PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 12-1330

______

UNITED STATES OF AMERICA,

Appellant

v.

ANDRE WARE

______

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2-08-cr-00625-001)

District Court Judge: Honorable Jan E. DuBois

______

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 11, 2012

Before: SMITH, CHAGARES and GARTH, Circuit Judges.
2

No. 12-1671

______

UNITED STATES OF AMERICA,

v.

ALLEN STRATTON

a/k/a

NECK BONE

ALLEN STRATTON,

Appellant

______

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2-99-cr-00326-001)

District Court Judge: Honorable William H. Yohn, Jr.

______

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 11, 2012

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

(Opinion Filed: September 21, 2012)
3

Zane David Memeger, Esq.

Robert A. Zauzmer, Esq

Bernadette McKeon, Esq.

Richard A. Lloret, Esq.

United States Attorney‟s Office

Eastern District of Pennsylvania

615 Chestnut Street, Suite 1250

Philadelphia, PA 191906

(215) 861-8326

Counsel for Appellant, 12-1330 / Appellee, 12-1671

Sarah S. Gannett, Esq.

Brett G. Sweitzer, Esq.

Leigh M. Skipper, Esq.

Federal Community Defender Office

for the Eastern District of Pennsylvania

Suite 540 West – Curtis Center

601 Walnut Street

Philadelphia, PA 19106

(215) 928-1100

Counsel for Appellant, 12-1671/ Appellee, 12-1330

______

OPINION OF THE COURT

______

GARTH, Circuit Judge.

In these two appeals, we are called upon to resolve the 

alleged tension between the sentencing statutes and the 

Sentencing Guidelines. Andre Ware and Allen Stratton, both 

serving sentences for various offenses involving crack 

cocaine, each moved in their respective cases for reductions 
4

in their sentences following a retroactive amendment to the 

Federal Sentencing Guidelines applicable to crack cocaine 

offenses.

1

 

District Court Judge Dubois, presiding over Ware‟s 

case, granted his motion and reduced his sentence from 128 

months to 84 months. District Court Judge Yohn, presiding 

over Stratton‟s case, denied his motion to reduce his sentence 

from 188 months. The government appealed in Ware‟s case. 

Stratton appealed from his sentence in his case. 

Both cases present the same issue: whether the 

Sentencing Guidelines amendments at issue apply to 

defendants who, like Ware and Stratton, were originally 

sentenced on the basis of variances (Ware) or departures

(Stratton) from a guideline range not affected by the 

amendments. We hold that the Sentencing Guidelines 

amendments do not. Thus, we will reverse the District Court 

in Ware‟s case and affirm the District Court in Stratton‟s 

case.

I

In August 2009, Andre Ware was convicted of several 

drug offenses involving crack cocaine. His initial offense 

 

1 Both Ware and Stratton were street-level drug dealers. 

Ware‟s conviction included counts of conspiracy to possess 

crack cocaine with intent to distribute and possession of crack 

with intent to distribute within 1,000 feet of a school. Ware 

was found to be responsible for 1.17 grams of crack. Stratton 

was convicted on counts including distribution of crack 

cocaine within 1,000 feet of a school and possession with 

intent to distribute within 1,000 feet of a school. He was 

found responsible for 5.9 grams of crack.
5

level under the Sentencing Guidelines was 18, and his 

criminal history category was VI. Because Ware qualified as 

a career offender, his offense level was adjusted to 34, and his 

criminal history category remained VI. Under that level and 

category, the guideline range for Ware‟s sentence was 262 

months to 327 months‟ imprisonment. At sentencing, the 

District Court indicated that it felt that this range was too high

and granted a downward variance, sentencing him to 128 

months‟ imprisonment.

In 2010, the Sentencing Commission promulgated an 

amendment to the Sentencing Guidelines that, effective 

November 1, 2011, reduced the base offense levels for crack 

cocaine offenses by increasing the weight of drugs associated 

with each offense level. U.S.S.G., App. C, amd. 750. 

Simultaneously, the Commission also promulgated a further

amendment, Amendment 759, also effective November 1, 

2011, adding the relevant portions of Amendment 750 to the 

list of amendments that may trigger a retroactive sentence 

reduction. In the course of making these amendments, the 

Commission also modified the Commentary to its policy 

statement governing the retroactive application of Guidelines 

amendments. The amended Commentary specifies:

. . . Eligibility for consideration under 18 U.S.C. 

3582(c)(2) is triggered only by an amendment 

listed in subsection (c) that lowers the 

applicable guideline range (i.e., the guideline 

range that corresponds to the offense level and 

criminal history category determined pursuant 

to 1B1.1(a), which is determined before 

consideration of any departure provision in the 

Guidelines Manual or any variance). . . .
6

U.S.S.G. §1B1.10 cmt. 1(A).

In 2011, Ware moved for a reduction in his sentence 

pursuant to 18 U.S.C. § 3582(c)(2).2 Ware argued before the 

District Court that he was eligible for a sentence reduction 

notwithstanding the fact that under the amended Guidelines 

Commentary his “applicable guidelines range” was 

determined by his career offender status, precluding him 

from qualifying for a reduction. Specifically, Ware contended 

that the Guidelines Commentary is invalid and therefore not 

binding because it directly conflicts with § 3582(c)(2). 

District Court Judge Dubois agreed, concluding that “[t]o the 

extent that U.S.S.G. § 1B1.10‟s Application Notes 

Commentary prohibits the Court from reducing [Ware]‟s 

sentence, it is incompatible with 18 U.S.C. § 3582(c)(2) as 

interpreted by the Supreme Court [in Freeman v. United 

States, 131 S. Ct. 2685, 180 L. Ed. 2d 519 (2011)] and is 

invalid.” Judge Dubois further concluded that a reduction in 

Ware‟s sentence was consistent with the purposes of both 

Congress and the Sentencing Commission and reduced his 

sentence to 84 months. As noted, the government appealed.

II

In December 2000, Allen Stratton was convicted of 

several drug offenses involving crack cocaine. His initial 

offense level under the Sentencing Guidelines was 32, and his 

initial criminal history category was IV. Because Stratton 

qualified as a career offender, however, his criminal history 

category was adjusted to VI, and his adjusted offense level 

was 37. Under that level and category, the guideline range 

 

2

See text, infra Part III. 
7

for Stratton‟s sentence was 360 months to life imprisonment. 

At sentencing, Judge Yohn indicated that he felt that this 

range was too high and granted a downward departure for 

over-representation of criminal history, thereby reducing 

Stratton‟s offense level to 34 and his criminal history 

category to V. Under this calculation, Stratton faced a 

guideline range of 235-293 months. Judge Yohn sentenced 

him to 240 months.

In 2008, following a 2007 amendment to the 

Sentencing Guidelines reducing the offense level for crack 

cocaine offenses, U.S.S.G., App. C, amd. 706, Stratton filed a 

motion under § 3582(c)(2) for a reduction in sentence, which 

was granted, reducing his term to 188 months.

In 2011, Stratton filed another motion for a reduction 

in his sentence in light of Amendment 750. As Ware did, 

Stratton argued that the Guidelines Commentary precluding 

his receiving a reduction is invalid because it directly 

conflicts with § 3582(c)(2). Judge Yohn disagreed and 

determined that Stratton was not eligible for a reduction in 

sentence under § 1B1.10. Stratton appealed.

III

The District Court had jurisdiction over both cases 

under 18 U.S.C. § 3231. This court has jurisdiction pursuant 

to 28 U.S.C. § 1291.

Ordinarily, we review a District Court determination 

on a motion for a § 3582(c)(2) reduction of sentence for abuse 

of discretion. Because this case raises a purely legal question 

concerning the interpretation and legal status of § 3582(c)(2) 

and the related policy statement by the Sentencing 
8

Commission, however, our review is plenary. United States 

v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009).

Before addressing the arguments before us, we briefly 

outline the relevant statutory and Guidelines sections.

Section 3582(c)(2), under which both Ware and 

Stratton sought sentence reductions, provides that “in the case 

of a defendant who has been sentenced to a term of 

imprisonment based on a sentencing range that has 

subsequently been lowered by the Sentencing Commission . . 

. upon motion of the defendant . . . the court may reduce the 

term of imprisonment . . . if such a reduction is consistent

with applicable policy statements issued by the Sentencing 

Commission.” (Emphasis added.) The relevant Sentencing 

Commission policy statement, § 1B1.10(a)(1), in turn 

provides that, in general: 

In a case in which a defendant is serving a term 

of imprisonment, and the guideline range 

applicable to that defendant has subsequently 

been lowered as a result of an amendment to the 

Guidelines Manual [that is among those listed 

in § 1B1.10 (c)], the court may reduce the 

defendant‟s term of imprisonment as provided 

by 18 U.S.C. 3582(c)(2). As required by 18 

U.S.C. 3582(c)(2), any such reduction in the 

defendant’s term of imprisonment shall be 

consistent with this policy statement.

(Emphasis added.)

Section 1B1.10(a)(2) contains the following exclusion 

to this general rule: “A reduction in the defendant‟s term of 

imprisonment is not consistent with this policy statement and 
9

therefore is not authorized under 18 U.S.C. 3582(c)(2) if . . . 

[the amendment] does not have the effect of lowering the 

defendant’s applicable guideline range.” (Emphasis added.)

Of particular salience to this appeal, Commentary to § 

1B1.10 further provides: “. . . Eligibility for consideration 

under 18 U.S.C. § 3582(c)(2) is triggered only by an 

amendment listed in subsection (c) that lowers the applicable 

guideline range (i.e., the guideline range that corresponds to 

the offense level and criminal history category determined 

pursuant to §1B1.1(a), which is determined before 

consideration of any departure provision in the Guidelines 

Manual or any variance). . . .” Section 1B1.10 cmt. 

1(A)(emphasis added.) The parenthetical explaining that 

“applicable guideline range” is to be calculated prior to any 

variance or departure was inserted into the Commentary as 

part of Amendment 759.

All parties to these appeals agree that although 

Amendment 750 is a retroactive amendment as specified in § 

1B1.10 (c), the Commentary to § 1B1.10 precludes both 

Ware and Stratton from being eligible for sentence reductions 

under § 3582(c)(2). Under the Commentary, the “applicable 

guideline range” for both would be the guideline range 

reflecting their career offender designations, which were not 

affected by Amendment 750. Since the “applicable guideline 

range” was not lowered by Amendment 750, the Commentary 

makes clear that § 1B1.10 is inapplicable in these cases. The 

dispositive issue in these appeals, therefore, is whether the 

Commentary to § 1B1.10 is binding on the District Court.

IV

The Sentencing Commission is authorized, when it 

reduces the sentence for a given offense, to determine “in 
10

what circumstances and by what amount the sentences of 

prisoners serving terms of imprisonment for the offense may 

be reduced.” 28 U.S.C. § 994(u). The Supreme Court has 

recognized that through this statutory delegation “Congress 

has granted the Commission the unusual explicit power to 

decide whether and to what extent its amendments reducing 

sentences will be given retroactive effect.” Braxton v. United 

States, 500 U.S. 344, 348, 111 S. Ct. 1854, 1858, 114 L. Ed. 

2d 385 (1991)(emphasis in original). The Supreme Court has 

further recognized that as a result of this statutory delegation, 

“[a]mended commentary is binding on the federal courts even 

though it is not reviewed by Congress, and prior judicial 

constructions of a particular guideline cannot prevent the 

Commission from adopting a conflicting interpretation that 

satisfies the standard we set forth today.” Stinson v. United 

States, 508 U.S. 36, 46, 113 S. Ct. 1913, 1919, 123 L. Ed. 2d 

598 (1993). Under the aforementioned standard, “provided an 

agency‟s interpretation of its own regulations does not violate 

the Constitution or a federal statute, it must be given 

„controlling weight unless it is plainly erroneous or 

inconsistent with the regulation.‟” Id. at 508 U.S. 45, 113 S. 

Ct. 1919 (quoting Bowles v. Seminole Rock & Sand Co., 325 

U.S. 410, 414, 65 S. Ct. 1215, 1217, 89 L.Ed. 1700 (1945)). 

Thus, the Sentencing Commission‟s authority to restrict the 

retroactive effect of an amendment is circumscribed by the 

principle that when “the Commission‟s revised commentary 

is at odds with [a statute‟s] plain language . . . it must give 

way.” United States v. LaBonte, 520 U.S. 751, 757 (1997). 

Ware and Stratton contend that the Commentary in question 

conflicts with § 3582(c)(2) and must therefore “give way.”

The plain language of § 3582(c)(2) authorizing the 

court to reduce the sentence of a defendant who was 

sentenced “based on a sentencing range that has subsequently 
11

been lowered by the Sentencing Commission” provided such 

a reduction is also “consistent with applicable policy 

statements issued by the Sentencing Commission” precludes

Ware and Stratton‟s argument. As we have recognized, “[t]he 

plain language of § 3582(c)(2) requires that a sentence 

reduction be „consistent with applicable policy statements 

issued by the Sentencing Commission.‟ § 3582(c)(2). The 

plain language of the statute, therefore, specifically 

incorporates the Commission‟s policy statements . . . .”

United States v. Doe, 564 F.3d 305, 310 (3d Cir. 2009).

In Doe, the defendants, who had been convicted of 

crack cocaine offenses and had been granted departures from 

their respective statutory mandatory minimum sentences for 

having assisted the government, contended that the District 

Court had improperly denied their § 3582(c)(2) motions for 

sentence reduction following a retroactive Guidelines 

amendment reducing the offense level for crack cocaine 

offenses. Doe claimed, inter alia, that the Guidelines policy 

statement precluding a reduction where an amendment “does 

not have the effect of lowering the defendant‟s applicable 

guideline range,” § 1B1.10(a)(2)(B), improperly reinterpreted 

the term “based on” in § 3582(c)(2) and did not control 

because it conflicted with the broader terms and 

congressional intent of § 3582(c)(2). We rejected Doe‟s

premise that the Guidelines statement improperly redefined

the statutory term “based on.” See United States v. Flemming, 

617 F.3d 252, 260 n. 11 (3d Cir. 2010), as amended (Sept. 27, 

2010). In so doing, we observed: 

Not only did Congress intend to incorporate the 

Commission‟s policy statements into § 

3582(c)(2), but the policy statement and § 

3582(c)(2) are complementary. The first prong 
12

of § 3582(c)(2) requires that a defendant have 

been sentenced based on a sentencing range that 

has subsequently been lowered. The policy 

statement requires that the amendment must 

have actually had the effect of lowering the 

Guideline range. Although the policy statement 

is narrower, it certainly does not run contrary to 

§ 3582(c)(2).

Doe, 564 F.3d at 310-11. For the same reasons articulated in 

Doe, the Commentary at issue in the present case, which 

elaborates upon which modifications will qualify as lowering 

the guideline range under the policy statement complements, 

rather than contradicts, the terms of § 3582(c)(2). 

In reaching the opposite conclusion, Judge Dubois in 

Ware‟s case relied heavily on the United States Supreme 

Court‟s decision in Freeman v. United States, 131 S. Ct. 

2685, 180 L. Ed. 2d 519 (2011), and Ware and Stratton 

likewise invoke Freeman as the ground for their argument on 

appeal. This reliance is misplaced. In Freeman, the court 

interpreted § 3582(c)(2)‟s “based on” language to determine 

whether a defendant sentenced according to a plea agreement 

that recommended a particular sentence pursuant to Fed. R. 

Crim. Proc. 11(c)(1)(C) could be eligible for a sentence 

reduction under § 3582(c)(2). Justice Sotomayor, in a 

separate opinion that results in the court‟s holding, held that 

“if a [plea agreement pursuant to Rule 11(c)(1)(C)] expressly 

uses a Guidelines sentencing range applicable to the charged 

offense to establish the term of imprisonment, and that range 

is subsequently lowered by the United States Sentencing 

Commission, the term of imprisonment is „based on‟ the 

range employed and the defendant is eligible for sentence 

reduction under § 3582(c)(2).” Id. at 2695 (Sotomayor, J., 
13

concurring).3 Ware and Stratton now claim that the 

Commentary to § 1B1.10 improperly defines “applicable 

guideline range” in a manner inconsistent with the “based on”

language of § 3582(c)(2) as interpreted by Justice Sotomayor 

and the Supreme Court. 

As discussed previously, the Commentary at issue in 

these appeals does not present an interpretation of the 

statutory term “based on,” but rather presents an additional, 

complementary limit on sentences eligible for reduction 

pursuant to § 3582(c)(2). This limit is statutorily authorized 

by the requirement that a reduction be “consistent with 

applicable policy statements issued by the Sentencing 

Commission.” The meaning of the term “based on” – and 

hence the holding of Freeman – is simply not germane to the 

present appeals.4

 

3 A plurality of the Justices concluded that the court could 

“revisit a prior sentence to whatever extent the sentencing 

range in question was a relevant part of the analytic 

framework the judge used to determine the sentence.” 

Freeman, 131 S.Ct. at 2692-93. Justice Sotomayor concurred 

in the judgment, but on narrower reasoning that would permit 

reduction only in a subset of cases reviewable under the 

plurality approach. Justice Sotomayor‟s narrower reasoning 

thus stands as the binding holding of the court. Marks v. 

United States, 430 U.S. 188, 193 (1977). 

4 Moreover, Freeman was decided prior to the amendment of 

the Guidelines commentary that added the language at issue 

in these appeals. As we have recognized, § 3582(c)(2) 

expressly incorporates the Guidelines policies, and therefore 

modification of the relevant policies may affect the proper 

interpretation of the statute as a whole. It is clear, moreover, 
14

We also note that this conclusion is consistent with our

recent opinions in United States v. Barney, 672 F.3d 228 (3d 

Cir. 2012), and United States v. Berberena, ___ F. 3d ___, 

2012 WL 3937666 (3d Cir. September 11, 2012). In Barney, 

which dealt with a separate provision of the Sentencing 

Guidelines and was decided after Amendment 759 took 

effect, we considered “what is the „applicable guideline 

range‟ for a career offender receiving a . . . departure under a 

post-2003 edition of the Guidelines.” Id. at 231. We

concluded that there is “no doubt that a § 4A1.3 departure is a 

departure from the applicable guideline range, not a departure 

to the applicable guideline range.” Id. at 231-32 (emphasis in 

original). The applicable guideline range, we reasoned, is 

“the range dictated by the Career Offender Guidelines, not 

[the post-] departure range.” Id. at 232. We further noted 

that this conclusion was consistent with Amendment 759. Id.

at 232 n.1. Neither Ware nor Stratton has articulated any 

meaningful distinction between the question presented in this 

 

that the Sentencing Commission may modify the Guidelines 

and associated commentary in a manner that abrogates prior 

judicial decisions, much as Congress may amend a statute 

previously interpreted by the courts. See Braxton, 500 U.S. at 

348, 111 S. Ct. at 1858 (declining to resolve circuit split 

regarding meaning of Guideline where Sentencing 

Commission was in process of amending Guideline in manner 

that would resolve conflict); Stinson, 508 U.S. 36, 46, 113 S. 

Ct. 1913, 1919 (“prior judicial constructions of a particular 

guideline cannot prevent the Commission from adopting a 

conflicting interpretation . . . “). Thus, even if the meaning of 

“based on” in the context of § 3582(c)(2) were at issue in the 

present appeals, Freeman would not be controlling. 
15

case and the question previously resolved in Barney, nor are 

we aware of any such distinction. 

In Berberena we addressed several challenges to the 

Commission‟s authority to promulgate an amended policy 

statement to § 1B1.10 that generally prevented courts from 

reducing a defendant‟s sentence to a term less than the 

amended guideline range. Most relevant, we rejected 

Berberena‟s claim that the policy statement exceeded the 

Commission‟s statutory authority by intruding on judges‟

sentencing authority. In doing so, we noted that “the 

unfettered judicial discretion that Defendants seek to preserve 

is at odds with the narrow scope of § 3582(c)(2) sentence 

reduction proceedings.” Berberena, ___ F. 3d at ___, 2012 

WL 3937666, at *5.

We therefore conclude that the Sentencing 

Commission‟s Commentary defining “applicable guideline 

range” in such a manner as to exclude ranges determined as 

the result of variances and departures is not at odds and is not 

in conflict with the plain language of § 3582(c)(2) and is

therefore binding on the District Courts. As we have 

determined the Commentary at issue to be valid, Ware and 

Stratton were not entitled to reductions of their sentences.

V

We will reverse the District Court‟s order entered on

January 9, 2012 (our appeal no. 12-1330) granting Ware‟s 

motion for reduction of sentence, and we will affirm the 

District Court‟s order entered on February 28, 2012 (our 

appeal no. 12-1671) denying Stratton‟s motion for reduction 

of sentence.