                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                    ______

                      No. 12-1330
                        ______

           UNITED STATES OF AMERICA,
                    Appellant

                           v.

                    ANDRE WARE
                       ______

     On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
         (District Court No. 2-08-cr-00625-001)
     District Court Judge: Honorable Jan E. DuBois
                         ______

    Submitted Pursuant to Third Circuit LAR 34.1(a)
                 September 11, 2012

Before: SMITH, CHAGARES and GARTH, Circuit Judges.
                      No. 12-1671
                        ______

           UNITED STATES OF AMERICA,

                            v.

                  ALLEN STRATTON
                        a/k/a
                    NECK BONE


                  ALLEN STRATTON,

                        Appellant
                         ______

     On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
           (District Court No. 2-99-cr-00326-001)
   District Court Judge: Honorable William H. Yohn, Jr.
                           ______

     Submitted Pursuant to Third Circuit LAR 34.1(a)
                  September 11, 2012

Before: SMITH, CHAGARES, and GARTH, Circuit Judges.

           (Opinion Filed: September 21, 2012)




                            2
Zane David Memeger, Esq.
Robert A. Zauzmer, Esq
Bernadette McKeon, Esq.
Richard A. Lloret, Esq.
United States Attorney‟s Office
Eastern District of Pennsylvania
615 Chestnut Street, Suite 1250
Philadelphia, PA 191906
(215) 861-8326
       Counsel for Appellant, 12-1330 / Appellee, 12-1671

Sarah S. Gannett, Esq.
Brett G. Sweitzer, Esq.
Leigh M. Skipper, Esq.
Federal Community Defender Office
for the Eastern District of Pennsylvania
Suite 540 West – Curtis Center
601 Walnut Street
Philadelphia, PA 19106
(215) 928-1100
        Counsel for Appellant, 12-1671/ Appellee, 12-1330

                           ______

                OPINION OF THE COURT
                        ______

GARTH, Circuit Judge.
       In these two appeals, we are called upon to resolve the
alleged tension between the sentencing statutes and the
Sentencing Guidelines. Andre Ware and Allen Stratton, both
serving sentences for various offenses involving crack
cocaine, each moved in their respective cases for reductions




                              3
in their sentences following a retroactive amendment to the
Federal Sentencing Guidelines applicable to crack cocaine
offenses.1
       District Court Judge Dubois, presiding over Ware‟s
case, granted his motion and reduced his sentence from 128
months to 84 months. District Court Judge Yohn, presiding
over Stratton‟s case, denied his motion to reduce his sentence
from 188 months. The government appealed in Ware‟s case.
Stratton appealed from his sentence in his case.
        Both cases present the same issue: whether the
Sentencing Guidelines amendments at issue apply to
defendants who, like Ware and Stratton, were originally
sentenced on the basis of variances (Ware) or departures
(Stratton) from a guideline range not affected by the
amendments. We hold that the Sentencing Guidelines
amendments do not. Thus, we will reverse the District Court
in Ware‟s case and affirm the District Court in Stratton‟s
case.
                               I
      In August 2009, Andre Ware was convicted of several
drug offenses involving crack cocaine. His initial offense
1
  Both Ware and Stratton were street-level drug dealers.
Ware‟s conviction included counts of conspiracy to possess
crack cocaine with intent to distribute and possession of crack
with intent to distribute within 1,000 feet of a school. Ware
was found to be responsible for 1.17 grams of crack. Stratton
was convicted on counts including distribution of crack
cocaine within 1,000 feet of a school and possession with
intent to distribute within 1,000 feet of a school. He was
found responsible for 5.9 grams of crack.




                              4
level under the Sentencing Guidelines was 18, and his
criminal history category was VI. Because Ware qualified as
a career offender, his offense level was adjusted to 34, and his
criminal history category remained VI. Under that level and
category, the guideline range for Ware‟s sentence was 262
months to 327 months‟ imprisonment. At sentencing, the
District Court indicated that it felt that this range was too high
and granted a downward variance, sentencing him to 128
months‟ imprisonment.
        In 2010, the Sentencing Commission promulgated an
amendment to the Sentencing Guidelines that, effective
November 1, 2011, reduced the base offense levels for crack
cocaine offenses by increasing the weight of drugs associated
with each offense level. U.S.S.G., App. C, amd. 750.
Simultaneously, the Commission also promulgated a further
amendment, Amendment 759, also effective November 1,
2011, adding the relevant portions of Amendment 750 to the
list of amendments that may trigger a retroactive sentence
reduction. In the course of making these amendments, the
Commission also modified the Commentary to its policy
statement governing the retroactive application of Guidelines
amendments. The amended Commentary specifies:
       . . . 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 (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 Manual or any variance). . . .




                                5
U.S.S.G. §1B1.10 cmt. 1(A).
       In 2011, Ware moved for a reduction in his sentence
pursuant to 18 U.S.C. § 3582(c)(2).2 Ware argued before the
District Court that he was eligible for a sentence reduction
notwithstanding the fact that under the amended Guidelines
Commentary his “applicable guidelines range” was
determined by his career offender status, precluding him
from qualifying for a reduction. Specifically, Ware contended
that the Guidelines Commentary is invalid and therefore not
binding because it directly conflicts with § 3582(c)(2).
District Court Judge Dubois agreed, concluding that “[t]o the
extent that U.S.S.G. § 1B1.10‟s Application Notes
Commentary prohibits the Court from reducing [Ware]‟s
sentence, it is incompatible with 18 U.S.C. § 3582(c)(2) as
interpreted by the Supreme Court [in Freeman v. United
States, 131 S. Ct. 2685, 180 L. Ed. 2d 519 (2011)] and is
invalid.” Judge Dubois further concluded that a reduction in
Ware‟s sentence was consistent with the purposes of both
Congress and the Sentencing Commission and reduced his
sentence to 84 months. As noted, the government appealed.
                                II
        In December 2000, Allen Stratton was convicted of
several drug offenses involving crack cocaine. His initial
offense level under the Sentencing Guidelines was 32, and his
initial criminal history category was IV. Because Stratton
qualified as a career offender, however, his criminal history
category was adjusted to VI, and his adjusted offense level
was 37. Under that level and category, the guideline range

2
    See text, infra Part III.




                                6
for Stratton‟s sentence was 360 months to life imprisonment.
At sentencing, Judge Yohn indicated that he felt that this
range was too high and granted a downward departure for
over-representation of criminal history, thereby reducing
Stratton‟s offense level to 34 and his criminal history
category to V. Under this calculation, Stratton faced a
guideline range of 235-293 months. Judge Yohn sentenced
him to 240 months.
      In 2008, following a 2007 amendment to the
Sentencing Guidelines reducing the offense level for crack
cocaine offenses, U.S.S.G., App. C, amd. 706, Stratton filed a
motion under § 3582(c)(2) for a reduction in sentence, which
was granted, reducing his term to 188 months.
       In 2011, Stratton filed another motion for a reduction
in his sentence in light of Amendment 750. As Ware did,
Stratton argued that the Guidelines Commentary precluding
his receiving a reduction is invalid because it directly
conflicts with § 3582(c)(2). Judge Yohn disagreed and
determined that Stratton was not eligible for a reduction in
sentence under § 1B1.10. Stratton appealed.
                              III
       The District Court had jurisdiction over both cases
under 18 U.S.C. § 3231. This court has jurisdiction pursuant
to 28 U.S.C. § 1291.
       Ordinarily, we review a District Court determination
on a motion for a § 3582(c)(2) reduction of sentence for abuse
of discretion. Because this case raises a purely legal question
concerning the interpretation and legal status of § 3582(c)(2)
and the related policy statement by the Sentencing




                              7
Commission, however, our review is plenary. United States
v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009).
       Before addressing the arguments before us, we briefly
outline the relevant statutory and Guidelines sections.
       Section 3582(c)(2), under which both Ware and
Stratton sought sentence reductions, provides that “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 . .
. upon motion of the defendant . . . the court may reduce the
term of imprisonment . . . if such a reduction is consistent
with applicable policy statements issued by the Sentencing
Commission.” (Emphasis added.) The relevant Sentencing
Commission policy statement, § 1B1.10(a)(1), in turn
provides that, in general:
      In a case in which a defendant is serving a term
      of imprisonment, and the guideline range
      applicable to that defendant has subsequently
      been lowered as a result of an amendment to the
      Guidelines Manual [that is among those listed
      in § 1B1.10 (c)], the court may reduce the
      defendant‟s term of imprisonment as provided
      by 18 U.S.C. 3582(c)(2). As required by 18
      U.S.C. 3582(c)(2), any such reduction in the
      defendant’s term of imprisonment shall be
      consistent with this policy statement.
(Emphasis added.)
        Section 1B1.10(a)(2) contains the following exclusion
to this general rule: “A reduction in the defendant‟s term of
imprisonment is not consistent with this policy statement and




                              8
therefore is not authorized under 18 U.S.C. 3582(c)(2) if . . .
[the amendment] does not have the effect of lowering the
defendant’s applicable guideline range.” (Emphasis added.)
        Of particular salience to this appeal, Commentary to §
1B1.10 further provides: “. . . 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 (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
Manual or any variance). . . .” Section 1B1.10 cmt.
1(A)(emphasis added.) The parenthetical explaining that
“applicable guideline range” is to be calculated prior to any
variance or departure was inserted into the Commentary as
part of Amendment 759.
        All parties to these appeals agree that although
Amendment 750 is a retroactive amendment as specified in §
1B1.10 (c), the Commentary to § 1B1.10 precludes both
Ware and Stratton from being eligible for sentence reductions
under § 3582(c)(2). Under the Commentary, the “applicable
guideline range” for both would be the guideline range
reflecting their career offender designations, which were not
affected by Amendment 750. Since the “applicable guideline
range” was not lowered by Amendment 750, the Commentary
makes clear that § 1B1.10 is inapplicable in these cases. The
dispositive issue in these appeals, therefore, is whether the
Commentary to § 1B1.10 is binding on the District Court.
                              IV
      The Sentencing Commission is authorized, when it
reduces the sentence for a given offense, to determine “in




                              9
what circumstances and by what amount the sentences of
prisoners serving terms of imprisonment for the offense may
be reduced.” 28 U.S.C. § 994(u). The Supreme Court has
recognized that through this statutory delegation “Congress
has granted the Commission the unusual explicit power to
decide whether and to what extent its amendments reducing
sentences will be given retroactive effect.” Braxton v. United
States, 500 U.S. 344, 348, 111 S. Ct. 1854, 1858, 114 L. Ed.
2d 385 (1991)(emphasis in original). The Supreme Court has
further recognized that as a result of this statutory delegation,
“[a]mended commentary is binding on the federal courts even
though it is not reviewed by Congress, and prior judicial
constructions of a particular guideline cannot prevent the
Commission from adopting a conflicting interpretation that
satisfies the standard we set forth today.” Stinson v. United
States, 508 U.S. 36, 46, 113 S. Ct. 1913, 1919, 123 L. Ed. 2d
598 (1993). Under the aforementioned standard, “provided an
agency‟s interpretation of its own regulations does not violate
the Constitution or a federal statute, it must be given
„controlling weight unless it is plainly erroneous or
inconsistent with the regulation.‟” Id. at 508 U.S. 45, 113 S.
Ct. 1919 (quoting Bowles v. Seminole Rock & Sand Co., 325
U.S. 410, 414, 65 S. Ct. 1215, 1217, 89 L.Ed. 1700 (1945)).
Thus, the Sentencing Commission‟s authority to restrict the
retroactive effect of an amendment is circumscribed by the
principle that when “the Commission‟s revised commentary
is at odds with [a statute‟s] plain language . . . it must give
way.” United States v. LaBonte, 520 U.S. 751, 757 (1997).
Ware and Stratton contend that the Commentary in question
conflicts with § 3582(c)(2) and must therefore “give way.”
       The plain language of § 3582(c)(2) authorizing the
court to reduce the sentence of a defendant who was
sentenced “based on a sentencing range that has subsequently




                               10
been lowered by the Sentencing Commission” provided such
a reduction is also “consistent with applicable policy
statements issued by the Sentencing Commission” precludes
Ware and Stratton‟s argument. As we have recognized, “[t]he
plain language of § 3582(c)(2) requires that a sentence
reduction be „consistent with applicable policy statements
issued by the Sentencing Commission.‟ § 3582(c)(2). The
plain language of the statute, therefore, specifically
incorporates the Commission‟s policy statements . . . .”
United States v. Doe, 564 F.3d 305, 310 (3d Cir. 2009).
        In Doe, the defendants, who had been convicted of
crack cocaine offenses and had been granted departures from
their respective statutory mandatory minimum sentences for
having assisted the government, contended that the District
Court had improperly denied their § 3582(c)(2) motions for
sentence reduction following a retroactive Guidelines
amendment reducing the offense level for crack cocaine
offenses. Doe claimed, inter alia, that the Guidelines policy
statement precluding a reduction where an amendment “does
not have the effect of lowering the defendant‟s applicable
guideline range,” § 1B1.10(a)(2)(B), improperly reinterpreted
the term “based on” in § 3582(c)(2) and did not control
because it conflicted with the broader terms and
congressional intent of § 3582(c)(2). We rejected Doe‟s
premise that the Guidelines statement improperly redefined
the statutory term “based on.” See United States v. Flemming,
617 F.3d 252, 260 n. 11 (3d Cir. 2010), as amended (Sept. 27,
2010). In so doing, we observed:
      Not only did Congress intend to incorporate the
      Commission‟s policy statements into §
      3582(c)(2), but the policy statement and §
      3582(c)(2) are complementary. The first prong




                             11
      of § 3582(c)(2) requires that a defendant have
      been sentenced based on a sentencing range that
      has subsequently been lowered. The policy
      statement requires that the amendment must
      have actually had the effect of lowering the
      Guideline range. Although the policy statement
      is narrower, it certainly does not run contrary to
      § 3582(c)(2).
Doe, 564 F.3d at 310-11. For the same reasons articulated in
Doe, the Commentary at issue in the present case, which
elaborates upon which modifications will qualify as lowering
the guideline range under the policy statement complements,
rather than contradicts, the terms of § 3582(c)(2).
        In reaching the opposite conclusion, Judge Dubois in
Ware‟s case relied heavily on the United States Supreme
Court‟s decision in Freeman v. United States, 131 S. Ct.
2685, 180 L. Ed. 2d 519 (2011), and Ware and Stratton
likewise invoke Freeman as the ground for their argument on
appeal. This reliance is misplaced. In Freeman, the court
interpreted § 3582(c)(2)‟s “based on” language to determine
whether a defendant sentenced according to a plea agreement
that recommended a particular sentence pursuant to Fed. R.
Crim. Proc. 11(c)(1)(C) could be eligible for a sentence
reduction under § 3582(c)(2). Justice Sotomayor, in a
separate opinion that results in the court‟s holding, held that
“if a [plea agreement pursuant to Rule 11(c)(1)(C)] expressly
uses a Guidelines sentencing range applicable to the charged
offense to establish the term of imprisonment, and that range
is subsequently lowered by the United States Sentencing
Commission, the term of imprisonment is „based on‟ the
range employed and the defendant is eligible for sentence
reduction under § 3582(c)(2).” Id. at 2695 (Sotomayor, J.,




                              12
concurring).3 Ware and Stratton now claim that the
Commentary to § 1B1.10 improperly defines “applicable
guideline range” in a manner inconsistent with the “based on”
language of § 3582(c)(2) as interpreted by Justice Sotomayor
and the Supreme Court.
       As discussed previously, the Commentary at issue in
these appeals does not present an interpretation of the
statutory term “based on,” but rather presents an additional,
complementary limit on sentences eligible for reduction
pursuant to § 3582(c)(2). This limit is statutorily authorized
by the requirement that a reduction be “consistent with
applicable policy statements issued by the Sentencing
Commission.” The meaning of the term “based on” – and
hence the holding of Freeman – is simply not germane to the
present appeals.4


3
  A plurality of the Justices concluded that the court could
“revisit a prior sentence to whatever extent the sentencing
range in question was a relevant part of the analytic
framework the judge used to determine the sentence.”
Freeman, 131 S.Ct. at 2692-93. Justice Sotomayor concurred
in the judgment, but on narrower reasoning that would permit
reduction only in a subset of cases reviewable under the
plurality approach. Justice Sotomayor‟s narrower reasoning
thus stands as the binding holding of the court. Marks v.
United States, 430 U.S. 188, 193 (1977).
4
  Moreover, Freeman was decided prior to the amendment of
the Guidelines commentary that added the language at issue
in these appeals. As we have recognized, § 3582(c)(2)
expressly incorporates the Guidelines policies, and therefore
modification of the relevant policies may affect the proper
interpretation of the statute as a whole. It is clear, moreover,




                              13
        We also note that this conclusion is consistent with our
recent opinions in United States v. Barney, 672 F.3d 228 (3d
Cir. 2012), and United States v. Berberena, ___ F. 3d ___,
2012 WL 3937666 (3d Cir. September 11, 2012). In Barney,
which dealt with a separate provision of the Sentencing
Guidelines and was decided after Amendment 759 took
effect, we considered “what is the „applicable guideline
range‟ for a career offender receiving a . . . departure under a
post-2003 edition of the Guidelines.” Id. at 231. We
concluded that there is “no doubt that a § 4A1.3 departure is a
departure from the applicable guideline range, not a departure
to the applicable guideline range.” Id. at 231-32 (emphasis in
original). The applicable guideline range, we reasoned, is
“the range dictated by the Career Offender Guidelines, not
[the post-] departure range.” Id. at 232. We further noted
that this conclusion was consistent with Amendment 759. Id.
at 232 n.1. Neither Ware nor Stratton has articulated any
meaningful distinction between the question presented in this



that the Sentencing Commission may modify the Guidelines
and associated commentary in a manner that abrogates prior
judicial decisions, much as Congress may amend a statute
previously interpreted by the courts. See Braxton, 500 U.S. at
348, 111 S. Ct. at 1858 (declining to resolve circuit split
regarding meaning of Guideline where Sentencing
Commission was in process of amending Guideline in manner
that would resolve conflict); Stinson, 508 U.S. 36, 46, 113 S.
Ct. 1913, 1919 (“prior judicial constructions of a particular
guideline cannot prevent the Commission from adopting a
conflicting interpretation . . . “). Thus, even if the meaning of
“based on” in the context of § 3582(c)(2) were at issue in the
present appeals, Freeman would not be controlling.




                               14
case and the question previously resolved in Barney, nor are
we aware of any such distinction.
       In Berberena we addressed several challenges to the
Commission‟s authority to promulgate an amended policy
statement to § 1B1.10 that generally prevented courts from
reducing a defendant‟s sentence to a term less than the
amended guideline range. Most relevant, we rejected
Berberena‟s claim that the policy statement exceeded the
Commission‟s statutory authority by intruding on judges‟
sentencing authority. In doing so, we noted that “the
unfettered judicial discretion that Defendants seek to preserve
is at odds with the narrow scope of § 3582(c)(2) sentence
reduction proceedings.” Berberena, ___ F. 3d at ___, 2012
WL 3937666, at *5.
       We therefore conclude that the Sentencing
Commission‟s Commentary defining “applicable guideline
range” in such a manner as to exclude ranges determined as
the result of variances and departures is not at odds and is not
in conflict with the plain language of § 3582(c)(2) and is
therefore binding on the District Courts. As we have
determined the Commentary at issue to be valid, Ware and
Stratton were not entitled to reductions of their sentences.
                               V
       We will reverse the District Court‟s order entered on
January 9, 2012 (our appeal no. 12-1330) granting Ware‟s
motion for reduction of sentence, and we will affirm the
District Court‟s order entered on February 28, 2012 (our
appeal no. 12-1671) denying Stratton‟s motion for reduction
of sentence.




                              15
