          United States Court of Appeals
                     For the First Circuit


No. 15-1416

                   UNITED STATES OF AMERICA,

                           Appellee,

                               v.

                        ANTHONY VAUGHN,

                     Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                             Before

                   Lynch, Selya, and Kayatta,
                         Circuit Judges.


     David J. Apfel, with whom Goodwin Procter LLP was on brief,
for appellant.
     Jennifer Hay Zacks, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.


                       November 18, 2015
           LYNCH,   Circuit      Judge.        Anthony      Vaughn    appeals     the

district court's denial of his motion for a sentence reduction

under 18 U.S.C. § 3582(c)(2).            Because he is ineligible for the

reduction, we affirm.

                                        I.

           This    sentencing        appeal    is   about    two     separate     and

independent    federal     crimes,     committed     at     separate     times    and

sentenced separately by two different judges.

           As to the first crime, on April 11, 2002, Vaughn pleaded

guilty to possession of cocaine with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.                 The district

court calculated a guideline sentencing range of 168 to 210 months

of imprisonment.    On August 28, 2002, Vaughn was sentenced to 168

months of imprisonment.

           As to the second crime, on November 27, 2012, while

Vaughn was serving his 2002 sentence, he pleaded guilty to a

separate charge of conspiracy to possess with intent to distribute

cocaine and heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1).

The charge related to Vaughn's attempts to have heroin smuggled

into the federal prison where he was imprisoned. On June 13, 2013,

Vaughn   was   sentenced    as   a    career    offender     to    120   months    of

imprisonment, to run consecutively to the 168-month term he was

already serving. Asked by the district court about the interaction

between the two sentences, the probation officer stated during the


                                       - 2 -
sentencing    hearing   that   the    Bureau        of    Prisons   (BOP)    would

"aggregate the entire sentence," meaning that "[BOP] will add it

to the other [2002] sentence and then reconfigure the whole

sentence."

             Vaughn   completed      the     part        of   his   prison    time

attributable to his 2002 sentence on December 27, 2014. He remains

in prison because of his second crime.               His anticipated date of

release is September 12, 2023.

             In November 2014, Vaughn filed a pro se motion in the

district court for reduction of his sentence under 18 U.S.C.

§ 3582(c)(2).    His motion was based on U.S.S.G. Amendments 782 and

788, which retroactively reduced by two levels the base offense

level for many drug offenses.         He argued that he was entitled to

a sentence reduction of 33 months to reflect the lower guideline

sentencing range as to his first crime.                       The district court

appointed counsel for Vaughn and requested a joint status report

outlining the parties' positions.

             In the joint status report, the government opposed the

motion.   It argued that only Vaughn's 2002 sentence was eligible

for reduction but that there could be no reduction on that sentence

because he had already finished serving that sentence.                Vaughn did

not contest the government's position that his 2013 sentence,




                                     - 3 -
standing alone, was ineligible for reduction.1   However, he argued

that he was serving a single aggregated sentence of 288 months

(168 months on the 2002 sentence plus 120 months on the 2013

sentence), and that he was entitled to a 33-month reduction on

that combined sentence.

          On March 26, 2015, the district court denied the motion

in a summary order.

                               II.

A.   Standard of Review and Applicable Law

          We review a denial of a sentence reduction for abuse of

discretion.   United States v. Caraballo, 552 F.3d 6, 8 (1st Cir.

2008).   Because Vaughn claims legal error by the district court

and "[a] material error of law is perforce an abuse of discretion,"

id., our review is effectively de novo.   United States v. Fanfan,

558 F.3d 105, 107 (1st Cir. 2009).

          A federal court generally “may not modify a term of

imprisonment once it has been imposed.”   18 U.S.C. § 3582(c).   One

exception is that:

          [I]n 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 . . . the
          court may reduce the term of imprisonment,
          after considering the factors set forth in

     1 Both parties agree that the 2013 sentence is ineligible for
reduction because that sentence was based on a career offender
base offense level, which was unaffected by Amendment 782. See
United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008).


                              - 4 -
             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). The relevant policy statement is contained

in U.S.S.G. § 1B1.10.

             Section 3582(c)(2) establishes a two-step inquiry under

which the district court must first determine whether a reduction

is authorized by § 1B1.10 and, if so, the extent of any authorized

reduction.       Dillon v. United States, 560 U.S. 817, 826–27 (2010).

The second step is to determine whether a reduction is warranted

according to the factors set out in 18 U.S.C. § 3553(a).            Id. at

827.    The decision at step two is "a matter committed to the

sentencing court's sound discretion."          United States v. Aponte-

Guzmán, 696 F.3d 157, 161 (1st Cir. 2012).

             Section 1B1.10 authorizes a sentence reduction only when

one    of   an   enumerated   list   of   guideline   amendments   applies.

U.S.S.G. § 1B1.10(a)(1), (d).        Among those amendments is Amendment

782, effective as of November 1, 2014, which reduced by two levels

the base offense level for many drug offenses.              Amendment 788

amended § 1B1.10 to authorize district courts to apply Amendment

782 retroactively, provided that "the effective date of the court's

order is November 1, 2015, or later."         U.S.S.G. § 1B1.10(e)(1).




                                     - 5 -
B.     Eligibility for Sentence Reduction

               The district court did not explain the reason for its

denial of Vaughn's motion.        It is unclear whether the district

court found that Vaughn was ineligible for a sentence reduction or

whether it thought he was eligible but exercised its discretionary

power under § 3582(c)(2) to deny the reduction.             We believe from

the circumstances that the denial was based on ineligibility.2

Because we conclude that Vaughn was ineligible for the sentence

reduction, we affirm the result.             We resolve the problem on the

plain language of the relevant statutes and guideline provisions.

               Vaughn is ineligible for relief under Amendment 782

because he has already served the entirety of his otherwise

eligible      sentence.    Because    the     applicable   policy   statement

provides that "[i]n no event may the reduced term of imprisonment

be less than the term of imprisonment the defendant has already

served,"      U.S.S.G. § 1B1.10(b)(2)(C), no reduction is available to

him.       The sentence he is currently serving is a separate sentence

for his second crime that is not eligible for a reduction under

Amendment 782.

               Vaughn argues that he is nonetheless eligible for a

sentence reduction because he is serving an aggregate sentence of




       2
       We encourage the district courts to give some explanation
for such orders, so as to avoid questions about the grounds on
which they are based.


                                     - 6 -
288 months that should be considered a single, undivided whole.

He relies principally on 18 U.S.C. § 3584(c), which provides that

"[m]ultiple terms of imprisonment ordered to run consecutively or

concurrently shall be treated for administrative purposes as a

single, aggregate term of imprisonment."            He also points to the

probation officer's statement at his 2013 sentencing hearing that

BOP will "aggregate the entire sentence."

             Section   3584(c)     does   not   support   Vaughn's    position

because   it   specifies    that    aggregation    is   "for   administrative

purposes," and the issue at hand is judicial, not administrative.

The BOP is responsible for administration of sentences. See United

States v. Wilson, 503 U.S. 329, 335 (1992) ("After a district court

sentences a federal offender, the Attorney General, through the

BOP,   has   the   responsibility     for    administering     the   sentence."

(emphasis added)).      A sentence reduction under § 3582(c)(2), on

the other hand, involves discretionary decision-making by the

district court and cannot be described as administrative. Applying

§ 3584(c) to this situation would essentially rewrite the statute

to extend aggregation to all purposes.

             Vaughn also relies on case law from the Seventh Circuit

and various district courts that have, in limited circumstances,

aggregated consecutive sentences for the purpose of a § 3582(c)(2)

sentence reduction.        See United States v. Clarke, 499 F. App'x

579, 582 (7th Cir. 2012); United States v. Kaman, No. 3:09-CR-141,


                                     - 7 -
2015 WL 2226213, at *2 (E.D. Tenn. May 12, 2015); United States v.

Brown, No. 2:04-cr-00088, 2013 WL 1819795, at *5–6 (W.D. Pa. Apr.

29, 2013); United States v. Wilkerson, No. 00-cr-10426, 2010 WL

5437225, at *1–3 (D. Mass. Dec. 23, 2010); United States v. Martin,

602 F. Supp. 2d 611, 614–15 (E.D. Pa. 2009); United States v.

Bolin, No. 2:02-cr-176-1, 2008 WL 928397, at *1–3 (S.D. Ohio Apr.

7, 2008).    But see United States v. Yarber, No. 00-CR-20031, 2008

WL 695362, at *3–4 (C.D. Ill. Mar. 12, 2008).         To the extent that

those cases relied on § 3584(c)'s direction to the BOP to aggregate

consecutive sentences for administrative purposes, their reasoning

is unpersuasive as to our problem, for the reason stated above.

Furthermore, those cases are distinguishable on the basis that

each of them concerned consecutive sentences that were imposed at

the   same    time   by   the    same   judge.     Even   supposing   that

simultaneously imposed consecutive sentences could be aggregated

for the purpose of a § 3582(c)(2) sentence reduction -- an issue

that we do not decide here -- this case is different because

Vaughn's     sentences    were   imposed    separately.    Simultaneously

imposed consecutive sentences often do not make clear in what order

the sentences should be served, so fairness concerns may be raised

by a denial of a § 3582(c)(2) sentence reduction on the basis that

the only eligible part of the total time of imprisonment has

already been served. See Brown, 2013 WL 1819795, at *6 (expressing

concern that it was "impossible to discern" the order of the


                                    - 8 -
sentences); cf. Jones v. Thomas, 491 U.S. 376, 386 (1989) ("There

is no indication that the order of the sentences was of the

slightest importance to the sentencing judge, and there is no

reason     constitutional      adjudication       should     turn      on   such

fortuities.").    There is no such fairness concern when, as here,

a defendant commits a crime while incarcerated and receives an

additional consecutive sentence while he is already serving the

first sentence.      In fact, other courts that have considered a

sentence    reduction   for    the   first   of   two    separately     imposed

consecutive sentences have rejected Vaughn's argument.                See United

States v. Parker, 472 F. App'x 415, 417 (7th Cir. 2012); United

States v. Gamble, 572 F.3d 472, 473–75 (8th Cir. 2009).

            Vaughn also makes an unpersuasive textual argument.

Relying on the district court's reasoning in Bolin, Vaughn begins

with the premise that a defendant is eligible for a sentence

reduction when he "is serving a term of imprisonment, and the

guideline range applicable to that defendant has subsequently been

lowered."     Bolin,    2008   WL    928397,   at   *2     (quoting    U.S.S.G.

§ 1B1.10(a)(1)).     Vaughn argues that § 1B1.10 "refers simply to

'a' term of imprisonment, not to any specific portion of the

consecutive or continuous term of imprisonment impacted by the

amendment."    Id.     But that argument assumes its own conclusion.

The fact that § 1B1.10 uses a singular "a" says nothing about




                                     - 9 -
whether Vaughn is serving one single term of imprisonment or two

separate back-to-back terms of imprisonment for purposes of § 3582.

            Finally, Vaughn analogizes to Supreme Court precedent in

habeas cases concerned with the "in custody" requirement.                In

Garlotte v. Fordice, 515 U.S. 39 (1995), the Supreme Court held

that a habeas petitioner remained "in custody" and could challenge

a   state   conviction    underlying   the   first   of   two   consecutive

sentences even after the technical expiration of the first sentence

because     the    consecutive   sentences   "compos[ed]    a    continuous

stream."    Id. at 41.     The Court relied on its earlier decision in

Peyton v. Rowe, 391 U.S. 54 (1968), which held that prisoners

incarcerated under consecutive state court sentences could apply

for federal habeas relief from sentences they had not yet begun to

serve. Id. at 55. However, it is far from certain whether Garlotte

applies to separately imposed consecutive sentences.            The Court in

Garlotte placed weight on the portion of the sentencing hearing in

which the prosecutor expressed indifference about the order of the

two consecutive sentences and the defense counsel did not argue

the issue.        515 U.S. at 41–42.   The Court expressed its concern

that it was mere happenstance that the sentences were not in

inverse order such that the petitioner would have been granted

relief under Peyton.       Id. at 44–45.     It is not clear whether it

was necessary to the Court's holding that the consecutive sentences




                                   - 10 -
there were simultaneously imposed.3    Even if Garlotte does apply

to separately imposed consecutive sentences, federal habeas is a

unique context and the "in custody" requirement has traditionally

received a liberal construction that may be fairly viewed as sui

generis.   See id. at 45 (recognizing that the Court has "very

liberally construed the 'in custody' requirement for purposes of

federal habeas" (quoting Maleng v. Cook, 490 U.S. 488, 492 (1989)

(per curiam))); see also Schlesinger v. Councilman, 420 U.S. 738,

752 (1975) (recognizing special constitutional status resulting

from unique interest in maintaining the availability of habeas).

As such, we decline to rely on the habeas analogy.

                               III.

           For the reasons stated, we affirm.




     3 Two circuits have decided it was not.        See DeFoy v.
McCullough, 393 F.3d 439, 442 (3d Cir. 2005); Foster v. Booher,
296 F.3d 947, 950 (10th Cir. 2002). Our circuit has not decided
the issue, and we express no opinion on the question here.


                              - 11 -
