RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0218p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

TALIF HAMEED,

 Defendant-Appellant.

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No. 09-3259

Appeal from the United States District Court

for the Northern District of Ohio at Youngstown.

No. 04-00555-003—Peter C. Economus, District Judge.

Decided and Filed: July 26, 2010 

Before: BATCHELDER, Chief Judge; MOORE and COLE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Donna M. Grill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Toledo,

Ohio, for Appellant. Bernard A. Smith, ASSISTANT UNITED STATES ATTORNEY,

Akron, Ohio, for Appellee. 

MOORE, J., delivered the opinion of the court, in which COLE, J., joined.

BATCHELDER, C.J. (pp. 15-19), delivered a separate opinion concurring in part and

dissenting in part.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Talif Hameed pleaded guilty to one

count of conspiracy to possess with intent to distribute crack cocaine and one count of being

a felon in possession of a firearm. Under § 2D1.1 of the U.S. Sentencing Guidelines

(“U.S.S.G.”), which lists the base offense levels corresponding to the quantity of drugs

attributable to a defendant, Hameed’s sentencing range would have been 78 to 97 months

of imprisonment. Hameed also faced a statutory mandatory minimum of ten years, but the

1
No. 09-3259 United States v. Hameed Page 2

government filed substantial-assistance motions under 18 U.S.C. § 3553(e) and U.S.S.G.

§ 5K1.1, allowing the district court to impose a sentence below the mandatory minimum.

After granting these motions, the district court resorted to the guideline range applicable

under § 2D1.1, granted a one-level departure therefrom, and sentenced Hameed to 70 months

of imprisonment. Following two guidelines amendments that reduced advisory sentences

for most crack offenses, Hameed moved for a reduction of his sentence under 18 U.S.C.

§ 3582(c)(2). The district court concluded that Hameed was ineligible for relief and denied

the motion.

As explained below, we agree. 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,” U.S.S.G § 1B1.10(a)(2)(B). See United States v. Pembrook, — F.3d —,

2010 WL 2499656, at *2 (6th Cir. June 11, 2010) (setting forth these two requirements).

Although we believe that Hameed’s sentence ultimately was “based on” a drug-quantity

guideline range that has since been lowered, we conclude that that guideline range was not

“applicable” because it was not a proper basis for the substantial-assistance departure he

received. Accordingly, we AFFIRM.

I. BACKGROUND

Hameed and four other men sold crack out of two residences in Warren, Ohio from

December 2003 through June 2004. A grand jury indicted Hameed on one count of

conspiracy to possess with intent to distribute and to distribute crack cocaine, three counts

of crack distribution based on separate $20 sales, two counts of possession with intent to

distribute crack, and one count of being a felon in possession of a firearm. Pursuant to a

nonbinding plea agreement, Hameed pleaded guilty to the conspiracy and firearm counts,

and the government dismissed the other charges.

In the plea agreement, Hameed agreed to be held responsible for between twenty and

thirty-five grams of crack. Under the then-applicable version of U.S.S.G. § 2D1.1—which

we shall refer to as the “crack guidelines”—that amount of crack resulted in a base offense

level of 28. A two-level enhancement for the firearm and a three-level reduction for
No. 09-3259 United States v. Hameed Page 3

acceptance of responsibility lowered Hameed’s total offense level to 27. Based on a

criminal-history category of II, his guideline range was 78 to 97 months. Because Hameed’s

offense involved more than five grams of crack and he had previously been convicted of a

drug felony, a mandatory minimum of ten years of imprisonment applied under 21 U.S.C.

§§ 841(b)(1)(B), 851. Hameed avoided the statutory minimum, however, by rendering

substantial assistance to the government in investigating or prosecuting others. The

government filed motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, allowing the

district court to impose a sentence below ten years. At the sentencing hearing on November

1, 2005, the district court granted the motions.

The sentencing transcript reveals that the district judge, the parties, and the probation

officer disagreed about the point from which any departure should be granted. Consistent

with the presentence investigation report, the plea agreement, and the parties’ expectations,

the district judge began with the base offense level called for by § 2D1.1, level 28. The

district judge added two levels for possession of a firearm, subtracted three levels for

acceptance of responsibility, and subtracted an additional level for substantial assistance at

the government’s recommendation, for a total offense level of 26. Calculating the resulting

guideline range as 70 to 87 months, the district judge sentenced Hameed to 70 months in

prison, 4 years of supervised release, a $500 fine, and a $200 special assessment.

On November 1, 2007, Amendment 706 to the sentencing guidelines went into

effect, reducing the base offense level for most crack offenses by two levels. U.S.S.G. Supp.

to App. C, amend. 706 (2009). On March 3, 2008, Amendment 713 made Amendment 706

retroactive. Id., amend. 713. Relying on those two amendments, Hameed moved for a

modification of sentence under 18 U.S.C. § 3582(c)(2), which allows district judges to

reduce sentences that were based on guidelines ranges later lowered by the U.S. Sentencing

Commission. The government did not oppose. See Dist. Ct. Document (“Doc.”) 89 (Mot.

for Sent. Reduction at 2). Nonetheless, the district judge denied the motion, concluding that

Hameed was ineligible for § 3582 relief because his sentence was based on the mandatory

minimum, not a sentencing range that had since been lowered. Hameed timely filed this

appeal.
No. 09-3259 United States v. Hameed Page 4

II. ANALYSIS

A. Standard of Review

Normally, we review a district court’s decision on whether to reduce a defendant’s

sentence under 18 U.S.C. § 3582 for abuse of discretion. United States v. Moore, 582 F.3d

641, 644 (6th Cir. 2009). But when, as in this case, a district court determines that a

defendant is ineligible for a sentence reduction, we review the decision de novo. United

States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010).

B. Eligibility for a Reduction Under 18 U.S.C. § 3582

Generally, a district court may not modify a defendant’s sentence after imposing it.

18 U.S.C. § 3582(c). Federal law creates an exception to this general rule when the

sentencing judge relied on the sentencing guidelines and those guidelines later are made

more lenient:

[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), upon

motion of the defendant or the Director of the Bureau of Prisons, or on its

own motion, 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.

§ 3582(c)(2). In this case, there is a readily identifiable “sentencing range that has

subsequently been lowered”: the range produced by the drug-quantity provisions for crackcocaine offenses found in U.S.S.G. § 2D1.1. See U.S.S.G. Supp. to App. C, amend. 706.

Section 3582(c)(2) makes plain, however, that to establish eligibility for a sentence reduction

under Amendment 706, Hameed will have to make two further showings: (1) that his 70-

month prison sentence was “based on” a sentencing range produced by reference to § 2D1.1,

and (2) that a reduction would be “consistent with applicable policy statements issued by the

Sentencing Commission.” We address each requirement below.
No. 09-3259 United States v. Hameed Page 5

1. Whether Hameed’s Sentence Was “Based On” U.S.S.G. § 2D1.1

Hameed makes two arguments that his sentence was “based on” § 2D1.1. First, he

finds it significant that the district judge calculated the guideline range under § 2D1.1 before

applying the mandatory minimum. We have held in a related context, however, that a

district judge’s mere calculation of the sentencing range under § 2D1.1 does not render a

defendant’s sentence “based on” the crack guidelines range if that range is subsequently

trumped by another provision of the guidelines. See United States v. Gillis, 592 F.3d 696,

699 (6th Cir. 2009) (rejecting this argument when the defendant was sentenced to the low

end of the career-offender guidelines); see also United States v. Caraballo, 552 F.3d 6, 9 (1st

Cir. 2008) (rejecting the argument when the career-offender guidelines applied because

§ 2D1.1 was only “a way station along the road that the district court traveled in arriving at

the appropriate sentencing range”). The same is true when an applicable mandatory

minimum is higher than the § 2D1.1 guideline range. The statutory minimum becomes the

guideline sentence and ordinarily is binding on the district judge. See U.S.S.G. § 5G1.1(b).

Second, Hameed argues that his sentence was “based on” the § 2D1.1 guideline

range because the district court in fact relied on that range in selecting a sentence after

calculating the mandatory minimum. In a limited set of situations, the district judge will not

be bound by the mandatory minimum. One such situation is when the government files a

motion under 18 U.S.C. § 3553(e), indicating that the defendant has provided “substantial

assistance in the investigation or prosecution of another person who has committed an

offense.” Here, the government filed such a motion, along with a substantial-assistance

motion recommending a departure from the sentencing guidelines under U.S.S.G. § 5K1.1,

and the district judge returned to § 2D1.1 to calculate Hameed’s ultimate sentence. On this

set of facts, Hameed’s argument that his sentence was “based on” the crack guidelines has

intuitive appeal.

Though in prior cases we have deemed defendants sentenced under enhanced

sentencing provisions (specifically, a mandatory minimum or the career-offender guidelines)

ineligible for § 3582(c)(2) relief because their sentences were not “based on” subsequently

lowered sentencing ranges, none of those cases foreclose Hameed’s “based on” argument.

All involved defendants who did not receive a departure from a mandatory minimum or the
No. 09-3259 United States v. Hameed Page 6

career-offender guidelines, who received a departure to a final sentence unrelated to the

crack guidelines range, or who received a departure to a final sentence that happened to fall

in the crack guidelines range but was not motivated by that range.

In Gillis and United States v. Alexander, 543 F.3d 819 (6th Cir. 2008), the

defendants were sentenced as career offenders, but neither received a departure, so the final

sentence was not related to the crack guidelines. Gillis, 592 F.3d at 699 (reasoning that

Amendment 706 “has no effect on the ultimate sentencing range imposed on Gillis”

(emphasis added)); Alexander, 543 F.3d at 825 (relying on the fact that “the sentencing range

applied to [the defendant’s] case is derived exclusively from the Guidelines’ unamended

career-offender provision set forth in U.S.S.G. § 4B1.1(a), not the amended drug-quantity

table listed at U.S.S.G. § 2D1.1” (emphasis added)).

In United States v. Johnson, 564 F.3d 419 (6th Cir. 2009), the defendant received a

departure below the mandatory minimum, but the ultimate sentence did not fall within or

bear any apparent connection to the § 2D1.1 sentencing range. Id. at 421–23 (holding that

defendant was ineligible for sentence reduction when § 2D1.1 produced a range of 235 to

293 months, the applicable statute required a minimum of 240 months, and the district judge

sentenced the defendant to 108 months pursuant to a § 3553(e) motion). Thus, the only

sentencing provision upon which the defendant’s sentence plausibly could have been based

was the predeparture mandatory minimum. See also United States v. Williams, — F.3d —,

2010 WL 2499384, at *4 n.2 (6th Cir. June 14, 2010) (holding that defendant was ineligible

for sentence reduction when the district judge granted a § 5K1.1 departure from careeroffender guidelines but did not use crack guidelines to select the final sentence, such that

“the court’s guidelines calculation remained at all times based on the career offender

provisions” (emphasis added)); United States v. Lockett, 341 F. App’x 129, 131 (6th Cir.

2009) (unpublished opinion) (holding that defendant was ineligible for sentence reduction

when the district judge granted a § 5K1.1 departure from career-offender guidelines but

imposed a sentence above the § 2D1.1 range, making it clear that the court “never relied

upon that offense level in calculating his sentence”); United States v. Leasure, 331 F. App’x

370, 378 (6th Cir. 2009) (unpublished opinion) (holding that defendant was ineligible for

sentence reduction when the district judge granted a 62-month departure from career-
No. 09-3259 United States v. Hameed Page 7

1

One recent case presented a set of facts similar to those involved here. In United States v.

Pembrook, — F.3d —, 2010 WL 2499656, (6th Cir. June 11, 2010), the district court calculated the

defendant’s crack guideline range, noted that the career-offender guidelines called for a higher range, and

then explicitly departed downward to a sentence within the crack guidelines range. Id. at *1. On appeal,

the majority did not address the “based on” requirement of § 3582(c)(2), evincing no disagreement with

the dissent’s statement that “[t]his condition has been satisfied in the present case because the district court

based Pembrook’s sentence on the crack cocaine Guideline range applicable to Pembrook absent

Pembrook’s career offender status.” Id. at *6 (Rogers, J., dissenting). The majority held instead that the

defendant was ineligible for a sentence reduction because the crack guidelines did not provide the

“applicable guideline range” under U.S.S.G. §1B1.10(a)(2)(B). Id. at *4 (majority opinion).

2

This inquiry does not confine us to the explicit statements made by the district court in

pronouncing its sentence, notwithstanding the dissent’s endorsement of such a limitation. It may be

sufficiently clear that a district court used the crack guidelines to select a final sentence even though it did

not say so—for example, when an attorney argued for such an approach and the court acted in accordance

with it.

offender range, but giving no indication that the final sentence fell within the crack

guidelines range).

Finally, in United States v. Perdue, 572 F.3d 288 (6th Cir. 2009), the district court

departed downward from the career-offender guidelines and imposed a sentence that fell

within the § 2D1.1 range, but there was no sign that the district court selected the final

sentence because of the § 2D1.1 range that otherwise would have applied. Id. at 290,

292–93 (discussing the sentence as an application of the career-offender guidelines); see also

United States v. Parker, 358 F. App’x 632, 633 (6th Cir. 2009) (unpublished opinion)

(holding defendant ineligible for sentence reduction when district judge granted § 3553(e)

motion and departed from 240-month mandatory minimum to a sentence of 150 months,

which fell in the § 2D1.1 range of 135 to 168 months, but betraying no hint that the district

judge intended to return defendant to the guidelines position he otherwise would have

occupied).

Hameed’s case is readily distinguished from each of these cases.1

 In determining

whether a sentence was “based on” a subsequently lowered guideline range in a plainmeaning sense of the words, we must consider whether “the original sentence was, in

fact, ‘based on’” such a range, Curry, 606 F.3d at 329 (emphasis added); that is, we look

to “what the district court actually said and did at the original sentencing,” United States

v. Hargrove, 628 F. Supp. 2d 241, 244 (D. Mass. 2009).2

 In Hameed’s case, the district

judge granted the government’s substantial-assistance motions, which the judge

understood as permitting him “to sentence the defendant pursuant to the sentencing
No. 09-3259 United States v. Hameed Page 8

guidelines.” Doc. 101 (Sent. Tr. at 2). The district judge then began his departure

analysis from the base offense level applicable under § 2D1.1. He added two levels for

possession of a firearm, subtracted three levels for acceptance of responsibility, and

subtracted one level more at the government’s recommendation, resulting in a total

offense level of 26 and a guideline range of 70 to 87 months. Notably, this process

followed the express recommendation of the Assistant United States Attorney, who

stated that “the natural level in this case is a level 30 . . . . So it would be the

government’s position that the reductions for acceptance as well as the 5K would go

from that level, because that’s the natural level.” Doc. 101 (Sent. Tr. at 7). The district

judge then sentenced Hameed to the low end of the resulting range, 70 months of

imprisonment.

Unlike in the cases we have previously considered, it cannot be said here that the

district judge applied a sentencing range “derived exclusively” from a mandatory

minimum or career-offender guideline, Alexander, 543 F.3d at 825, or that he “never

relied upon [the § 2D1.1] offense level in calculating [the defendant’s] sentence,”

Lockett, 341 F. App’x at 131. The record is clear that the district judge actually relied

on the crack guidelines under § 2D1.1 in fashioning a sentence for Hameed. Thus, this

is not a case in which “Amendment 706 . . . has no effect on the ultimate sentencing

range imposed on [Hameed].” Gillis, 592 F.3d at 699. To the contrary, the district judge

based Hameed’s ultimate sentence on the crack guidelines, and Amendment 706 lowered

those guidelines.

We find support for this commonsense conclusion in decisions involving the

career-offender guidelines from four of our sister circuits. In United States v. Williams,

551 F.3d 182 (2d Cir. 2009), the Second Circuit rejected the argument that the

defendant’s sentence, arrived at after a substantial-assistance departure from a

mandatory minimum, was “based on” the crack guidelines because “[t]here is no

evidence that the Guidelines range calculated under U.S.S.G. § 2D1.1(c) played any role

in the district court’s determination of his sentence.” Id. at 184. In so holding, the court

left open the possibility that a defendant would satisfy the “based on” element if the
No. 09-3259 United States v. Hameed Page 9

district court selected his post-departure sentence by reference to § 2D1.1. In United

States v. McGee, 553 F.3d 225 (2d Cir. 2009), the Second Circuit confronted just such

a case. There, the district court calculated the guideline range under § 2D1.1, applied

the career-offender guidelines, and then specifically departed downward “to the level

that the defendant would have been in absent the career offender status calculation and

consideration.” Id. at 227 (internal quotation marks omitted). The court held that

McGee indeed was sentenced “based on” a subsequently lowered sentencing range

“because the district court premised McGee’s ultimate sentence on the crack cocaine

guidelines.” Id.

In United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), while denying relief

to the crack defendants before it, the Eleventh Circuit indicated that a sentence would

be “based on” the crack guidelines if a court “reduced the defendants’ offense levels to

those that would be in effect absent the career offender guideline.” Id. at 1329

(discussing United States v. Ragland, 568 F. Supp. 2d 19 (D.D.C. 2008), and United

States v. Poindexter, 550 F. Supp. 2d 578 (E.D. Pa. 2008)). In United States v. Munn,

595 F.3d 183 (4th Cir. 2010), the Fourth Circuit relied on McGee’s and Moore’s

interpretation of § 3582(c)(2) to hold that a defendant’s sentence was “based on” the

crack guidelines on exactly that set of facts. See id. at 189, 192.

Most recently, in United States v. Cardosa, — F.3d —, 2010 WL 2136664 (1st

Cir. 2010), the First Circuit agreed that when a sentencing judge departs from the careeroffender guidelines to the otherwise-applicable crack guidelines range, the sentence is

“based on” a guideline range that subsequently has been lowered. The court

acknowledged that one could argue that under those circumstances a defendant’s

sentence is “based on” the predeparture career-offender guidelines, but it rejected this

interpretation as the “less natural reading” of the “based on” clause of § 3582(c)(2). Id.

at *3. Under the “more natural reading,” when a judge departs “to some other guideline

with its own sentencing range, it is perfectly fair to say that the sentence imposed is

‘based on’ that adopted range.” Id. at *4. The First Circuit further explained that this

plain-meaning interpretation of “based on” is supported by the policy rationale for
No. 09-3259 United States v. Hameed Page 10

3

Three cases have read the “based on” requirement differently. In United States v. Hood, 556

F.3d 226 (4th Cir. 2009), the district judge explicitly considered the crack guidelines range in determining

what sentence to impose in departing from a mandatory minimum under § 3553(e). Id. at 237 (“The

district court stated at sentencing, ‘[I]f the court isn’t bound by that statute [fixing the mandatory

minimum], then the only thing left is the guideline range.’”). The facts suggested that had the revised

crack guidelines been in place at the time, the sentence would have been even lower. Nonetheless, the

panel eschewed a plain-language reading of “based on” and concluded that the district judge had based

the defendant’s sentence not on the crack guidelines but on the mandatory minimum. The thrust of the

panel’s reasoning, however, was that the crack guidelines were not a proper factor in determining the

postdeparture sentence. See id. (explaining that the district court’s consideration of the crack guidelines

was “legally insignificant”). The Fifth Circuit echoed this approach in United States v. Carter, 595 F.3d

575 (5th Cir. 2010), stating in dicta that “it does not matter to the sentence-reduction analysis that a district

court may have considered or purported to rely on general guideline provisions when calculating the extent

of a downward departure” because “we will not consider a sentence to be ‘based on’ informal or erroneous

considerations.” Id. at 579 n.4.

We agree that the crack guidelines generally will not guide a district judge in selecting a departure

for substantial assistance. But this premise does not change the fact that the district judge in Hood (and

the hypothetical district judge discussed in Carter) in fact “based” the defendant’s sentence “on” the crack

guidelines. We see no reason to indulge any fiction to the contrary, or to hold that “based on” means one

thing in mandatory-minimum cases and something entirely different in career-offender cases, as the dissent

would have us do. There is, after all, no textual basis in § 3582(c)(2) for either course. The irrelevance

of the crack guidelines to a substantial-assistance departure should not tempt us to rip the technical

meaning of “based on” from the plain meaning of its component words; instead, it leads to a different

conclusion also faithful to the text of a governing provision: that the crack guidelines were not

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

In United States v. Darton, 595 F.3d 1191 (10th Cir. 2010), a case involving the career-offender

guidelines, the Tenth Circuit held that a defendant could not point to a postdeparture guideline range to

establish that his sentence was “based on” a range that subsequently had been lowered. The holding rested

not on an interpretation of the “based on” language in § 3582(c)(2), however, but on an interpretation of

the “applicable guideline range” language from § 1B1.10(a)(2)(B)—which we address below. The panel

used the Guidelines Manual’s definition of “departure” to define the “applicable guideline range” as the

predeparture range. Because the circuit previously had decided that the “based on” and “applicable

guideline range” provisions were identical, the panel concluded that a sentence could not be “based on”

any postdeparture sentencing range for the purposes of § 3582(c)(2) eligibility. The court did not consider

the plain meaning of “based on” or the possibility that the § 3582(c)(2) and § 1B1.10(a)(2)(B) requirements

are not completely coextensive. See id. at 1194–97.

§ 3582(c)(2) and the crack sentencing amendments. Id. at *3. The Sentencing

Commission amended the crack guidelines to alleviate the unwarranted sentencing

disparity between powder and crack cocaine offenses, and it made the amendment

retroactive to defendants previously sentenced under the overly severe regime.

According to the First Circuit, the Commission’s purposes are best served by concluding

that any defendant whose final sentence in fact was chosen by reference to the crack

guidelines satisfies the “based on” requirement. See id. We agree.3

To recapitulate, it is beyond peradventure that the district judge in this case

actually relied on the crack guidelines in selecting a final sentence for Hameed after

granting the government’s substantial-assistance motions. Under these circumstances,

we have no difficulty concluding that Hameed’s ultimate sentence was “based on” a
No. 09-3259 United States v. Hameed Page 11

range dictated by § 2D1.1, “a sentencing range that has subsequently been lowered by

the Sentencing Commission” in Amendment 706.

2. Whether a Reduction Would Be Consistent with the Sentencing

Commission’s Policy Statements

Although we conclude that Hameed’s sentence was “based on” a subsequently

lowered sentencing range, he is not eligible for a reduction of sentence unless “such a

reduction is consistent with applicable policy statements issued by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). Hameed seeks to avoid this requirement

altogether. He objects that the policy statements and the guidelines in their entirety are

only advisory. To be sure, district judges are free to disagree with the guidelines on

policy grounds and to vary based on the factors listed in 18 U.S.C. § 3553(a) when

imposing an original sentence. Spears v. United States, 129 S. Ct. 840, 843 (2009);

United States v. Booker, 543 U.S. 220, 245 (2005). The Commission’s policy statements

are mandatory, however, 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). See

Dillon v. United States, 130 S. Ct. 2683, 2010 WL 2400109, at *5–7 (2010); Gillis, 592

F.3d at 700; Perdue, 572 F.3d at 292. Hameed next exhorts us to follow our recent

decision in United States v. Grant, 567 F.3d 776 (6th Cir. 2009), vacated for reh’g en

banc (Oct. 16, 2009), which held that district judges are not bound by the Commission’s

policy statements when reducing a sentence under Federal Rule of Criminal Procedure

35(b). But Rule 35(b) and § 3582(c)(2) differ in a critical way: the former was amended

to remove any reference to the policy statements, whereas the latter retains a clause

making those policy statements mandatory. Thus, Hameed indeed must establish that

a reduction of his sentence would be consistent with the Commission’s policy statements

to be eligible for discretionary relief under § 3582(c)(2).

One such policy statement provides:

A reduction in the defendant’s term of imprisonment is not consistent

with this policy statement and therefore is not authorized under 18 U.S.C.

§ 3582(c)(2) if—
No. 09-3259 United States v. Hameed Page 12

(A) none of the amendments listed in subsection (c) is

applicable to the defendant; or

(B) an amendment listed in subsection (c) does not have

the effect of lowering the defendant’s applicable

guideline range.

U.S.S.G. § 1B1.10(a)(2). Amendment 706 is among those listed in subsection (c). The

issue, then, is whether Amendment 706 lowered Hameed’s applicable guideline range.

Amendment 706’s impact is well understood, so our inquiry focuses on the

question, what is Hameed’s “applicable guideline range”? Had no mandatory minimum

applied, the applicable guideline range would have been that provided by the drugquantity guidelines under § 2D1.1, which Amendment 706 lowered. Hameed did face

a mandatory minimum, however, and the government essentially argues that the

mandatory minimum, which Amendment 706 did not affect, became his applicable

guideline range. See Appellee’s Br. at 9–10. Presumably, the government relies on

U.S.S.G. § 5G1.1(b), which provides that “[w]here a statutorily required minimum

sentence is greater than the maximum of the applicable guideline range, the statutorily

required minimum sentence shall be the guideline sentence.”

It is not obvious from the text of § 5G1.1(b) that a mandatory minimum

automatically becomes the “applicable guideline range,” or that it is the only “applicable

guideline range” that matters in the sentence-reduction context. In United States v.

Jones, 569 F.3d 569 (6th Cir. 2009), we acknowledged that “§ 5G1.1 is susceptible to

two reasonable interpretations”:

First, § 5G1.1 reasonably may be construed to support the

meaning of “guideline range” advanced by Jones. On this view, § 5G1.1

refers to two distinct concepts: the “applicable guideline range” and the

“guideline sentence.” The applicable “guideline range” is determined by

the sentencing court based on the defendant’s offense level and criminal

history. When the statutory-minimum sentence is greater than the top of

the guideline range calculated by the sentencing court, the statutory

minimum effectively trumps the guideline range and becomes the

“guideline sentence.” U.S.S.G. § 5G1.1(b). Thus, § 5G1.1(b)

contemplates a two-step process: first, the sentencing court must

calculate the applicable guideline range; next, the sentencing court must
No. 09-3259 United States v. Hameed Page 13

determine whether the statutory minimum exceeds the top of the properly

calculated guideline range. If the statutory minimum is greater than the

top of the guideline range, the statutory minimum becomes the guideline

sentence. On this reading of § 5G1.1(b), the guideline range does not

become equivalent to, or merge into, the statutory minimum/guideline

sentence.

The dissent offers another reasonable reading of § 5G1.1. In the

dissent’s view, when there is a mandatory minimum that is above the

guideline range calculated by the sentencing court, that mandatory

minimum, though a single point, becomes the ‘guideline range.’

Id. at 572. Elsewhere, we have stated that “[w]here a mandatory minimum sentence

exceeds the otherwise applicable Guidelines range . . . it replaces that Guidelines range.”

Johnson, 564 F.3d at 423. Nowhere have we ruled out the possibility that there might

be multiple guideline ranges applicable to a single defendant’s sentencing.

Ultimately, we need not resolve once and for all whether a mandatory minimum

is a guideline “range” or whether it is always the only range that may be considered for

the purposes of § 1B1.10(a)(2)(B). Hameed’s claim fails for another reason: though

§ 2D1.1 surely provided a “guideline range,” it did not provide one that was “applicable”

to a departure for substantial assistance under § 3553(e) and § 5K1.1 in Hameed’s case.

In United States v. Stewart, 306 F.3d 295 (6th Cir. 2002), we held that “the

appropriate starting point for calculating a downward departure under 18 U.S.C.

§ 3553(e) is the mandatory minimum sentence itself.” Id. at 332. Here, the district

judge intended to begin from the mandatory minimum but acceded to the parties’ request

that he take the base offense level prescribed by § 2D1.1 as his starting point.

Nonetheless, the guideline range resulting from that base offense level was not

“applicable” because it was not the correct point from which the departure should have

been measured.

Nor were the crack guidelines “applicable” in determining the extent of the

departure Hameed received. In United States v. Bullard, 390 F.3d 413 (6th Cir. 2004),

we clarified that “a departure under section 3553(e) must be based solely upon the

substantial assistance rendered by the defendant” and that “only factors relating to a

defendant’s cooperation may influence the extent of a departure pursuant to § 3553(e).”
No. 09-3259 United States v. Hameed Page 14

4

We can imagine situations in which the crack guidelines would be relevant—for example, if a

district judge considers the otherwise-applicable crack guidelines under § 3553(a) in deciding to award

a smaller downward departure than would be warranted by the defendant’s substantial assistance.

Id. at 416 (internal quotation marks and brackets omitted). The crack guidelines would

not appear to be relevant in determining the value of Hameed’s cooperation and setting

his ultimate sentence.4

We therefore conclude that even though Amendment 706 lowered the sentencing

range that the district judge calculated under § 2D1.1 in Hameed’s case, Amendment 706

did not lower an “applicable” guideline range as required by U.S.S.G. § 1B1.10(a)(2)(B).

Thus, a sentence reduction would not be “consistent with applicable policy statements

issued by the Sentencing Commission” and is unavailable under 18 U.S.C. § 3582(c)(2).

III. CONCLUSION

To be eligible for a reduction of sentence under 18 U.S.C. § 3582(c)(2), a

defendant must satisfy two conditions. First, he must have been sentenced “based on a

sentencing range that has subsequently been lowered by the Sentencing Commission.”

§ 3582(c)(2). Second, a reduction must be “consistent with applicable policy statements

issued by the Sentencing Commission,” id., one of which provides that a guidelines

amendment must “have the effect of lowering the defendant’s applicable guideline

range,” U.S.S.G. § 1B1.10(a)(2)(B). Hameed can satisfy only one of the two conditions.

His ultimate sentence was indeed “based on” the crack guidelines, and those guidelines

have since been lowered, but they were not actually “applicable” to the departure he

received pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. For that reason, the

district judge correctly deemed Hameed ineligible for a sentence reduction under

§ 3582(c)(2). We therefore AFFIRM.
No. 09-3259 United States v. Hameed Page 15

____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

____________________________________________________

ALICE M. BATCHELDER, Chief Judge, concurring in part and dissenting in

part. I agree that Talif Hameed is not eligible for a reduction of sentence under

18 U.S.C. § 3582(c)(2). I disagree, however, with the majority’s conclusion that

Hameed’s sentence was “based on” U.S.S.G. § 2D1.1. I also disagree with the

majority’s dicta regarding whether or not the statutory minimum is the only “applicable

guideline range” for purposes of U.S.S.G. § 1B1.10(a)(2)(B). I therefore concur in part

and dissent in part.

The majority’s analysis of the “based on” prong of the test for eligibility for

reduction of sentence does not take proper account of the key differences between a

departure from a career offender guideline sentence and a departure from a statutory

minimum sentence, namely, that a district court has very limited authority to sentence

below that minimum, and that a departure from a statutory minimum is not the removal

of that minimum. In United States v. Pembrook, __ F.3d __, 2010 WL 2499656 (6th Cir.

June 11, 2010), we articulated the test for determining whether a defendant was eligible

for a sentence reduction under 18 U.S.C. § 3582(c)(2). Id. at *2. That test has two parts:

(1) was the sentence “based on a sentencing range that has subsequently been lowered

by the Sentencing Commission,” and (2) is “such a reduction . . . consistent with

applicable policy statements issued by the Sentencing Commission.” Id. (internal

quotation marks, citation, and emphasis omitted). The second of those prongs, we

explained, requires that the sentencing range subsequently lowered by the Commission

must have been the particular defendant’s applicable guideline range. Id. And this is

indeed the two-pronged test that the majority opinion repeats.

In Pembrook, however, the defendant was sentenced under the career offender

guidelines, not under a statutory minimum. Id. at *1. When considering a case

involving the career offender guidelines it makes sense to follow the kind of fact-based

analysis adopted by the majority because those guidelines are not mandatory — the
No. 09-3259 United States v. Hameed Page 16

1

As I read Moore, the court did not “indicate[] that a sentence would be ‘based on’ the crack

guidelines if a court ‘reduced the defendants’ offense levels to those that would be in effect absent the

career offender guideline.’” Maj. Op. at 9 (quoting Moore, 541 F.3d at 1329). Rather, in the quoted

section the court was merely distinguishing two relevant district court cases, but neither adopting the

reasoning in those opinions nor expressing any approval of it.

district court may reject them for appropriate reasons and substitute the crack guidelines

instead. See United States v. Herrera-Zuniga, 571 F.3d 568, 584–85 (6th Cir. 2009);

United States v. Cole, 343 F. App’x 109, 116 (6th Cir. 2009) (unpublished). In such a

case, whether the district court did, in fact, explicitly rely on the crack guidelines instead

of U.S.S.G. § 4B1.1— the Career Offender Guideline — is relevant to the determination

of whether the sentence is “based on” the crack guidelines. It is therefore not surprising

that the cases the majority opinion primarily relies upon all involve the career offender

guidelines and not a statutory minimum. See United States v. McGee, 553 F.3d 225 (2d

Cir. 2009); United States v. Moore, 541 F.3d 1323 (11th Cir. 2008);1 United States v.

Cardosa, 606 F.3d 16 (1st Cir. 2010).

Statutory minimum sentences, however, are mandatory, and the district court

may not sentence below a statutory minimum except as permitted under 18 U.S.C.

§§ 3553(e) or 3553(f). Melendez v. United States, 518 U.S. 120, 125–26 (1996); United

States v. Stewart, 306 F.3d 295, 331 n.21 (6th Cir. 2002). Hence, in cases such as the

one before us here, this two-part test collapses into one question: was the defendant

sentenced pursuant to a statutory minimum? The reason for this is straightforward: A

departure under § 3553(e), as the majority recognizes in the second part of its analysis,

“must be based solely upon the ‘substantial assistance’ rendered by the defendant.”

United States v. Bullard, 390 F.3d 413, 416 (6th Cir. 2004).

“‘Where a statutorily required minimum sentence is greater than the maximum

of the applicable guidelines range, the statutorily required minimum sentence shall be

the guideline sentence.’” United States v. Johnson, 564 F.3d 419, 422 (6th Cir. 2009)

(quoting U.S.S.G. § 5G1.1(b)). Hameed does not dispute that the statutory minimum

applied to him, and that the minimum was higher than the applicable crack guideline

range under § 2D1.1. Hameed’s guideline sentence was thus the statutory minimum

sentence. The only way that the district court could sentence Hameed below that
No. 09-3259 United States v. Hameed Page 17

2

No one suggests that § 3553(f) applies in this case.

statutory minimum was to grant the government’s motion for a departure for substantial

assistance under § 3553(e)2 and U.S.S.G. § 5K1.1. And that departure, as a matter of

law, must be “based solely” upon the defendant’s substantial assistance. Therefore,

regardless of what the district court said at sentencing, and regardless of the

reasonableness of imposing a sentence that corresponded to the otherwise applicable

“crack” guidelines sentence, the departure was not “based on” the crack guidelines. The

sentence was based on the statutory minimum; the departure was from the statutory

minimum; the departure was based solely on Hameed’s substantial assistance; and,

although the crack guidelines were considered in determining the extent of that

departure, neither the departure nor the sentence was based on those guidelines. In short,

no part of the sentence was based on anything other than the statutory minimum. This

is the result dictated by the statute, the guidelines, and our binding precedent.

This approach also finds support in Judge Niemeyer’s well-reasoned opinion for

the Fourth Circuit in United States v. Hood, 556 F.3d 226 (4th Cir. 2009). In Hood,

Judge Niemeyer found that two defendants who received § 3553(e) departures from

statutory minimums were ineligible for sentence reductions under § 3582(c)(2) despite

the fact that in one of the cases the district court “explicitly took into account the crack

cocaine Guidelines range that would have been applicable but for the statutory

minimum.” Id. at 237. The court, however, found that the district court’s comments 

were legally insignificant for purposes of the analysis under

§ 3582(c)(2). . . . [Defendant’s] sentence was based on a statutory

minimum fixed by 21 U.S.C. § 841(b)(1)(A), from which the district

court departed downward as authorized by 18 U.S.C. § 3553(e) for

[Defendant’s] substantial assistance, not on any “applicable guideline

range” lowered by Amendment 706. No guideline range was applicable,

and Amendment 706 did not purport to reduce any factors that the district

court was authorized to consider in quantifying a downward departure

under § 3553(e).

Id. (emphasis added). As the court succinctly put it, “§ 3553(e) allows for a departure

from, not the removal of, a statutorily required minimum sentence.” Id. at 236 (internal
No. 09-3259 United States v. Hameed Page 18

3

The majority states that after the district court granted the government’s motion for a departure

from the statutory minimum under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, it “resorted to the guideline

range under § 2D1.1.” While this is not incorrect as far as it goes, it does not tell the whole story. At the

sentencing hearing, after a lengthy discussion of the appropriate method of calculation, the probation

officer explained that the appropriate level was 28. This was derived, correctly, by taking the first level

to include the statutory minimum of 120 months (here offense level 29, criminal history category II), then

subtracting a level for substantial assistance under §§ 3553(e) and 5K1.1. [R. 101 (Sentencing Transcript)

at 8.] The district court agreed, but stated that he would adhere to his policy of “sentenc[ing] in accordance

with the stipulations in the plea agreement.” He further noted that the sentence under level 26, category

II was “a bigger break than [Hameed] deserves.” The district court did not depart on its own initiative to

the crack guidelines, but merely acquiesced to the parties’ agreement. See United States v. McIntosh, 484

F.3d 832, 836 (6th Cir. 2007) (affirming a sentence below the statutory minimum based on the

government’s consent in the plea agreement).

quotation marks and citation omitted). This approach has been directly followed in the

Fifth Circuit, with similar holdings in the Eighth and Eleventh as well. See United States

v. Carter, 595 F.3d 575, 578–81 (5th Cir. 2010) (per curiam) (adopting Hood’s analysis);

United States v. Byers, 561 F.3d 825, 832 (8th Cir. 2009); United States v. Williams, 549

F.3d 1337, 1341–42 (11th Cir. 2009) (per curiam).

Therefore, I would hold that when a statutory minimum applies, what the district

court said is irrelevant for the purposes of § 3582(c)(2), and that this sentence was

“based on” the statutory minimum and not the crack guideline range.

I also write separately to emphasize the limited (limited, indeed, to a vanishing

point) reach of the majority’s approach to the “based on” prong. I read the majority’s

“based on” analysis as limited to those cases where the district court explicitly relies on

the crack guidelines as a substitute for the statutory minimum.3 See United States v.

Williams, __ F.3d __, 2010 WL 2499384, *2 n.2 (6th Cir. June 14, 2010) (distinguishing

United States v. McGee, 553 F.3d 225 (2d Cir. 2009) based on the district court in

McGee “explicitly” rejecting the career offender guidelines and “choosing to substitute

the crack guidelines in calculating the range”); United States v. Martinez, 575 F.3d 82,

84 (2d Cir. 2009) (limiting McGee to cases where the district court “explicitly” departed

from the otherwise applicable career offender guidelines to the crack guidelines); United

States v. Richardson, 339 F. App’x 60, 61 (2d Cir. 2009) (same). But regardless of what

the district court said explicitly or otherwise, even under the majority’s approach no

defendant who was subject to a statutory minimum and received a departure under

§ 3553(e) is eligible for a sentence reduction under § 3583(c)(2). The crack guidelines
No. 09-3259 United States v. Hameed Page 19

cannot be the “applicable guideline range” when the departure is “based solely” upon the

defendant’s substantial assistance and the departure is taken from the statutory minimum

and does not remove it. As we recently explained in United States v. Avent, a case in

which the district court considered the otherwise applicable crack guideline range when

determining the extent of the downward departure:

[I]n United States v. Pembrook, this Court held that “the term ‘applicable

guideline range’ in U.S.S.G. § 1B1.10 refers to a defendant’s predeparture guideline range.” Binding precedent compels the conclusion

that [defendant’s] mandatory minimum, rather than the crack-cocaine

guidelines range, constituted [defendant’s] pre-departure “applicable

guidelines range” for the purposes of § 1B1.10. Accordingly,

Amendment 706 did not “have the effect of lowering [defendant’s]

applicable guidelines range,” as § 1B1.10 requires, and the district court

lacked the authority to resentence [defendant].

No. 09-5647, slip op. at 3 (6th Cir. July 13, 2010) (internal citations omitted).

Finally, I briefly note my disagreement with the majority’s dicta regarding

whether the statutory minimum “is a guideline ‘range’ or whether it is always the only

range that may be considered for the purposes of § 1B1.10 (a)(2)(b).” I regard those

questions to be sufficiently answered by Johnson and numerous other opinions. See

Johnson, 564 F.3d at 423 (“Nor did the district court . . . conflate the concept of a

Guidelines range with that of a Guidelines sentence. Where a mandatory minimum

sentence exceeds the otherwise applicable Guidelines range . . . it replaces that

Guidelines range.”).

Accordingly, I concur in finding that Hameed was not eligible for a sentence

reduction under § 3582(c)(2), but dissent in part because I find that his sentence was not

“based on” the crack guidelines.