               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0472n.06

                                       Case No. 12-5472                              FILED
                                                                                  Jul 01, 2014
                         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 MIDDLE DISTRICT OF
SOLATHUS JOHNSON,                                   )     TENNESSEE
                                                    )
       Defendant-Appellant.                         )
                                                    )
                                                    )


BEFORE: SILER, GRIFFIN, and STRANCH, Circuit Judges.

       SILER, Circuit Judge. Defendant Solathus Johnson appeals the denial of his motion for

a reduction of his 87-month sentence pursuant to 18 U.S.C. § 3582(c)(2). He was sentenced in

2009 for distribution of crack cocaine. In 2012, he filed a motion for a sentence reduction under

§ 3582(c)(2), arguing that the district court should retroactively apply amended sentencing

guidelines for crack cocaine offenses to his previously imposed sentence. The district court

denied his motion, reasoning that Johnson’s status as a career offender barred him from a

sentence reduction under § 3582(c)(2). For the reasons that follow, we AFFIRM.

                                               I.

       The facts are undisputed. In June 2008, pursuant to an agreement under Federal Rule of

Criminal Procedure 11(c)(1)(B), Johnson pleaded guilty to distributing 115.7 grams of crack
Case No. 12-5472, United States v. Johnson


cocaine in violation of 21 U.S.C. § 841(a)(1). His plea agreement specifically stated that he was

a career offender under the Sentencing Guidelines and that a ten-year mandatory minimum term

of imprisonment applied to his conviction. The agreement also stated that, with a total offense

level of 34, reduced from 37 due to acceptance of responsibility, and a criminal history category

of VI, Johnson’s anticipated sentencing guidelines range was 262 to 327 months.

       The presentence investigation report (APSR@) calculated Johnson’s sentencing guideline

range as follows: first, based on the drug quantity attributable to him of at least 115.7 grams of

cocaine base, Johnson’s base offense level was 30 under USSG § 2D1.1 for violating 21 U.S.C.

§ 841(a)(1).    Second, this base offense level was adjusted upward to 37 under USSG

§ 4B1.1(b)(A) for his status as a career offender and adjusted downward by three levels under

USSG § 3E1.1(b) for his acceptance of responsibility. Johnson fell within criminal history

category III, but this increased to category VI based on his career offender status. The PSR

recommended a total offense level of 34, a criminal history category of VI, and a sentencing

range of 262 to 327 months—which we refer to as the “career offender range.” The PSR also

noted that Johnson was subject to a ten-year mandatory minimum term of imprisonment under

21 U.S.C. § 841(b)(1)(A).

       The district court granted the government’s motion for a downward departure based on

substantial assistance under USSG § 5K1.1 and 18 U.S.C. § 3553(e), which allowed the court to

sentence Johnson below the ten-year statutory mandatory minimum and below the bottom of the

career offender range. In its final colloquy explaining and imposing Johnson’s sentence, the

district court began by stating, “[Y]ou start with an advisory guideline range based on total

offense level of 34 and Criminal History Category VI, with advisory guideline range of 262 to




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Case No. 12-5472, United States v. Johnson


327 months.” The district court recognized that this guideline range is the result of Johnson’s

“career offender designation.”

       Then, the district court acknowledged the following factors that influenced its decision to

impose a sentence significantly lower than the recommended guideline range: 1) “the career

offender designation [that] overstates [] Johnson’s actual criminal history and propensity for

future crimes”; 2) the “crack versus powder cocaine issue”; 3) “the issue of unwarranted

sentencing disparities among co-defendants”; 4) his “substantial assistance to the government”;

5) the harsh, “extraordinary conditions of [Johnson’s] confinement ”; and 6) Johnson’s position

as “not at the top of the drug organization.” Johnson had requested a downward departure from

262 months to 24 months, which the district court considered “uncalled for” and “just way too

much for someone who is a designated career offender.” It also stated that “a typical downward

departure for substantial assistance . . . would not be appropriate.”

       Thus finding that Johnson’s sentence should rest somewhere between a typical

substantial assistance reduction and Johnson’s 24-month suggestion, the district court calculated

the guideline range to be 87 to 108 months, the range that would have been imposed in

accordance with the attributable drug quantity had Johnson not been designated as a career

offender—which we refer to as the “drug quantity range.” It found this range “appropriate,”

determined that the sentence should be “at the bottom of that range because of the harsh

conditions of confinement,” and sentenced Johnson to 87 months’ imprisonment.

       Congress subsequently enacted the Fair Sentencing Act (“FSA”) in 2010, which

“increased the drug amounts triggering mandatory minimums for crack trafficking offenses

. . . [and] had the effect of lowering the 100-to-1 crack-to-powder ratio to 18-to-1.” Dorsey

v. United States, 132 S. Ct. 2321, 2329 (2012). The Sentencing Commission amended the



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Case No. 12-5472, United States v. Johnson


Guidelines Manual in response. Pub. L. No. 111-220, 124 Stat. 2372 (2010). Amendment 750

implemented the FSA by changing the drug quantity table found in USSG § 2D1.1(c) to reduce

the base offense level for most crack cocaine offenses.           USSG App. C, Amend. 750.

Amendment 759 made those changes retroactive.             USSG App. C, Amend. 759.            Both

amendments became effective on November 1, 2011. USSG App. C, Amends. 750, 759.

       In 2012, Johnson filed a motion with the district court for a sentence reduction under

§ 3582(c)(2), based on the retroactively-amended crack cocaine guidelines. He argued that the

district court sentenced him based on the drug quantity range, and the base offense level for

115.7 grams of crack cocaine was now 28, as opposed to 30. Assuming all other aspects of his

sentencing would have been the same, he contends the district court would have sentenced him

to 70 months’ incarceration, the bottom of the new sentencing range of 70 to 87 months based on

an offense level of 25 and a criminal history category of III. The district court determined that

Johnson was ineligible for a sentence reduction under § 3582(c)(2) and denied his motion. It

reasoned that United States v. Pembrook, 609 F.3d 381 (6th Cir. 2010), and the text of 18 U.S.C.

§ 3582(c)(2) and USSG § 1B1.10 barred a sentence reduction for Johnson, because his

applicable guideline range was the career offender range, not the drug quantity range, and the

FSA and new guidelines did not alter the career offender range.

                                                II.

       On appeal, Johnson argues that the district court improperly refused to grant him a

sentence reduction under § 3582(c)(2). “We ordinarily review a district court’s denial of a

§ 3582 motion for abuse of discretion.” United States v. McClain, 691 F.3d 774, 776 (6th Cir.

2012). However, “‘[w]here, as here, the district court does not simply decline to use its authority

under § 3582’ but concludes ‘that a defendant is ineligible for a sentence reduction,’ the district



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Case No. 12-5472, United States v. Johnson


court’s conclusion is a question of law that is reviewed de novo.” Id. at 776-77 (quoting United

States v. Johnson, 569 F.3d 619, 623 (6th Cir. 2009)).

                                               III.

                                               A.

       Ordinarily, a district court may not modify a term of imprisonment unless so authorized

by statute. United States v. Howard, 644 F.3d 455, 457 (6th Cir. 2011). Relevant to this case,

Congress provided authorization to modify a sentence under specific circumstances in

§ 3582(c)(2), which reads,

       [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 pursuant to 28 U.S.C. 994(o), . . . 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.

“The applicable policy statement, U.S.S.G. § 1B1.10, provides that ‘[a] reduction in the

defendant’s term of imprisonment is not consistent with this policy statement [if] . . . [a]n

amendment [to the Guidelines] does not have the effect of lowering the defendant’s applicable

guideline range.’” Pembrook, 609 F.3d at 383 (quoting USSG § 1B1.10(a)(2)(B)). In other

words, a “defendant is not eligible for a reduction of sentence under § 3582(c)(2) unless (1) his

sentence was ‘based on a sentencing range that has subsequently been lowered by the Sentencing

Commission,’ § 3582(c)(2), and (2) the amendment on which he relies ‘ha[s] the effect of

lowering the defendant’s applicable guideline range,’ USSG § 1B1.10(a)(2)(B).” United States

v. Hameed, 614 F.3d 259, 260 (6th Cir. 2010). We assume without so holding that the district

court sentenced Johnson “based on” a sentencing range that the Sentencing Commission

subsequently lowered in Amendments 750 and 759, but Johnson fails to establish the second

element of the § 3582(c)(2) test.


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Case No. 12-5472, United States v. Johnson


       The definition of “applicable guideline range” has not received consistent treatment

throughout the circuits, but within this circuit, the definition is clear. We held “that the term

‘applicable guideline range’ in U.S.S.G. § 1B1.10 refers to a defendant’s pre-departure guideline

range.” Pembrook, 609 F.3d at 384. In Pembrook, the district court granted the defendant a

downward departure from the career offender range to a sentence more analogous with the range

defined for his crack cocaine offenses, because, inter alia, the defendant’s criminal history

category significantly overrepresented the seriousness of his past conduct. Id. at 382-83. Later,

the district court denied the defendant’s motion for a sentence modification under § 3582(c)(2),

finding that his applicable guideline range—the career offender range—had not been

subsequently lowered. Id. at 383. On appeal, the defendant argued that his applicable guideline

range was the drug quantity range, but we affirmed the district court’s conclusion. Id. at 384,

387. Rejecting the post-departure definition of “applicable guideline range” adopted in the

Second and Fourth Circuits, we agreed with the Eighth and Tenth Circuits that “a defendant’s

applicable guideline range is the range produced under the guidelines’ sentencing table after a

correct determination of the defendant’s total offense level and criminal history category but

prior to any discretionary departures.” Id. (internal quotation marks and citation omitted). We

reasoned that the language of § 1B1.10 mandated such a result. Id. at 384-85.

       In order to address the “conflicting interpretations” by the circuits “about when, if at all,

the court applies a departure provision before determining the ‘applicable guideline range’ for

purposes of § 1B1.10,” the Sentencing Commission weighed in on the debate as well. USSG

App. C, at *421 (2011). In the Application Notes to USSG § 1B1.10, which Amendment 759

amended in order to provide a definition for “applicable guideline range,” the Sentencing

Commission provided,



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Case No. 12-5472, United States v. Johnson


       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).

USSG § 1B1.10 cmt. n.1(A) (emphasis added). The Sentencing Commission expressly adopted

the pre-departure approach of our circuit. See USSG App. C, Amend. 759, at *421 (“[T]he

amendment adopts the approach of the Sixth, Eighth, and Tenth Circuits and amends Application

Note 1 to clarify that the applicable guideline range referred to in § 1B1.10 is the guideline range

determined . . . before consideration of any departure provision in the Guidelines Manual or any

variance.”).

       In the years that followed, we reiterated our position on the definition of applicable

guideline range. See United States v. Joiner, 727 F.3d 601, 604 (6th Cir. 2013). In Joiner, we

determined that the applicable guideline range for the defendant was 240 months, which

represents the statutory mandatory minimum applied to the defendant as a result of his status as a

prior felony drug offender. Id. at 602-05. This was his pre-departure guideline range, despite the

district court’s citation to another guideline range when actually performing the sentencing

calculation and the more obvious relation between the imposed sentence of 107 months to the

120-to-150 month guideline range that would have applied absent the statutory mandatory

minimum. Id. at 602-03.

       When calculating Johnson’s sentence, the district court here began its analysis

acknowledging that Johnson was a career offender and that his sentencing guideline range was

the career offender range. Using this range as its point of departure, it discussed the reasons why

it would impose a significantly reduced sentence, and posited some rationale for arriving at

87 months, the low end of the drug quantity range and a term that the district court determined


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Case No. 12-5472, United States v. Johnson


more appropriately accounted for Johnson’s particular criminal history and the nature of the

present offense. Beginning with the premise that Johnson, as a career offender, was subject to

the career offender range, under Pembrook and the language of § 1B1.10, it is clear that

Johnson’s applicable guideline range—that is, the pre-departure guideline range—was the career

offender range.

       “A defendant whose sentence is based upon the career offender sentencing guideline

cannot benefit from Amendment 750 because that amendment did not lower the career offender

sentencing guidelines range.” United States v. Tillman, 511 F. App’x 519, 521 (6th Cir. 2013);

see USSG § 4B1.1(b); see also United States v. Riley, 726 F.3d 756, 759 (6th Cir. 2013).

Because changes to the Sentencing Guidelines did not affect Johnson’s career offender range, he

is not entitled to a sentence reduction under § 3582(c)(2), see Pembrook, 609 F.3d at 384, and

the district court correctly denied him relief pursuant to that statute. See United States v.

Drewery, 531 F. App’x 675, 679-82 (6th Cir. 2013); United States v. Scott, 523 F. App’x 370,

370-72 (6th Cir. 2013); Tillman, 511 F. App’x at 521.

                                                B.

       Johnson challenges this decision by citing to United States v. Jackson, 678 F.3d 442 (6th

Cir. 2012).   In that case, which was on direct appeal, the defendant sought remand for

resentencing in light of the changes to the Sentencing Guidelines enacted during the pendency of

his appeal. Id. at 444. While the PSR recommended a sentencing range of 188 to 235 months

due to the defendant’s status as a career offender, “[t]he district court did not apply the ‘career

offender’ guideline sentence and sentenced Jackson to 150 months.” Id. at 443. In that opinion,

“[w]e recognize[d] that the defendant’s criminal history required the district court to consider the

career offender guidelines,” but in reaching our decision, “we focus[ed] on the range that was



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Case No. 12-5472, United States v. Johnson


actually applied to the defendant in this case,” which was the drug quantity range. Id. at 444.

Ultimately, we held,

       If a sentencing judge, having found a defendant to be a career offender, then
       decides to sentence defendant below the range for career offenders and notes his
       policy disagreement with the crack cocaine guidelines, ordinary review would say
       that the sentence was as much “based on” the crack cocaine guidelines as the
       career offender guidelines.

Id. at 445. Under this holding, we were compelled to reverse and remand for resentencing so the

district court could evaluate whether the revised guidelines should be considered in determining

the defendant’s sentence. Id.

       Two facts in Jackson render it distinguishable from the present case. First, in Jackson,

we found that the sentencing court did not apply the career offender range, which is in direct

contravention to our finding here. See United States v. Thompson, 714 F.3d 946, 949 (6th Cir.

2013). If, as in Jackson, we reviewed the sentencing hearing transcript and determined that the

sentencing court only relied upon the drug quantity range as its point of departure, the outcome

here might be different. Second, and perhaps more telling, Jackson involved a unique procedural

posture: we reviewed the defendant’s sentence on direct appeal, “in the immediate wake of the

[passage of the FSA] after a district judge explicitly delayed sentencing in hopes of the Act’s

imminent passage.” See Riley, 726 F.3d at 761. Accordingly, Jackson was not a § 3582(c)(2)

case and did not address Pembrook or the applicable guideline range as defined in § 1B1.10. See

Scott, 523 F. App’x at 371-72. Because of these distinctions, the precedential authority of

Jackson is limited for this case.

       Johnson also claims that Pembrook is no longer binding, because we implicitly rejected

its holdings in Jackson.     However, our 2013 decision in Joiner considering the applicable

guideline range as the pre-departure range and citing to Pembrook suggests otherwise. Joiner,

727 F.3d at 604-05. Moreover, we do not have the authority to overrule our own precedent and
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Case No. 12-5472, United States v. Johnson


we may modify only if an intervening decision of the United States Supreme Court requires us to

do so. United States v. Young, 580 F.3d 373, 379 (6th Cir. 2009). Therefore, any implicit

rejection of Pembrook present in Jackson is simply ineffectual without an intervening Supreme

Court mandate.     Johnson argues that Freeman v. United States, 131 S. Ct. 2685 (2011),

mandated the rejection of Pembrook when it interpreted the term “based on” to mean any

sentencing guideline range that “was a relevant part of the analytic framework the judge used to

determine the sentence.” Id. at 2693 (Kennedy, J.). Using this definition, Johnson seems to

argue that the district court’s references to the drug quantity range may qualify it as an applicable

guideline range.

       Freeman is a plurality opinion, and the Supreme Court has instructed that “[w]hen a

fragmented Court decides a case and no single rationale explaining the result enjoys the assent of

five Justices, the holding of the Court may be viewed as that position taken by those Members

who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S.

188, 193 (1977) (internal quotation marks and citation omitted). We have determined that

“Justice Sotomayor’s opinion is the narrowest ground for the Court’s decision and thus

represents the Court’s holding in Freeman.” United States v. Smith, 658 F.3d 608, 611 (6th Cir.

2011). Therefore, Justice Kennedy’s definition of “based on” is not binding. See Drewery,

531 F. App’x at 680. Further, Justice Sotomayor’s holding itself is narrow, and pertains to

whether a defendant who enters a Rule 11(c)(1)(C) agreement for a specific sentence can later

file a motion under § 3582(c)(2) for a sentence modification. Thompson, 714 F.3d at 949.

Accordingly, Freeman does not invalidate Pembrook.

       Johnson also argues that USSG § 1B1.10 commentary containing the “applicable

guideline range” definition is not binding on us by virtue of Jackson and Freeman. We held in



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Case No. 12-5472, United States v. Johnson


United States v. Horn, 679 F.3d 397, 402 (6th Cir. 2012), that the Sentencing Commission’s

policy statements on whether other guideline amendments are retroactive are binding. This

conclusion is a logical deduction from the express language of § 3582(c)(2), which requires that

sentence reductions be “consistent with applicable policy statements.” Id.; Hameed, 614 F.3d at

267 (“The Commission’s policy statements are mandatory . . . in the sentence-modification

context, not by dint of the guidelines themselves but based on the plain text of a federal statute,

§ 3582(c)(2).”). Contrary to Johnson’s argument, Horn remains good law. Jackson did not

concern the definition of applicable guideline range in USSG § 1B1.10. Moreover, Freeman

does not require an alternate result. Even the dissent characterizes USSG § 1B1.10(b)(1) as “the

Sentencing Commission’s policy statement governing whether a defendant is eligible for a

reduction under § 3582(c)(2),” and declares that “§ 3582(c)(2) requires a district court ‘to follow

the Commission’s instructions in § 1B1.10 to determine the prisoner’s eligibility for a sentence

modification.’” Freeman, 131 S. Ct. at 2702 (Roberts, J., dissenting) (quoting Dillon v. United

States, 560 U.S. 817, 827 (2010)). That USSG § 1B1.10(b)(1) governs sentence reduction under

§ 3582(c)(2) and requires the district court’s compliance, contentions not contradicted in the

plurality or concurring opinions, support the conclusion that Horn is still good law.

       In sum, Johnson is not entitled to a sentence modification under 18 U.S.C. § 3582(c)(2),

because the career offender range is the applicable guideline range, as USSG § 1B1.10 defines

the term. Jackson and Freeman do not demand a different conclusion. The district court did not

err in denying Johnson the relief he sought. AFFIRMED.




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Case No. 12-5472, United States v. Johnson


       JANE B. STRANCH, concurring in the judgment. I reluctantly concur in the result

reached by the majority opinion. I do so only because I am bound to apply our recent cases

denying sentencing reductions under 18 U.S.C. § 3582(c)(2) to those defendants who initially

qualified as career offenders under USSG § 4B1.1 and who were sentenced before the Fair

Sentencing Act (FSA) became effective on August 3, 2010. I remain unconvinced, however, that

Johnson’s sentence was “based on” the career offender guideline as the majority holds.

Johnson’s sentence was “based on” the same advisory guideline range determined under the drug

guideline, USSG § 2D1.1, that would have applied if Johnson had not qualified as a career

offender.

       At the original sentencing, the district court attributed a drug quantity of 115.7 grams of

crack cocaine to Johnson.      This drug amount was high enough to subject Johnson to a

presumptive statutory minimum term of imprisonment of ten years and a statutory maximum

sentence of life imprisonment under 21 U.S.C. § 841(a) & (b)(1)(A). Under the 2007 version of

USSG § 2D1.1(c)(5) in effect at the time of sentencing, Johnson had a base offense level of 30.

With a three-level reduction for acceptance of responsibility, his total offense level was 27. He

had four criminal history points, which placed him in criminal history category III. Total offense

level 27 combined with criminal history category III produced an advisory guideline range of

87 to 108 months of imprisonment.

       Johnson had at least two prior felony drug convictions, however, qualifying him for

sentencing as a career offender. His offense level jumped to 37 because he faced a statutory

maximum sentence of life imprisonment, and his criminal history category rose to VI. USSG

§ 4B1.1(b)(1). With a three-level reduction for acceptance of responsibility, Johnson faced an

advisory guideline range of 262 to 327 months of imprisonment. The bottom of the career



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Case No. 12-5472, United States v. Johnson


offender range was 154 months higher than the top of the drug guideline range—adding nearly

13 years to the sentence.

       The government did not ask the court to sentence Johnson under the career offender

guideline range of 262 to 372 months or to the statutory minimum sentence of 120 months.

Instead, the government sought to reward Johnson for the substantial assistance he provided in

investigating and prosecuting other defendants. To facilitate that reward, the government filed

motions for downward departure under both 18 U.S.C. § 3553(e) and USSG § 5K1.1, and the

district court granted those motions.

       Section 3553(e) provides that a district 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,” but only “[u]pon motion of the [g]overnment.” Section 5K1.1 similarly

provides that the district court “may depart from the guidelines” based on the defendant’s

substantial assistance, but only “[u]pon motion of the government.” Only the government holds

the power to render a cooperating defendant eligible for a substantial assistance departure from

the statutory minimum sentence or the guideline range. See United States v. Hawkins, 274 F.3d

420, 426 (6th Cir. 2001). Once the government makes a downward departure motion, the district

court has authority to decide whether a departure is appropriate and the extent of any such

departure. United States v. Rosenbaum, 585 F.3d 259, 264 (6th Cir. 2009).

       The government’s conscious choice to make a motion under § 3553(e) and/or § 5K1.1

constitutes a knowing and voluntary waiver of the right to enforce the applicable statutory

minimum sentence or guideline range.           The Sentencing Commission recognized the

government’s ability to waive its rights when it drafted the commentary to § 2D1.1:



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Case No. 12-5472, United States v. Johnson


         Where a mandatory (statutory) minimum sentence applies, this mandatory
         minimum sentence may be “waived” and a lower sentence imposed (including a
         downward departure), as provided in 28 U.S.C. § 994(n), by reason of a
         defendant’s “substantial assistance in the investigation or prosecution of another
         person who has committed an offense.” See § 5K1.1 (Substantial Assistance to
         Authorities).

USSG § 2D1.1, comment. (n.7) (2007). See also USSG § 2D1.1, comment. (n. 23) (2013).

         Note the Sentencing Commission’s language: a statutory minimum sentence may be

waived, and Congress provided by statute that only the government has the power to initiate the

waiver by making a motion under § 3553(e). Similarly, the government waives the right to

request a sentence within the guideline range when it makes a motion to depart downward for

substantial assistance under § 5K1.1. The government’s waiver allows the district court to

impose a sentence lower than the statutory minimum or lower than the bottom of the guideline

range. See United States v. Doe, 731 F.3d 518, 528 (6th Cir. 2013) (Cole, J., concurring in part

and concurring in the judgment) (noting that a substantial assistance motion “effectively

‘waive[s]’ the mandatory minimum” and “[w]ithout a mandatory minimum at work, nothing

prevents Amendment 750 from having ‘the effect of lowering’ the sentence the [defendant] did

receive”). See also United States v. Taylor, 749 F.3d 541, 552 (6th Cir. 2014) (Donald, J.,

dissenting) (observing that the “sole function” of a § 3553(e) motion “is to render the normal

statutory minimum inoperative”).

         “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely

assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’”

United States v. Olano, 507 U.S. 725, 733 (1993). “Waiver, unlike mere forfeiture, extinguishes

[the] ability to raise the claim at all.” United States v. Moore, 93 F. App’x 887, 892 n.6 (6th Cir.

2004).



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Case No. 12-5472, United States v. Johnson


       Where, as here, the government affirmatively chooses to move for a downward departure

for substantial assistance under § 3553(e) or § 5K1.1 or both, the government waives—that is, it

intentionally relinquishes or abandons—its right to enforce the statutory minimum sentence or

the career offender guideline range. The government’s waiver extinguishes its ability to make

two arguments in a future sentencing reduction proceeding under § 3582(c).

       First, the government’s waiver precludes it from asserting that the defendant’s sentence

was actually “based on” the very same statutory minimum sentence or career offender guideline

range that the government knowingly and voluntarily waived at the original sentencing. Second,

the government’s waiver extinguishes its ability to argue that a defendant is not eligible for a

sentencing reduction because “the guideline range applicable to that defendant has [not]

subsequently been lowered as a result of an amendment to the Guidelines Manual.” USSG

§ 1B1.10(a)(1).

       We routinely enforce knowing and voluntary waivers of rights made by criminal

defendants. See e.g., United States v. Hockenberry, 730 F.3d 645, 672 (6th Cir. 2013); United

States v. Wendlandt, 714 F.3d 388, 398 (6th Cir. 2013). We should likewise enforce knowing

and voluntary waivers made by the government.

       At Johnson’s original sentencing, the government waived the statutory minimum

sentence and the application of the career offender guideline. The district court calculated the

applicable guideline range using total offense level 27, and criminal history category III, which

produced an advisory guideline range of 87 to 108 months.          This was the same advisory

guideline range Johnson faced under § 2D1.1 initially before the career offender guideline was

applied. The court imposed a sentence of 87 months of imprisonment.




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Case No. 12-5472, United States v. Johnson


       Johnson’s original sentence was, in fact, “based on” the drug guideline, § 2D1.1, and not

on the career offender guideline.     See Freeman v. United States, 131 S. Ct. 2685, 2695

(Sotomayor, J., concurring in the judgment) (“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.”) Section 2D1.1 served “as the basis or foundation”

for Johnson’s sentence.    Because the sentence was “based on” a drug guideline that was

subsequently lowered by the Sentencing Commission in Amendments 750 and 759, I would hold

that Johnson is eligible for a sentencing reduction under § 3582(c)(2) and USSG § 1B1.10.

       If re-sentenced today under Amendments 750 and 759, Johnson’s base offense level

would be 28 because the drug quantity was 115.7 grams of crack cocaine. USSG § 2D1.1(c)(6).

With a three-level reduction for acceptance of responsibility, the total offense level would be

25 and combined with criminal history category III, the advisory guideline range would be 70 to

87 months of imprisonment. The district court could impose a reduced sentence if it chose to do

so.

       Accordingly, if I were writing on a clean slate, I would find Johnson eligible for a

sentencing reduction and remand the case to the district court for resentencing. Where the

government expressly waives application of a statutory minimum and/or a particular guideline

range, we should enforce that waiver in a subsequent sentencing reduction proceeding under

§ 3582(c)(2). We should not allow the government to resurrect a position that it knowingly and

voluntarily disclaimed at the original sentencing. Further, our case law should not perpetuate the

myth that a defendant’s sentence was “based on” the career offender guideline when it certainly

was not. The majority opinion and cases cited within it unfairly absolve the government of its




                                              - 16 -
Case No. 12-5472, United States v. Johnson


express waiver and wrongly penalize the defendant by denying eligibility for a sentencing

reduction that unquestionably exists.

       I may be bound by our case precedent, but I am not required to agree with it. I concur

only in the judgment.




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