome is consistent with Sixth Circuit precedent. In United States v. Johnson, 564 F.3d

419 (6th Cir. 2009), the defendant pled guilty to trafficking crack cocaine and faced a twenty-year

mandatory minimum sentence, but the court granted the government’s motion to lower Johnson’s

sentence based on his substantial assistance. Id. at 420. Johnson later sought a sentence reduction

based on Amendment 706. Id. at 421. The court held that Johnson’s sentence was “based on” the

mandatory minimum sentence, which remained unchanged by Amendment 706. It reasoned that if

Johnson were resentenced after passage of Amendment 706, the guidelines would still require 240

months’ imprisonment and the court would depart from the guideline range dictated by the mandatory



        2
        Williams claims that “the district court began its analysis with . . . the offense level
corresponding to [the quantity of crack associated with the offense] in the applicable guidelines Drug
Quantity Table . . . . After relevant adjustments, the district court arrived at an adjusted offense level
of 30.” This is a mischaracterization of the district court’s calculations. Had the court begun with
an offense level of 32, it would have arrived at an adjusted offense level of 28 after decreasing the
offense level for acceptance of responsibility and granting the substantial assistance motion.

                                                    -6-
minimum if faced with a substantial assistance motion. Id. at 423. This case is analogous in all

relevant respects to Johnson; the fact that Williams moves for a sentence reduction pursuant to

Amendment 750, rather than Amendment 706, does not change the analysis. The same reasoning was

applied by this court in United States v. McPherson, 629 F.3d 609, 611–12 (6th Cir. 2011), to find the

defendant ineligible for a sentence reduction where he was subject to a mandatory minimum sentence

that exceeded the maximum of the otherwise applicable guideline range.3

        Finding Williams ineligible for a sentence reduction also is consistent with cases where this

court has held that the defendant’s sentence was “based on” a sentencing range that was lowered by

amendments to the § 2D1.1(c) base offense levels. Jackson, 678 F.3d at 446; Hameed, 614 F.3d at

260. In both Jackson and Hameed, the district court explicitly considered the § 2D1.1(c) base offense

level in the process of determining the defendant’s sentence. Like Williams, the defendant in Hameed

pled guilty to a crack cocaine trafficking charge and was subject to a mandatory minimum sentence

above the otherwise applicable guideline range. 614 F.3d at 260. The district court granted the

government’s § 3553(e) motion, finding Hameed eligible for a sentence below the mandatory minimum

based on his substantial assistance. Id. However, the district court calculated Hameed’s sentence

differently than the district court here calculated Williams’s sentence. It “began [its] departure analysis

from the base offense level applicable under § 2D1.1.” Id. at 264. On appeal, this court recognized that

the base offense level applicable under § 2D1.1(c) “was not the correct point from which the departure

should have been measured.” Id. at 268. By contrast, here the district court began its departure analysis

from the correct point—the base offense level derived from Williams’s mandatory minimum sentence.


       3
         The “otherwise applicable guideline range” refers to the range that is calculated by reference
to the defendant’s total offense level and criminal history category, but that is replaced by the
statutory mandatory minimum.

                                                   -7-
Whereas Hameed’s sentence was in fact based on the § 2D1.1(c) base offense level, albeit in error,

Williams’s sentence bears no connection to the § 2D1.1(c) base offense level.4

       The Hameed court also stated that “a district judge’s mere calculation of the sentencing range

under § 2D1.1 does not render a defendant’s sentence ‘based on’ the crack guidelines range if that range

is subsequently trumped by another provision of the guidelines.” Id. at 262. That is precisely what

happened here. The district court acknowledged the § 2D1.1(c) base offense level, but it was displaced

by the mandatory minimum sentence, which served as the foundation for Williams’s sentence.

       The defendant in Jackson pled guilty to intent to distribute crack cocaine, but the district court

delayed Jackson’s sentencing in anticipation that Congress would pass legislation amending the

penalties for crack cocaine convictions. 678 F.3d at 443. Eventually, the court sentenced Jackson

before Congress enacted the Fair Sentencing Act. Id. Although Jackson’s sentencing range based on

his career offender status was 188 to 235 months’ imprisonment, the court sentenced Jackson to 150

months’ imprisonment, a term within the guideline range that would have applied if Jackson had not

been a career offender. Id. This court noted that the district court varied downward based on its policy

disagreement with the guidelines’ disparity between sentences for crack and powder cocaine offenses.

Id. It therefore found that Jackson’s sentence was “based on” the crack cocaine guidelines and

remanded the case for the district court to consider whether to reduce Jackson’s sentence. Id. at 446.

Jackson is distinguishable because the district court in that case explicitly discussed its concern with

crack cocaine sentences in imposing Jackson’s sentence, raising the possibility that Jackson’s sentence

was in fact “based on” the § 2D1.1(c) base offense level amended by Amendment 750. In contrast,


       4
         Despite satisfying the “based on” test, this court found that Hameed was not eligible for a
sentence reduction because Amendment 706 did not lower Hameed’s “applicable” guideline range.
Id. at 269.

                                                  -8-
although the district court here acknowledged Williams’s base offense level under § 2D1.1(c),

Williams’s sentence was derived from the mandatory minimum sentence.

       Accordingly, we find that Williams’s sentence was not “based on” a sentencing range that has

been lowered by Amendment 750. On this basis alone, the district court’s order should be affirmed.

                                                   B.

       Although not strictly necessary, we also determine whether Amendment 750 has the effect of

lowering Williams’s applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B). Williams admits that this

court has found that a defendant’s “applicable guideline range” was not lowered by an amendment to

the § 2D1.1(c) base offense levels where the defendant was subject to a mandatory minimum sentence

that exceeded the otherwise applicable guideline range. See Hameed, 614 F.3d at 269. However,

Williams argues that this precedent is no longer controlling because prior to Amendment 750, courts

relied on their own interpretation of the phrase “applicable guideline range.” According to Williams,

Amendment 750 “added language to application note 1(A) indicating that the term [applicable guideline

range] means ‘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 Manual or any variance.’” Application note 1(A), read in full, does not have the effect

claimed by Williams. In states:

       Eligibility for consideration under 18 U.S.C. 3582(c)(2) is triggered only by an
       amendment listed in subsection (c) that lowers the applicable guideline range.
       Accordingly, a reduction in the defendant’s term of imprisonment is not authorized
       under 18 U.S.C. 3582(c)(2) and is not consistent with this policy statement if: (i) None
       of the amendments listed in subsection (c) is applicable to the defendant; or (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 guideline or statutory provision (e.g., a statutory mandatory
       minimum term of imprisonment) (i.e., the guideline range that corresponds to the offense


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       level and criminal history category determined pursuant to 1B1.1(a), which is
       determined before consideration of any departure provision in the Guidelines Manual
       or any variance).

U.S. Sentencing Guidelines Manual § 1B1.10, cmt. n. 1(A) (2012) (emphasis added). Contrary to

Williams’s assertion, this note does not establish that the “applicable guideline range” is always the

range that corresponds to the offense level and criminal history category determined pursuant to

U.S.S.G. § 1B1.1(a), before consideration of any departure or variance. Although this is typically the

applicable guideline range, as noted in the comment, in certain circumstances this range is replaced by

a statutory provision, such as the statutory mandatory minimum term of imprisonment. Id.

       This application note is consistent with U.S.S.G. § 5G1.1(b), which provides that “[w]here 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.”5 Said differently by this

court, “[w]here a mandatory minimum sentence exceeds the otherwise applicable Guidelines range . . .

it replaces the Guidelines range.” Johnson, 564 F.3d at 423 (emphasis added). In such a case, “there

is nothing anomalous with the approved ‘range’ being a single point.” United States v. Jones, 569 F.3d

569, 575 (6th Cir. 2009) (Boggs, J., concurring in part and dissenting in part). “The general import of

‘range’ in the guideline architecture is to specify all possible sentences that a judge can give without

entering the areas of considerations of ‘departures from the guideline range’ as governed by § § 5K1.1-

5K2.24 of the guidelines.” Id. We therefore conclude that where a mandatory minimum sentence



       5
         We reject the suggestion in dicta in Hameed’s majority opinion that U.S.S.G. § 5G1.1(b)
is susceptible to two reasonable interpretations, one of those being that the “applicable guideline
range” is a distinct concept from the “guideline sentence,” and where a mandatory minimum
sentence applies, that mandatory minimum becomes the guideline sentence under § 5G1.1(b), but
the guideline range remains the same. 614 F.3d at 268. This interpretation conflicts with prior Sixth
Circuit precedent. See Johnson, 564 F.3d at 423.

                                                 -10-
applies that exceeds the otherwise applicable guideline range, the mandatory minimum sentence

becomes the applicable guideline range.

       Our conclusion is consistent with decisions by other circuits holding that a defendant was

ineligible for a sentence reduction based on Amendment 706 where the defendant was subject to a

mandatory minimum sentence that exceeded the otherwise applicable guideline range. See United

States v. Roa-Medina, 607 F.3d 255 (1st Cir. 2010); United States v. Williams, 551 F.3d 182 (2d Cir.

2009); United States v. Doe, 564 F.3d 305 (3d Cir. 2009); United States v. Hood, 556 F.3d 226 (4th Cir.

2009); United States v. Jackson, 577 F.3d 1032 (9th Cir. 2009); United States v. Poole, 550 F.3d 676

(7th Cir. 2008); United States v. Johnson, 517 F.3d 1020 (8th Cir. 2008).

       Finally, we reject Williams’s argument that relies on the guidelines’ exception to its general

prohibition of reducing a prison term to a sentence that is lower than the bottom of the amended

guideline range. The exception provides that if a term of imprisonment was less than the term provided

for by the applicable guideline range because of a downward departure due to the defendant’s

substantial assistance, the court may impose a sentence below the amended guideline range that is

comparably less to reflect the defendant’s substantial assistance. U.S. Sentencing Guidelines Manual

§ 1B1.10(b)(2)(B) (2012). Application note 3 explains this guideline provision and states that

       provisions authorizing [a substantial assistance motion] are 5K1.1 . . . (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).

U.S. Sentencing Guidelines Manual § 1B1.10, cmt. n.3 (2012) (emphasis added). This note suggests

that defendants are entitled to a sentence reduction in at least some instances where the court departed



                                                 -11-
below the mandatory minimum. Williams argues that “[t]his comment would be unnecessary and moot

if this Court assumes that a defendant who cooperated could not be re-sentenced below the mandatory

minimum.” However, as the government points out, this note applies when a defendant’s applicable

guideline range exceeds the mandatory minimum sentence. In such a case, the defendant’s sentence

would be “based on” the § 2D1.1(c) base offense level, but to sentence the defendant below the

mandatory minimum, the government would have to bring a motion pursuant to 18 U.S.C. § 3553(e).

This guideline provision and application note therefore do not undermine our conclusion that

Amendment 750 does not lower Williams’s applicable guideline range.

                                                 III.

       For the reasons provided above, we affirm the district court’s order finding Williams ineligible

for a sentence reduction.




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