IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20235

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ADRIAN LEWIS CARTER,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Texas

Before JONES, Chief Judge, and SMITH and ELROD, Circuit Judges.

PER CURIAM:

Adrian Lewis Carter appeals the denial of his motion to reduce his

sentence in response to a recent change to the federal sentencing guidelines for

crimes involving crack cocaine. Because Carter’s sentence was based on a

minimum prescribed by statute, we AFFIRM.

I. Background and Proceedings

In June 2005, Carter pleaded guilty to (1) possession, with intent to

distribute, of 50 grams or more of a mixture containing cocaine base (i.e. crack

cocaine), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and (2) possession

of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A). The district court sentenced Carter to 96 months of imprisonment

United States Court of Appeals

Fifth Circuit

F I L E D

January 28, 2010

Charles R. Fulbruge III

Clerk

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 Carter does not dispute this calculation or the district court’s determination that his 1

crime made the statutory minimum sentence applicable.

2

for these offenses, including 36 months for the possession with intent to

distribute count, and 60 months for the firearms count.

Only the calculation of the possession count is presently at issue. The

district court admonished Carter at the time of his plea that he faced a statutory

minimum penalty of 120 months’ imprisonment for this count. See 21 U.S.C. §

841(b)(1)(A). This statutory minimum was greater than the high end of the

sentencing guideline range of 87 to 108 months calculated in the Presentence

Report. Accordingly, the 120-month statutory minimum became the applicable 1

“guideline sentence.” See U.S.S.G. § 5G1.1(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.”). Prior to sentencing, the government filed a motion for a downward

departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, based on Carter’s

substantial assistance. As it was permitted to do, the district court granted the

motion, sentencing Carter to 36 months rather than the longer terms called for

by the guideline range and statutory minimum.

Effective November 1, 2007, the United States Sentencing Commission

amended the sentencing guidelines applicable to crack cocaine offenses,

including the offense now at issue. See U.S.S.G. app. C, amend. 706, at 226–31

(Supp. 2008) (amending U.S.S.G. § 2D1.1(c)); U.S.S.G. app. C, amend. 713, at

253 (Supp. 2008) (making Amendment 706 retroactively applicable). It is

undisputed that if the terms of this amendment had applied, Carter’s base

offense level would have been lower, and accordingly, the 87 to 108 month

guideline range would have been lower as well. 

In April 2008, Carter filed a motion under 18 U.S.C. § 3582(c)(2) for a

reduction of sentence based on Amendments 706 and 713. He argued that his

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 Carter notes that the district court stated that “the defendant is ineligible as he must 2

serve the mandatory minimum,” when in fact Carter’s original sentence was well below the

statutory minimum. He therefore asks for remand to provide the district court with an

opportunity to clarify its ruling. It seems clear enough to us that the district court ruled that

Carter is not entitled to a reduction because his sentence was based on a statutory minimum

rather than the guideline range that was subsequently amended.

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36-month sentence represented a 59 percent reduction from the 87-month low

end of the Presentence Report’s guideline calculation, that a correct guideline

range in light of the crack cocaine amendments would be 70 to 87 months, and

therefore that the district court should reduce this portion of his sentence to 59

percent below 70 months. This would result in a sentence of 29 months, rather

than 36, on the possession count.

The district court denied the motion on the ground that “the defendant is

ineligible as he must serve the mandatory minimum,” and denied a motion for

reconsideration. This appeal followed.

II. Analysis

As a general matter, we review a decision whether to reduce a sentence

under § 3582(c)(2) for abuse of discretion. United States v. Cooley, — F.3d —,

2009 WL 4642610, at *1 (5th Cir. Dec. 9, 2009). However, we review the district

court’s interpretation of the guidelines and sentencing statutes de novo. Id.;

United States v. Salazar, 542 F.3d 139, 144 (5th Cir. 2008). Here the question

is whether the district court correctly concluded that Carter is ineligible for a

sentence reduction under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, in light

of the statutory minimum sentence imposed by 21 U.S.C. § 841(b)(1)(A). We

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conclude that under these provisions, Carter is not eligible for the reduction. 

Title 18 U.S.C. § 3582(c) prohibits district courts from “modify[ing] a term

of imprisonment once it has been imposed,” but § 3582(c)(2) provides an

exception for a sentence based on a sentencing range that the Sentencing

Commission subsequently lowers:

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[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. 

The applicable policy statement is U.S.S.G. § 1B1.10. In Carter’s case there is

no dispute that the applicable guideline range was 87 to 108 months, and that

the crack cocaine amendments lowered that range. The question is whether

Carter’s sentence was “based on” that range for purposes of the statute.

The Fourth Circuit has considered this question in comparable

circumstances and concluded that, when a defendant’s crime triggers a statutory

minimum sentence exceeding his guideline range, the resulting sentence is

“based on” the statutory minimum, not the guideline range. See United States

v. Hood, 556 F.3d 226, 233 (4th Cir.), cert. denied, 130 S. Ct. 321 (2009). Hood

considered the sentences of two defendants in remarkably similar circumstances

to Carter. Both were sentenced for crack cocaine trafficking based on mandatory

minimum sentences under 21 U.S.C. § 841(b)(1)(A), but received downward

departures for substantial assistance to the government under 18 U.S.C. §

3553(e). Id. at 228. They later requested proportionate reductions in their

sentences to reflect the impact the crack cocaine amendments would have had

on their guideline range calculations. Id. The court concluded that 

[T]he defendants’ sentences in these appeals were “based on” the

statutorily mandated minimum sentence, not “based on a

sentencing range” lowered by Amendment 706, and were reduced by

the district court under 18 U.S.C. § 3553(e) only for each defendant’s

substantial assistance to the government, not because of the

application of any “guideline range” lowered by Amendment 706.

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 The rigidity of statutory sentencing rules stands in contrast to the advisory nature 3

of guideline sentencing ranges under United States v. Booker, 543 U.S. 220 (2005).

5

Id. The court accordingly concluded the defendants were not entitled to a

sentence reduction under 18 U.S.C. § 3582(c)(2), and affirmed the denial of the

defendants’ motions for sentence reduction. Id. at 237–38. Two other circuits

have reached essentially the same conclusion under similar circumstances. See

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

Williams, 549 F.3d 1337, 1341–42 (11th Cir. 2008). 

We find the Fourth Circuit’s analysis persuasive as applied to Carter. The

phrase “based on a sentencing range” straightforwardly aligns with the familiar

sentencing practice of initially calculating a base range and then considering

grounds for departing from it. In contrast to that typical situation, when an

applicable statutory minimum sentence is greater than the high end of the

guideline range, that minimum—not the otherwise applicable guideline range—

is the starting point for sentencing. See U.S.S.G. § 5G1.1(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.”). Indeed, the district court lacks authority to impose a

sentence below the statutory minimum absent a statutory exception. See United 3

States v. Phillips, 382 F.3d 489, 499 (5th Cir. 2004) (“[A] district court may

impose a sentence of imprisonment below a statutory minimum for a drug crime

only if: (1) the Government makes a motion pursuant to 18 U.S.C. § 3553(e)

asserting the defendant’s substantial assistance to the Government; or (2) the

defendant meets the ‘safety valve’ criteria set forth in 18 U.S.C. § 3553(f).”).

There is no dispute that Carter was subject to a statutory minimum sentence

greater than the high end of his guideline calculation, whether calculated with

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 In this situation where a statutory minimum applies and can only be modified based 4

on statutory exceptions, 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. The applicable statutes and Sentencing

Commission policy statements do not authorize this approach, see Hood, 556 F.3d at 234–35,

and we will not consider a sentence to be “based on” informal or erroneous considerations. For

this reason among others, we are unpersuaded by Carter’s citation to the Sixth Circuit’s

unpublished opinion in United States v. Rickett, 52 F.3d 327, 1995 WL 234665 (6th Cir. 1995).

See id. at *3, *2 (concluding that sentence was “based on an application of the sentencing

guidelines,” because the district court had considered the guidelines in the course of

calculating a sentence based on a downward departure from a statutory minimum).

Furthermore, to the extent that our very brief unpublished opinion in United States v.

Morales, 160 F. App’x 340 (5th Cir. 2005) (per curiam), contradicts our analysis on this point,

we disapprove of its reasoning. See id. at *340–41 (finding Booker error not harmless in

sentence based on a downward departure from a statutory minimum, because the district

court appeared to have relied on the otherwise applicable guideline range, and it “might have

selected” a lower sentence if enhancements based on judicial fact-finding had not been

included in that range).

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or without the crack cocaine amendments. In this circumstance, the sentence

was “based on” the statutory minimum, not the guideline range.4

The application of a downward departure under 18 U.S.C.§ 3553(e) does

not alter this analysis. Section 3553(e) provides:

Upon motion of the Government, the court shall have the authority

to impose a sentence below a level established by statute as a

minimum sentence so as to reflect a defendant’s substantial

assistance in the investigation or prosecution of another person who

has committed an offense. Such sentence shall be imposed in

accordance with the guidelines and policy statements issued by the

Sentencing Commission pursuant to section 994 of title 28, United

States Code.

Carter proposes that when the district court granted the government’s motion

for a reduced sentence under § 3553(e), the statutory minimum sentence no

longer applied. Thus, he argues that the district court should have applied “the

guidelines and policy statements issued by the Sentencing Commission,” which

Carter interprets to refer to the otherwise applicable guideline range. We do not

agree with this interpretation of § 3553(e). 

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Nothing in § 3553(e) indicates that a statutory minimum sentence gives

way to an otherwise applicable guideline range when a district court reduces the

sentence based on the defendant’s substantial assistance to the government.

Rather, § 3553(e) describes the familiar procedure of a downward departure from

a baseline sentence. The Sentencing Commission has indicated that the

applicable policy statement for § 3553(e) is U.S.S.G. § 5K1.1, which is the

general provision governing downward departures from the guidelines. See

§ 5K1.1, Commentary 1. Section 5K1.1 provides that “[u]pon motion of the

government stating that the defendant has provided substantial assistance . . .

the court may depart from the guidelines” (emphasis added). Accordingly, the

Commission implicitly considers a statutory minimum sentence to be analogous

to a low-end guideline from which the court may depart. That is the

interpretation we give to § 3553(e) as well. Accord Hood, 556 F.3d at 235

(“§ 3553 allows for a departure from, not the removal of, a statutorily required

minimum sentence.” (citing United States v. Pillow, 191 F.3d 403, 407 (4th Cir.

1999)); Williams, 549 F.3d at 1341. Furthermore, inasmuch as the statutory

minimum remains the baseline sentence from which the court may downwardly

depart, we do not agree with Carter that the phrase “in accordance with the

guidelines and policy statements issued by the Sentencing Commission” refers

to ordinary guideline ranges. Instead, we interpret it to refer to such guidelines

and policy statements as the Commission may create specifically to implement

§ 3553(e). As noted in Hood, 556 F.3d at 235, the applicable policy statement is

the downward departure provision of U.S.S.G. § 5K1.1, which states principles

for determining whether and how far to downwardly depart; the sentencing

commission has not created any further “sentencing ranges” for such downward

departures.

Nor are we persuaded that U.S.S.G. § 1B1.10—the policy statement

providing guidance for reduction of sentences under § 3582(c)(2)—supports a

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reduction of sentence. Whereas § 3582(c)(2) allows modification only of

sentences “based on” amended sentencing ranges, Carter notes that under

§ 1B1.10(a)(1), a reduction may be appropriate if “the guideline range applicable

to [the] defendant has subsequently been lowered as a result of [certain

amendments].” (emphasis added); see also § 1B1.10(a)(2) (“A reduction . . . is not

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

defendant’s applicable guideline range.”) (emphasis added). Carter argues that

the 87 to 108 month range is “the guideline range applicable” in his case, even

though a statutory minimum guideline sentence superseded that range. Cf.

U.S.S.G. § 5G1.1(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.” (emphasis added)).

We reject this argument because we conclude that the term “guideline

range applicable” in § 1B1.10 includes a statutory minimum sentence when such

a minimum applies. We have noted above that U.S.S.G. § 5K1.1 uses the phrase

“depart from the guidelines” to describe downward departures from both

ordinary guideline ranges and statutory minimum sentences. Similarly, we

agree with the Eleventh Circuit that for purposes of determining eligibility for

a sentence reduction, the statutory-minimum “guideline sentence” becomes the

applicable “guideline range”:

The term “guideline range” reflects the scope of sentences available

to the district court, which could be limited by a statutorily imposed

mandatory minimum “guideline sentence.” Accordingly, when a

mandatory minimum exceeds some portion of the range for the base

offense level, the applicable “guideline range” would be from that

minimum to the upper end of the original guideline range. See

[United States v. Pope, 58 F.3d 1567, 1568 n.1 (11th Cir. 1995)]

(noting that “because of the statutorily mandated minimum of ten

years, Pope’s guidelines range became 120 to 121 months”). For

those situations in which the mandatory minimum exceeds the

range for the entire offense level, the “guideline sentence” would

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thus be the same as the “guideline range,” even if it involves a

“range” of only one number.

Williams, 549 F.3d at 1340–41; accord Byers, 561 F.3d at 831. Accordingly, the

“guideline range applicable” refers to the statutory minimum sentence, and a

subsequent amendment to a different provision (the unutilized guideline range

calculation) does not provide grounds for a sentence reduction.

 This interpretation finds further support in the Application Note to

§ 1B1.10(a)(1), which makes clear beyond peradventure that in the view of the

Commission, a party in Carter’s position is not entitled to a sentence reduction

under § 3582(c)(2):

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. Accordingly, a reduction in the

defendant’s term of imprisonment is not authorized under 18 U.S.C.

3582(c)(2) and is not consistent with this policy statement if: (i)

None of the amendments listed in subsection (c) is applicable to the

defendant; or (ii) an amendment listed in subsection (c) 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).

We are bound to treat this commentary as “authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a plainly erroneous

reading of, [the] guideline.” United States v. Johnston, 559 F.3d 292, 295 n.4

(5th Cir. 2009) (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)). Under

that standard, the Application Note controls. Carter has, at most, identified an

ambiguity or inconsistency in the Sentencing Commission’s use of the adjective

“applicable.” That is not enough to overcome the Sentencing Commission’s

clearly expressed interpretation of § 1B1.10(a)(1), which is consistent with our

interpretation of 18 U.S.C. § 3582(c)(2).

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III. Conclusion

In light of the analysis above, we join the Fourth, Eighth, and Eleventh

Circuits and hold that when a defendant is subject to a statutory minimum

sentence above the upper end of his guideline range, even if the district court

departs downwardly from that minimum under a statutory exception, 18 U.S.C.

§ 3582(c)(2) provides no authority to the district court to later modify the

sentence based on amendments to the guideline range. The ruling of the district

court denying Carter’s motion for reduction of sentence is accordingly

AFFIRMED.

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