                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 13a0242p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 12-3811
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 LEVAR JOHNSON,
                                                N
                  Appeal from the United States District Court
                for the Northern District of Ohio at Youngstown.
          No. 4:04-cr-00537-1—Christopher A. Boyko, District Judge.
                        Decided and Filed: August 20, 2013
               Before: KEITH, COLE, and ROGERS, Circuit Judges.

                                _________________

                                     COUNSEL
ON BRIEF: Melissa M. Salinas, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant. Linda H. Barr, UNITED STATES ATTORNEY’S
OFFICE, Akron, Ohio, for Appellee.
        KEITH, J., delivered the opinion of the court, in which, COLE, J., concurred in
part and in the judgment. COLE, J. (pp. 15–16), delivered a separate opinion concurring
in part and in the judgment. ROGERS, J. (pp. 17–19), delivered a separate dissenting
opinion.
                                _________________

                                     OPINION
                                _________________

       DAMON J. KEITH, Circuit Judge. In 2010, the Fair Sentencing Act (“FSA”)
was passed “to restore fairness to Federal cocaine sentencing.” Pub. L. 111-220, 124
Stat. 2372 (2010) (to be codified as amended in scattered sections of Title 21). The
passage of the FSA was a monumental and commendable first step toward eliminating
racial disparities in cocaine sentencing. Nevertheless, much work remains before


                                          1
No. 12-3811         United States v. Johnson                                         Page 2


fairness and integrity are fully restored to Federal cocaine sentencing, as evidenced in
this case before us.

        Defendant Levar Johnson is currently incarcerated pursuant to a penalty that has
been discredited not only by public opinion, but by Congress, the Supreme Court, and
the United States Sentencing Commission. Johnson seeks reduction of a sentence
imposed on him for a violation involving cocaine base. Despite the passage of the FSA,
the district court found that Johnson and other similarly situated defendants are ineligible
to have their unfair sentences reconsidered. This case requires us to interpret the U.S.
Sentencing Guidelines Manual (hereinafter “Guidelines” or “U.S.S.G.”) and cocaine
sentencing statutes, which overlap at several relevant points. Because we must give
effect to Congress’s unambiguously expressed intent that the amended Guidelines
achieve consistency, we vacate the district court’s order and remand for further
proceedings consistent with this opinion.

                                    BACKGROUND

        Powder cocaine and cocaine base are two different forms of the same drug, but
have been subject to different penalties for the same drug quantities. The FSA reduced
from 100:1 to 18:1 the ratio between the quantities of powder cocaine versus cocaine
base that trigger the same statutory minimum sentences (“cocaine ratios”). Dorsey v.
United States, 132 S. Ct. 2321, 2329 (2012). “[T]he severity of the old guidelines has
been criticized by nearly every stakeholder in the criminal justice system,” including
Congress. United States v. Jackson, 678 F.3d 442, 444 (6th Cir. 2012). Even before the
FSA was enacted, the United States Supreme Court noted that the old 100:1 cocaine
ratios “‘foster[ed] disrespect for and lack of confidence in the criminal justice system’
because of a ‘widely-held perception’ that it ‘promotes unwarranted disparity based on
race.’” Kimbrough v. United States, 552 U.S. 85, 98 (2007) (quoting United States
Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy
103 (May 2002)). Approximately eighty-five percent of defendants convicted of cocaine
base offenses in federal court are African-American. Id. Defendant Johnson was
sentenced pursuant to the old ratios.
No. 12-3811        United States v. Johnson                                         Page 3


       Defendant’s Sentencing

       The facts of this case are undisputed. In 2006, Defendant pleaded guilty to two
counts of distribution of over fifty grams of cocaine base in violation of 21 U.S.C.
§ 841(a)(1)—the controlled substance criminal statute. Defendant’s plea agreement
specified that his offense involved 109 grams of cocaine base. The plea agreement
stated, “The parties agree to recommend that the Court impose a sentence within the
range determined pursuant to the advisory Sentencing Guidelines in accordance with the
computations and stipulations set forth in this agreement.” The district court accepted
the parties’ plea agreement. At Defendant’s original sentencing, the district court was
bound by the pre-FSA statutory minimums. In 2006, pursuant to the sentencing
provisions in 21 U.S.C. § 841(b)(1)(A)(iii) and 21 U.S.C. § 851, Defendant was subject
to a statutory minimum sentence of 240 months of imprisonment.1                 However,
240 months was only a presumptive statutory minimum because the Government moved
for a downward departure in return for Defendant’s substantial assistance to its
investigation, and the district court granted further reductions for Defendant’s
acceptance of responsibility and timely indication of his intent to plead guilty. After the
downward departure and reductions, the Guidelines yielded an advisory range of 130 to
162 months of imprisonment. Ultimately, the district court sentenced Defendant to 130
months of imprisonment, the low end of the advisory range.

       The Fair Sentencing Act

       Four years later, in 2010, the FSA was enacted. The FSA amended the cocaine
base sentencing statute—21 U.S.C. § 841(b)(1). Before the FSA, the cocaine base
sentencing statute prescribed a ten-year statutory minimum sentence for offenses
involving fifty or more grams of cocaine base. 21 U.S.C. § 841(b)(1)(A)(iii) (2006).
Since the FSA was enacted, the cocaine base sentencing statute requires an offense to
involve at least 280 grams of cocaine base in order to trigger a ten-year statutory
minimum sentence. 21 U.S.C. § 841(b)(1)(A)(iii) (2012). Therefore, under the new


       1
          Title 21 U.S.C. § 851 enhanced the 120-month statutory minimum in 21 U.S.C.
§ 841(b)(1)(A)(iii) to a 240-month minimum due to Defendant’s prior convictions.
No. 12-3811        United States v. Johnson                                         Page 4


minimums promulgated by the FSA, an offense involving 109 grams of cocaine base
only triggers a five-year presumptive statutory minimum. 21 U.S.C. § 841(b)(1)(B)(iii)
(2012). The statutory minimum in 21 U.S.C. § 841(b)(1) is only a presumptive starting
point and it is still subject to various adjustments in a district court’s calculation of a
defendant’s final sentence.

       Amendment 750

       The Guidelines’s penalties for cocaine base offenses were also amended as a
result of the FSA. In the FSA, Congress gave the United States Sentencing Commission
emergency authority to amend the Guidelines. § 8, 124 Stat. at 2374. Congress
instructed the Commission that it “shall . . . make such conforming amendments to the
Federal sentencing guidelines as the Commission determines necessary to achieve
consistency with other guideline provisions and applicable law.” Id.

       As a result of Congress’s directive, the Sentencing Commission promulgated
Amendment 750 to the Guidelines. Amendment 750 revised the drug quantity table in
§ 2D1.1(c) of the Guidelines. Similar to the changes in the cocaine base sentencing
statute, Amendment 750 increased the cocaine base quantities required to trigger higher
base offense levels. U.S.S.G. app. C, amend. 750 (2011). Before Amendment
750 revised the § 2D1.1(c) drug quantity table, an offense involving 109 grams of
cocaine base corresponded to a base offense level of 32. After Amendment 750, an
offense involving 109 grams of cocaine base corresponds to a base offense level of 26.

       The sentencing table in chapter 5, part A of the Guidelines determines a
defendant’s advisory range based on criminal history category and Total Offense Level.
The § 2D1.1(c) drug quantity table determines a defendant’s base offense level
depending on the amount of drugs involved in the offense. Like a presumptive statutory
minimum, a base offense level is similarly subject to various adjustments in a district
court’s calculation of a defendant’s Total Offense Level.
No. 12-3811         United States v. Johnson                                       Page 5


        Defendant’s Procedural History

        The FSA substantially reduced both the statutory minimum sentence and
advisory range applicable to offenses involving 109 grams of cocaine base. Following
the district court’s original sentencing formula, but using the new statutory minimums
and amended Guidelines, Defendant would be subject to a sentence of seventy months
of imprisonment instead of 130 months.

        Consequently, in 2012, Defendant moved for a sentence reduction pursuant to
18 U.S.C. § 3582(c)(2). Section 3582(c)(2) allows a district court to reduce a term of
imprisonment that has already been imposed under certain conditions, which are
elaborated below. The district court denied Defendant’s motion. The district court
reasoned that he was still subject to the pre-FSA statutory minimums and therefore
Amendment 750 had not lowered his applicable guideline range. The district court
found that Defendant was ineligible for sentence reduction and denied his motion for
lack of jurisdiction.

        On appeal, Defendant argues that the statutory minimums as promulgated by the
FSA apply as the operative minimums in his sentence reduction calculation under
§ 1B1.10(b)(1), so that he is eligible for sentence reduction under 18 U.S.C.
§ 3582(c)(2). The Government argues that the statutory minimums that were in force
in 2006 are the operative minimums in Defendant’s § 1B1.10(b)(1) sentence reduction
calculation, so that he is ineligible for sentence reduction under 18 U.S.C. § 3582(c)(2).

                                      ANALYSIS

        We review a district court’s denial of a motion to modify a sentence under
18 U.S.C. § 3582(c)(2) for an abuse of discretion. United States v. Carter, 500 F.3d 486,
490 (6th Cir. 2007). When a district court finds that a defendant is ineligible for
sentence reduction under 18 U.S.C. § 3582(c)(2), however, we review that decision de
novo. United States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010).

        Generally, a district court may not reduce a defendant’s sentence after imposing
it. 18 U.S.C. § 3582(c). There is an exception, however, whereby a district court has
No. 12-3811        United States v. Johnson                                        Page 6


jurisdiction to reduce a defendant’s sentence if: (1) the original sentence was “based on”
an advisory range; (2) the Sentencing Commission subsequently lowered the advisory
range upon which the defendant’s original sentence was based; and (3) the sentence
reduction is consistent with the Sentencing Commission’s policy statement in § 1B1.10.
18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B); United States v. Hameed, 614 F.3d
259, 262 (6th Cir. 2010). We must determine whether Defendant satisfies all three of
the sentence reduction eligibility requirements.

       Defendant satisfies the first sentence reduction eligibility requirement because
his sentence was based on the Guidelines. Section 1B1.10(b)(1) of the Guidelines
provides the methodology for calculating sentence reductions for purposes of a motion
under 18 U.S.C. § 3582(c)(2). Whether Defendant satisfies the second and third
sentence reduction eligibility requirements depends upon which statutory minimums are
operative in his § 1B1.10(b)(1) sentence reduction calculation. The methodology
outlined in § 1B1.10(b)(1) incorporates statutory minimums by reference where, as here,
a defendant’s original advisory range was reset by a presumptive statutory minimum
prior to the consideration of substantial assistance. However, the Guidelines are silent
about whether to apply the statutory minimums that were in effect at the time of the
original sentencing or the minimums in effect at the time the district court rules on the
§ 3582(c)(2) motion. For this reason, we look to Congress’s intent to determine which
minimums figure into Defendant’s § 1B1.10(b)(1) calculation.

       “Based On” an Advisory Range

       Defendant satisfies the first sentence reduction eligibility requirement because
his original sentence was based on an advisory range. 18 U.S.C. § 3582(c)(2). To
determine whether a sentence was based on an advisory range, we look to “what the
district court actually said and did at the original sentencing.” Hameed, 614 F.3d at 264
(internal quotation marks and citation omitted).       Defendants who are sentenced
according to plea agreements that calculated an advisory range based on the Guidelines
are sentenced based on an advisory range for purposes of § 3582(c)(2) motions.
Freeman v. United States, 131 S.Ct. 2685, 2693 (2011) (plurality opinion).
No. 12-3811        United States v. Johnson                                         Page 7


       Defendant’s plea agreement states, “The parties agree to recommend that the
Court impose a sentence within the range determined pursuant to the advisory
Sentencing Guidelines in accordance with the computations and stipulations set forth in
this agreement.” During Defendant’s sentencing hearing, the district court stated, “The
parties agree to recommend that the Court impose a sentence within the range
determined pursuant to the advisory sentencing guidelines” and that “the appropriate
sentencing range under the guidelines according to the sentencing table is 130 to 162
months.” The district court clearly started with the drug quantity table in § 2D1.1 as the
dissent concedes. The district court then relied on §§ 3E1.1(a), 3E1.1(b), and 5K1.1 of
the Guidelines, which were cited in the plea agreement, to calculate Defendant’s
advisory range as 130 to 162 months. The district court proceeded to sentence
Defendant to 130 months. The district court’s imposition of Defendant’s sentence
pursuant to the plea agreement that derived an advisory range from the Guidelines was,
therefore, based on an advisory range. See Freeman, 131 S.Ct. at 2691 (holding that a
defendant’s sentence was based on an advisory range where the plea agreement stated
that the defendant “agree[d] to have his sentence determined pursuant to the Sentencing
Guidelines” and the district court adopted the plea agreement).

       Lowered Advisory Range

       The second sentence reduction eligibility requirement is that the Sentencing
Commission must have lowered the advisory range upon which Defendant’s original
sentence was based. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1); Hameed,
614 F.3d at 262. To determine whether the Guidelines have lowered a defendant’s
sentence, the district court is supposed to start with its own original sentencing formula,
then swap in the amended Guidelines into that calculation without making any other
change. U.S.S.G. § 1B1.10(b)(1).

       As the dissent seems to recognize, the district court’s first step in Defendant’s
original sentencing formula was to consult the drug quantity table in § 2D1.1(c) of the
Guidelines to find the base offense level associated with a crime involving 109 grams
of cocaine base. Therefore, at sentence reduction proceedings, the district court would
No. 12-3811          United States v. Johnson                                        Page 8


take the same first step. Since Amendment 750 revised the § 2D1.1(c) drug quantity
table, an offense involving 109 grams of cocaine base now corresponds to a base offense
level of 26. At the district court’s second step in Defendant’s original sentencing
formula, § 5G1.1 of the Guidelines directed the district court to refer to the statutory
minimum sentence required by the cocaine base sentencing statutes—21 U.S.C.
§ 841(b)(1) and 21 U.S.C. § 851—to see how they adjusted Defendant’s offense level.
Therefore, at sentence reduction proceedings, the district court would take the same
second step. The parties agree on the sentence reduction calculation steps up until this
point.

          However, the parties dispute whether the district court should apply the statutory
minimums in 21 U.S.C. § 841(b)(1) and 21 U.S.C § 851 that were in effect at the time
of Defendant’s original sentencing or the minimums that are in effect at the time the
district court rules on the § 3582(c)(2) motion. Section 5G1.1 is the portion of the
Guidelines that builds statutory minimums into applicable guideline ranges. Section
5G1.1 is silent about which statutory minimums to apply. In pertinent part, § 5G1.1
states:

          (b) Where a statutorily required minimum sentence is greater than the
          maximum of the applicable guideline range, the statutorily required
          minimum sentence shall be the guideline sentence.
                 (c) In any other case, the sentence may be imposed at any
                 point within the applicable guideline range, provided that
                 the sentence–
                 (1) is not greater than the statutorily authorized maximum
                 sentence, and
                 (2) is not less than any statutorily required minimum
                 sentence.

The Government argues that the old minimums are operative in Defendant’s
§ 1B1.10(b)(1) sentence reduction calculation and therefore § 5G1.1(b)
applies—precluding Defendant from eligibility for a sentence reduction. Defendant
argues, on the other hand, that the new minimums are operative and § 5G1.1(c)(2)
applies—allowing a sentence reduction.
No. 12-3811        United States v. Johnson                                         Page 9


       The Supreme Court has not addressed this issue. United States v. Liberse,
688 F.3d 1198, 1202 (11th Cir. 2012) (“The [Supreme] Court did not decide [in Dorsey,
132 S. Ct. 2321] whether the Fair Sentencing Act applies to a defendant, like Liberse,
who was sentenced before the Act went into effect and who files a § 3582(c)(2) motion
to reduce his sentence after the Act’s effective date.” (emphasis in original)). Thus, we
look to the words of the statute. “Where Congress had made its intent clear, we must
give effect to that intent.” Miller v. French, 530 U.S. 327, 336 (2000) (internal quotation
marks and citation omitted). We agree with Defendant that the new minimums operate
in his § 1B1.10(b)(1) calculation because that method gives effect to Congress’s intent
as unambiguously expressed in the FSA. There, Congress stated that the amended
Guidelines ought to “achieve consistency with other guideline provisions and applicable
law.” § 8, 124 Stat. at 2374.

       We begin by highlighting a major flaw in the Government’s position. If we
accept the Government’s interpretation that Defendant is still subject to the old
minimums in his § 1B1.10(b)(1) calculation, the amended Guidelines would yield results
inconsistent with Congress’s intent. Under the Government’s interpretation, cocaine-
base defendants whose original advisory ranges were slightly above the old statutory
floor, but who did not receive substantial assistance downward departures, would be
eligible for sentence reductions under § 3582(c)(2). See United States v. Wren, 706 F.3d
861, 864 (7th Cir. 2013). However, defendants like Johnson whose original ranges were
at the statutory floor and rendered substantial assistance would not be eligible. This is
so because the Government would have us reset their ranges at the presumptive statutory
minimums, which the Government further argues are the old ones. Such perverse results
are clearly inconsistent with other Guidelines provisions.

       Section 1B1.10(b)(1) instructs a district court to plug in the amended Guidelines
to its original Guidelines formula and “leave all other guideline application decisions
unaffected.” Id. at 863 (quoting U.S.S.G. § 1B1.10(b)(1)). Section 5G1.1 is not utilized
in the original sentencing formulas of defendants whose original advisory ranges were
slightly above the statutory floor. Therefore, one of the “unaffected” decisions in these
No. 12-3811        United States v. Johnson                                       Page 10


defendants’ § 1B1.10(b)(1) sentence reduction calculations would be not using
§ 5G1.1—effectively bypassing otherwise applicable statutory floors. See id. at 863–64.
In this way, these uncooperative defendants are eligible for sentence reductions even
when the old minimums are used.

       Yet, the Government’s interpretation of the Guidelines would exclude
Johnson—a cooperating defendant—from the benefits of sentence reduction simply
because his original range prior to departure happened to be the presumptive statutory
minimum. Id. at 864. Cooperating with authorities is one of the limited ways a
defendant can pierce a presumptive statutory minimum. Sentencing statutes and the
Guidelines indicate that both Congress and the Sentencing Commission intend to
incentivize cooperation with the authorities. See 18 U.S.C. § 3553(e); U.S.S.G.
§§ 5K1.1, 3E1.1(b) (authorizing sentence reductions for cooperative defendants). The
Government’s position would exclude Johnson—a cooperative defendant—from the
benefits of lower cocaine penalties, while including uncooperative defendants who
committed similar crimes and received greater sentences. There is no indication that the
Sentencing Commission or Congress intended to exclude cooperative defendants from
the benefits of sentence reductions. Other circuits have recognized this Guidelines issue:

       It is difficult to see why prisoners [whose original sentencing range was
       at a presumptive statutory minimum] who received a substantial-
       assistance or safety-valve sentence should be excluded from a retroactive
       Guideline reduction, while prisoners whose original ranges were just
       slightly above the statutory floor are eligible for the benefit of the
       retroactive change.

Wren, 706 F.3d at 864. The Government’s interpretation of the amended Guidelines
would be inconsistent “with other guideline provisions and applicable law,” contrary to
Congress’s unambiguously expressed intent. § 8, 124 Stat. at 2374. Therefore, the
Government’s position is unavailing.

       This brings us back to the old-or-new-minimums question. The Seventh Circuit
in Wren did not have to answer the question whether the FSA applies in a § 3582(c)(2)
proceeding because the defendants in that case had advisory ranges that were above the
No. 12-3811        United States v. Johnson                                      Page 11


statutory floor. Here, on the other hand, Defendant’s advisory range was reset by a
presumptive statutory minimum in his original sentencing formula prior to departure.
Therefore, in this case we must decide which statutory minimums are operative in a
§ 1B1.10(b)(1) calculation in order to know whether Defendant’s advisory range has
been lowered by Amendment 750. If the FSA applies in a § 3582(c)(2) proceeding,
Defendant would be subject to a ten-year presumptive minimum instead of a twenty-year
presumptive minimum in his advisory Guidelines calculation.             See 21 U.S.C.
§ 841(b)(1)(B)(iii) (requiring a five-year presumptive minimum for offenses involving
more than 28 grams, but less than 280 grams of cocaine base); 21 U.S.C. § 851
(operating to enhance the 60-month statutory minimum in 21 U.S.C. § 841(b)(1)(A)(iii)
to a 120-month minimum due to Defendant’s prior conviction). Plugging the new
statutory minimums and amended Guidelines into Defendant’s original sentencing
formula would yield a sentence of seventy months of imprisonment instead of
130 months.

       For the reasons stated above, we hold that applying the new minimums in
Defendant’s § 1B1.10(b)(1) calculation is the only way to give effect to Congress’s
intent to achieve consistency with other Guidelines provisions, especially with regard
to which kinds of defendants—cooperative and uncooperative—are eligible for sentence
reductions.

       The Government attempts to rely on United States v. Carradine, 621 F.3d 575
(6th Cir. 2010), and Dorsey, 132 S. Ct. 2321, to argue that Defendant is not eligible for
a sentence reduction because he was sentenced before the FSA’s effective date, which
was August 3, 2010. The Government’s reliance on Carradine and Dorsey is misplaced
here. Carradine and Dorsey stand for the proposition that defendants who were
sentenced after August 3, 2010, were entitled to be sentenced under the new FSA
minimums at their original sentencing hearings. Dorsey, 132 S. Ct. at 2336; Carradine,
621 F.3d at 580. Original sentencing hearings are plenary sentencing proceedings under
18 U.S.C. § 3553 and § 1B1.1. A sentence reduction under 18 U.S.C. § 3582(c)(2) and
§ 1B1.10 is not a plenary resentencing—it is an exception to the rule that plenary
No. 12-3811           United States v. Johnson                                                Page 12


sentences under § 3553 are final. § 1B1.10(a)(3); Dillon v. United States, 130 S. Ct.
2683, 2690 (2010). Carradine and Dorsey dealt with how statutory minimums apply
retroactively to § 3553 plenary sentencing proceedings. Carradine and Dorsey did not
address how statutory minimums operate in § 3582(c)(2) sentence reduction calculations.
See Liberse, 688 F.3d at 1202 (explaining that the Supreme Court did not decide in
Dorsey whether the FSA applies to defendants who were sentenced before August 3,
2010, and subsequently file § 3582(c)(2) motions for sentence reduction).2 In other
words, Dorsey and Carradine dealt with how the FSA applies in an original sentencing
calculation under § 1B1.1. Here, we are addressing how the FSA interacts with a
§ 3582(c)(2) sentence modification calculation under § 1B1.10(b)(1).

         Guidelines Policy Statement

         Defendant satisfies the third and final sentence reduction eligibility requirement
because his sentence reduction is consistent with the Sentencing Commission’s policy
statement in § 1B1.10(a)(2)(B). Amendment 750 revised the § 2D1.1(c) drug quantity
table. Defendant’s sentence reduction is consistent with the Sentencing Commission’s
policy statement if Amendment 750 has “the effect of lowering the defendant’s
applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The Guidelines define
“applicable guideline range” as “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.” U.S.S.G. § 1B1.10 cmt. n.1(a)(A). Defendant’s applicable guideline range
automatically incorporates the statutory minimums in the cocaine base sentencing
statutes—21 U.S.C § 841(b)(1) and 21 U.S.C. § 851—via § 1B1.1(a)(8), which
interlocks with § 5G1.1—the section of the Guidelines that incorporates the statutory
minimums. Because we decided above that the new minimums are the operative
statutory minimums in Defendant’s § 1B1.10(b)(1) calculation, Amendment 750 has the
         2
           We have misapplied the precedent of Dorsey in previous cases. See, e.g., United States v.
Hammond, 712 F.3d 333 (6th Cir. 2013) (relying on Dorsey to summarily conclude that the FSA is not
“retroactive” to defendants who were sentenced before August 3, 2010). Instead, here we clarify that
Dorsey only discussed retroactivity of the FSA to § 3553 plenary sentencing hearings, whereas here we
are discussing the prospective application of the FSA to § 3582(c)(2) sentence modification proceedings.
Dorsey does not pronounce on the issue presented in this case and the dissent mischaracterizes the
precedent here as another type of retroactive application of the FSA.
No. 12-3811          United States v. Johnson                                    Page 13


effect of lowering his applicable guideline range. Therefore, Defendant’s sentence
reduction is consistent with the Sentencing Commission’s policy statement in
§ 1B1.10(a)(2)(B).

       The Government relies on the policy statement in Application note 1(a)(A) to
§ 1B1.10 of the Guidelines to argue that Defendant remains subject to the minimums that
were effective at the time of his original sentencing and therefore is ineligible for
sentence reduction under 18 U.S.C. § 3582(c)(2). Application note 1(a)(A) to § 1B1.10
states that a defendant is ineligible for sentence reduction under 18 U.S.C. § 3582(c)(2)
where “[Amendment 750] 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).” Just as in § 5G1.1 of the Guidelines analyzed above,
Application note 1(a)(A) to § 1B1.10 of the Guidelines is silent about which statutory
minimum is operative in a § 1B1.10(b)(1) calculation. For the reasons elaborated above,
the new statutory minimums apply in Defendant’s § 1B1.10(b)(1) calculation.
Consequently, Amendment 750 does have the effect of lowering Defendant’s applicable
guideline range. Therefore, the policy statement in § 1B1.10 n.1(a)(A) does not preclude
Defendant from eligibility for sentence reduction under 18 U.S.C. § 3582(c)(2).

       Other FSA Jurisprudence

       Our decision today is in line with the momentum of Supreme Court jurisprudence
on the FSA. Each time the Supreme Court has heard cases involving the FSA, it has
expanded the class of defendants who are entitled to or eligible for the benefits of
lowered penalties under the FSA. See Dorsey, 132 S. Ct. at 2336 (holding that “straddle
defendants”—who committed crimes before the FSA was enacted but were sentenced
after—were entitled to the new minimums at their original sentencing); Freeman,
131 S.Ct. at 2693 (holding that a plea agreement did not render a cocaine-base defendant
ineligible for sentence reduction under § 3582(c)(2)).
No. 12-3811         United States v. Johnson                                       Page 14


                                    CONCLUSION

        Our decision does not minimize the enormous difficulty that the Sentencing
Commission faces when crafting the U.S. Sentencing Guidelines Manual. Nor do we
imply that Congress knowingly designed the old cocaine ratios to have a racially
disparate impact. Instead—just as Congress did when it enacted the FSA—today we
acknowledge past mistakes in the criminal justice system and endeavor to prevent further
injustice.

        Defendant is eligible for sentence reduction and the district court has jurisdiction
to reduce his sentence according to the instructions in § 1B1.10(b)(1) and using the
currently effective statutory minimums in 21 U.S.C. § 841(b)(1). For the foregoing
reasons, we VACATE and REMAND for further proceedings consistent with this
opinion.
No. 12-3811        United States v. Johnson                                     Page 15


              _________________________________________________

              CONCURRENCE IN PART AND IN THE JUDGMENT
              _________________________________________________

COLE, Circuit Judge, concurring in part and concurring in the judgment. I concur in the
result, but write separately because I would resolve this case on narrower grounds.

       Let me begin by noting that I agree with the lead opinion on a major premise:
Johnson’s sentence was “based on” a subsequently lowered guidelines range rather than
a statutory mandatory minimum. The record reveals that the crack-cocaine guidelines
were “a relevant part of the analytic framework the [district court] used to determine”
the extent of the substantial-assistance departure. See Freeman v. United States, 131 S.
Ct. 2685, 2692-93 (2011) (plurality opinion). Indeed, it is possible to draw a line from
Johnson’s final sentence back to those guidelines in light of the pierced mandatory
minimum. I diverge with the lead opinion, however, on how far we go from there.

       I would look no further than Johnson’s substantial assistance. In my view, this
additional variable makes all the difference—and it sets our case apart from United
States v. Hammond, 712 F.3d 333 (6th Cir. 2013). Under Hammond, a defendant facing
a mandatory minimum term is ineligible for a sentence reduction because the mandatory
minimum trumps the original guidelines range, which prevents Amendment 750 from
having “the effect of lowering” the defendant’s sentence. Id. at 335-36; see U.S.S.G.
§§ 1B1.10(a)(2)(B), 1B1.10 cmt. 1(A). But Johnson is not facing a mandatory minimum
term. Though presumptively subject to one, he received a lower sentence pursuant to
the government’s substantial-assistance motion. See 18 U.S.C. § 3553(e); U.S.S.G.
§ 5K1.1. This motion effectively “waived” the mandatory minimum and permitted the
district court to impose a sentence based on his otherwise-applicable guidelines range.
See U.S.S.G. § 2D1.1 cmt. 23. Without a mandatory minimum at work, nothing prevents
Amendment 750 from having “the effect of lowering” the sentence Johnson did receive.
Thus, I would hold only that a crack offender like Johnson who is otherwise subject to
a mandatory minimum but receives a lower sentence because he rendered substantial
assistance to the government remains eligible for a sentence reduction under
No. 12-3811         United States v. Johnson                                      Page 16


§ 3582(c)(2). I follow at least two of our sister circuits in adopting this view. See In re
Sealed Case, — F.3d —, 2013 WL 3305706 (D.C. Cir. July 2, 2013); United States v.
Savani, — F.3d —, 2013 WL 2462941 (3d Cir. Jun. 10, 2013).

        Resolving our case on the foregoing grounds obviates the need to delve any
further into the controversy surrounding the retroactive application of the Fair
Sentencing Act. Had Johnson not received a downward departure for substantial
assistance, his sentence clearly would have been “based on” the mandatory minimum
rather than the crack-cocaine guidelines, and the old-or-new minimums question would
have become unavoidable. This, of course, is a profoundly difficult and divisive
question. It is also one we are set to answer soon enough sitting as an en banc court. I
believe it is best to wait until then.
No. 12-3811         United States v. Johnson                                       Page 17


                                    ______________

                                       DISSENT
                                    ______________

        ROGERS, J., Circuit Judge, dissenting. Though it is with some regret, I am
compelled to dissent.

        The lead opinion’s analysis has the same effect as our recently-vacated opinion
in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013), although for quite different
reasons. Under both analyses, any sentence governed by a statutory minimum changed
by the Fair Sentencing Act (FSA), no matter how far back, could be the subject of a
§ 3582 motion. Indeed, our upcoming en banc consideration of Blewett could be
resolved in the alternative on the basis of the lead opinion’s reasoning, if accepted by the
en banc court.

        In the meantime, however, we are bound by this court’s published panel
precedent in United States v. Hammond, 712 F.3d 333 (6th Cir. 2013). In Hammond,
this court in a § 3582 reduction case flatly held that “the FSA is not retroactive to
defendants like Hammond . . . who were originally sentenced before its effective date.”
Id. at 336. The lead opinion’s analysis in the instant case is unfortunately squarely
foreclosed by the holding in Hammond, which is a binding precedent. No reason is
given for why our panel can overrule Hammond.

        It cannot be argued that Hammond is distinguishable because Johnson received
a substantial-assistance departure while Hammond did not. This is because Johnson’s
substantial-assistance departure was in no respect affected by anything changed by the
FSA. The only way in which the FSA arguably affects Johnson’s sentence is in the
calculation of the sentence prior to the application of the departure, on the theory that
the FSA would no longer apply the statutory minimum that drove the pre-departure
guideline range.

        Johnson pled guilty to possessing 109 grams of cocaine base, which under the
crack-cocaine guidelines at § 2D1.1 of the 2006 Guidelines produced an offense level
No. 12-3811        United States v. Johnson                                      Page 18


of 32. This offense level was reduced by 3 to account for Johnson’s acceptance of
responsibility to produce a revised offense level of 29. This revised offense level
combined with his criminal history category of V to produce a guideline range of 140
to 175 months of imprisonment. Under pre-FSA 21 U.S.C. § 841, Johnson was subject
to a statutory minimum of 240 months’ imprisonment.             The court granted the
Government’s motion for a substantial-assistance reduction. It appears from the
Presentence Investigation Report and the sentencing transcript that the court quantified
the value of Johnson’s assistance by granting a 2-level departure from offense level 33,
the first offense level that intersects with Johnson’s statutory minimum and criminal
history category. The court then granted a further 3-level reduction to account for
Johnson’s acceptance of responsibility, producing a final offense level of 28 (33 -2 -3).
This produced a guidelines range of 130 to 162 months, and the district court sentenced
Johnson to the bottom of this range: 130 months. Once the district court increased
Johnson’s offense level to account for the statutory minimum, the district court never
looked back at the offense level of 29 and range of 140 to 175 months that resulted from
the crack-cocaine guidelines. Accordingly, the drug tables had no apparent impact on
Johnson’s sentence, and he was not sentenced “based on” an amended guidelines range,
apart from the original determination of the pre-departure range based on the pre-FSA
statutory minimum—the issue that Hammond resolves against him.

       The analysis of the concurrence is also unfortunately foreclosed by binding
precedent. After the departure, the district court in no way referred to or relied on
portions of the Guidelines affected by the FSA. Therefore, under Justice Sotomayor’s
controlling approach from Freeman, the “based on” requirement was not satisfied. See
Freeman v. United States, 131 S. Ct. 2685, 2695 (2011) (Sotomayor, J., concurring); see
also United States v. Thompson, 714 F.3d 946, 949 (6th Cir. 2013) (“Justice
Sotomayor’s concurrence constitutes the applicable holding . . . .”). As we said in
Thompson, “[c]ertainly, the district court based Thompson’s sentence on some part of
the guidelines; the issue . . . is whether such sentence was based on the crack cocaine
guidelines and whether Amendment 750 would have the effect of lowering his
applicable guideline range.” 714 F.3d at 949. The concurrence suggests that after the
No. 12-3811        United States v. Johnson                                     Page 19


departure in Johnson’s case, the district court “impose[d] a sentence based on his
otherwise-applicable guidelines range.” Supra, at 15. But, as described above, his
otherwise-applicable guidelines range was 140 to 175 months, and the district court used
a range of 130 to 162 months to determine Johnson’s sentence. The range that the
district court used was disconnected from the crack-cocaine guidelines, so Johnson’s
sentence was not “based on” a guidelines range that has been amended.
