1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0163p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellant ,

v

.

J OE E DWARD W EBB , Defendant-Appellee

. ┐ │ │ │ │ │ │ │ ┘ Nos. 13-5697/5700

Appeal from the United St ates District Court for the Middle District of Tennessee at Nashville. Nos. 3:09-cr-00044-1; 3:10-cr-00015-1—Aleta Arthur Trauger, District Judge. Argued: January 22, 2014 Decided and Filed: July 28, 2014 Before: CLAY and DONALD, Circuit Judges; MAYS, District Judge. *

_________________ COUNSEL

ARGUED: Harold B. McDonough, Jr ., UNITED STATES ATTORNEY ’S OFFICE, Nashville, Tennessee, for Appellant. Mi chael C. Holley, FEDERAL PU BLIC DEFENDER’S OFFICE, Nashville, Tennessee, for Appellee. ON BRIEF: Harold B. McDonough, Jr., UNITED STATES ATTORNEY’S OFFICE, Nashville, Te nnessee, for Appellant. Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for Appellee.
CLAY, J., delivered the opinion of the cour t, in which MAYS, D.J., joined. DONALD, J. (pp. 13–16), delivered a separate dissenting opinion.

* The Honorable Samuel H. Mays, Jr., United States Dist rict Judge for the Western District of Tennessee, sitting by designation. 

### >Nos. 13-5697/5700 United States v. Webb Page 2

_________________ OPINION

_________________ CLAY, Circuit Judge. Defendant Joe Edward Webb pleaded guilty to drug offenses in two different cases. Based on his status as a car eer offender and a belief that the career offender guideline range was excessive and improper in this case, the dist rict court sentenced Defendant to the pre-Fair Sentencing Act (“FSA”), Pub. L. No. 111–220, 124 St at. 2372 (2010), crack cocaine mandatory minimum sentence of 240 months imprisonment. Defendant later filed a motion under 18 U.S.C. § 3582(c)(2) for retroa ctive application of the new Sentencing Guidelines in effect after passage of the FSA . The district court found that Defendant was entitled to seek a reduction of his sentence and subsequently resentenced Defendant to 188 months for each count in the first case a nd for the second case. The government now appeals the district court’s resentencing, claiming that the district court lacked the authority to reduce Defendant’s sentence pursuant to § 3582(c)(2).
For the reasons that follow, we REVERSE the district court’s order and REMAND with instructions to reinstate the initial sentence.

I.

BACKGROUND
A. Charges and Plea Agreement
Defendant was charged in two different cas es for various drug-related offenses. On February 25, 2009, Defendant was charged in the first case with seventeen counts, including charges of conspiracy to distribute and possess with intent to distribute fifty grams or more of a mixture and substance containing a detectable amount of cocaine base and conspiracy to distribute and possess with intent to distribute a quantity of a mixture an d substance containing a detectable amount of cocaine, bo th in violation of 21 U.S.C. §§ 841(a)(1) and 846, as well as additional counts related to cocaine possession and distribution. On January 14, 2010, Defendant was charged in a second case with attempt to possess and distribute 500 grams or more ofNos. 13-5697/5700 United States v. Webb Page 3

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The government f iled an information for both cases, recommending an enhancement for a prior drug conviction. The following day, Defendant entered guilty pleas in the first case for the first two counts charging him with conspiracy to distribute and po ssess with intent to distribute 50 grams or more of cocaine base and conspiracy to distribute and possess with intent to distribute cocaine and in the second case for attempt to possess with intent to distribute 50 0 grams or more of cocain e, all in violation of 21 U.S.C. §§ 841(a)(1) and 846. Defendant acknow ledged in his plea agreement that he would face a mandatory minimum sentence of twenty years as to the fi rst count and a minimum of ten years under the information in the second case. At the time, Defendant agreed to provide substantial assistance to the government, and the government agreed to file a motion for downward departure in the event that Defe ndant fulfilled his promise to cooperate. See U.S.S.G. § 5K1.1; 18 U.S.C. § 3553(e).
B. Initial Sentencing Hearing
The sentencing hearing, which was orig inally scheduled for April 12, 2010, was continued a number of times until January 3, 2011. Before the heari ng actually occurred, Congress passed the FSA, which raised the am ount of cocaine required for triggering the mandatory minimum sentence for crack cocaine offenses from 5 grams to 28 grams and from 50 grams to 280 grams. Pub. L. No. 111–220, 124 St at. 2372. Additionally, Congress directed the Sentencing Commission to lower the accompa nying offense levels for quantities of cocaine base.
In preparation for the sentencing heari ng, the government filed a notice on December 28, 2010, explaining that Defendant had violated the plea agreement by fa iling to provid e substantial assistance as originally promised. Therefore, in this notice, the government indicated that it would not file a motion for a downward departure due to Defendant’s failure to comply with the terms of the guilty plea.
The probation office prepared a final presen tence report (“PSR”), which considered the lowered offense level under the FSA. The PSR determined that the total offense level was 36, the criminal history level was IV, and the re sulting sentencing range was 188 to 235 months. However, based on Defendant’s two previous crim inal convictions for robbery and sale of aNos. 13-5697/5700 United States v. Webb Page 4

controlled substance, the probati on office stated in the final PSR that Defendant qualified as a career offender as defined in U.S.S.G. § 4B 1.1, and as a result, his offense level was 37. 1 The PSR then adjusted the level to 34 for accepta nce of responsibility pursuant to U.S.S.G. §§ 3E1.1(a), (b). Ultimately, the probation office recommended a total offense level of 34 and a criminal history category of VI, yieldi ng a sentencing range of 262 to 327 months.
During the sentencing hearing, the district court reviewed the PSR and found that the guideline range was, in fact, 262 to 327 months, stating as follows: I am going to accept the Pre-sentence Report as my findings of fact on all issues and on the application of the Guidelines. Mr. Webb qualifies under the Advisory Gu ideline system as a Career Offender, therefore his Offense Level is a 34. His Criminal Histor y Category is VI. The resulting Guideline Range is 262 to 327 months. (R. 87, 1/3/2011 Partial Tr. of Sentencing Hr’g, at 259–60.) 2 Shortly thereafter, the district court again stated that “[t]he Guideline range here . . . is 262 to 327 months.” ( Id . at 261.) However, the district court also found that the career o ffender guideline range was ex cessive and stated the following: But given Mr. Webb’s relatively young age, th e fact that one of the offenses that made him a Career Offender was committed when he was 14, and that he was at the Taft facility, apparently until he was 18 -- so he was off on a bad path before then. And then I am sure did nothing but learn more ways to commit crimes during the four years that he was incarce rated as a teenager, an impressionable teenager. I feel that the minimum-mandatory of 20 years is plenty of time. I see really no difference in the effect upon Mr . Webb or on reflecting the seriousness of the offense or promoting respect for the law or being a just punishment or protecting the public from fu rther crimes by giving him a sentence of 240 months as opposed to a sentence [of] 280 mont hs. What difference does it make? Twenty years is a long time, and I f eel the minimum-mandatory twenty years

1 The first of these qualifying offenses occurred when Defendant was fourteen years old and he took part in a robbery that resulted in serious injuri es to a store clerk who was hit over the head with an iron bar or pipe. Defendant was tried as an adult for that offense and was sentenced to four years in the Taft Youth Development Center. The second offense was a felony conviction for the sale of less than ha lf of a gram of cocaine. Defendant did not serve prison time for that conviction.

2 Citations to the record are accompanied by reference to Page ID numbers.Nos. 13-5697/5700 United States v. Webb Page 5

concurrent on these offenses is suffici ent to meet all of the purposes of sentencing. So that is my sentence. ( Id . at 263–64.) As a result, the district court varied the sent ence downward to the pre-FSA mandatory minimum for a crack cocaine offens e—from a range of 262 to 327 months to 240 months. 3 The district court issued its judgment on January 6, 2011.
C. Resentencing
On July 19, 2012, Defendant filed a pro se motion pursuant to § 3582(c)(2) to obtain retroactive application of the new Sentencing Guidelines for crack cocaine offenses. The probation office prepared a suppleme nt to the PSR, and the district court directed the government to file a response to the supplement. The government filed responses in opposition to the motion, and the district court a ppointed a federal public defender to represent Defendant in the matter. Through counsel, Defendant filed supp lemental motions for relief under § 3582(c)(2), and the government once agai n filed its responses.

The district court found that Defendant was entitled to seek a re duction on Count One of the first case because the court did not base Defendant’s sentence on the career offender guidelines. The court stated as follows: As the sentencing hearing transcript makes clear, this court rejected the Career Offender guideline range of 262 to 327 months and, instead, sentenced the defendant to the statutory minimum mandatory term for the crack cocaine charge of 240 months. . . . [T]hat minimum ma ndatory has been reduced by the Fair Sentencing Act to 120 months from 240 mont hs. . . . [A]bsent the Career Offender enhancements, it is clear that the sentencing range would be lower. (R. 92, Mem. and Order, at 356–57 (internal citation omitted).) However, at that time, the court found that Defendant was not eligible for a senten ce reduction for the sec ond count in the first case or for the second case because those charge s did not involve crack cocaine and instead concerned powder cocaine, sentence s to which the FSA did not apply. 4 In a separate order, the district court requested that th e probation office recalculate the offense level under the FSA. The

3 Although the sentencing hearing occu rred after the FSA was enacted on Au gust 3, 2010, the district court applied the pre-FSA mandatory minimum sentence.

4 Contradicting this original order, the district court later reduced Defendant’s sentences on all three counts.Nos. 13-5697/5700 United States v. Webb Page 6

probation office’s supplemental PSR accounted for the FSA’s new mandatory minimum sentence for the crack cocaine offense, which was reduced from twenty years to ten years.
At the resentencing hearing held on Ap ril 11, 2013, the district court resentenced Defendant for both counts in the fi rst case and for the second case. The district court discussed the rationale fo r resentencing: [A]lthough . . . I asked the probation office to do the calculati ons for me without the career offender enhancement, the rang e with the career enhancement is the proper place to start because Mr. Webb does qualify as a career offender, and so the starting point is an offense level of 34 and a criminal history category of VI, which leaves us with the same range we had at the first sentencing, which is 262 to 327 months. In that sentencing, for all the factors I elucidated, and I’ll go over some of them now, I found that fo r this particular defendant, the career offender guideline -- first of all, career offender applying for these two offenses that pushed him into that category, ther e were mitigating circumstances, and since that time we have had this Sentencing Commission report come out criticizing the career offender guideline, and I decided to sentence the defendant to the minimum mandatory, ignoring the career offender e nhancement to his guideline range for a lot of different reasons. (R. 106, 4/11/2013 Tr. of Resentencing Hr’g, at 459.) Therefore, the di strict court based resentencing on the FSA and th e Sentencing Commission’s amendments to the crack cocaine guidelines. The district court replaced the previous sentences with a 188-month prison term for each count in the first case and for the sec ond case. Each of the sentences would run concurrently and would be followed by a period of supervised release.
The government objected to the reduced sent ences as procedurally and substantively unreasonable and filed a timely notice of appeal in each of the cases.

II.

DISCUSSION

A. Standard of Review
Generally, “[a] motion for modification made under 18 U.S.C. § 3582(c)(2) is reviewed for an abuse of discretion.” United States v. Carter , 500 F.3d 486, 490 (6th Cir. 2007). “A district court abuses its discretion when it relies on clearly erroneous findings of fact, applies theNos. 13-5697/5700 United States v. Webb Page 7

law improperly, or uses an er roneous legal standard.” United States v. Pembrook , 609 F.3d 381, 383 (6th Cir. 2010). When applying an abuse of discretion standar d, “[t]his Court should reverse the district court’s decision only if it is ‘firmly convinced that a mistake has been made.’” United States v. Moore , 582 F.3d 641, 644 (6th Cir. 2009) (quoting McCombs v. Meijer, Inc. , 395 F.3d 346, 358 (6th Cir. 2005)).
However, “[w]e review the district court’s de termination of the defendant’s eligibility for a sentence reduction de novo .” United States v. Smith , 658 F.3d 608, 611 (6th Cir. 2011). See also United States v. Johnson , 569 F.3d 619, 623 (6th Cir. 2009) (“Wh ere . . . the district court does not simply decline to use its authority under § 3582(c)(2) bu t instead rules that it has no authority to reduce the defendant’s sentence under the statute, the di strict court’s conclusion . . . is reviewed de novo.”). In that situation, “[t]he question becomes whether the district court lacked authority to modify the defendant’s sentence,” which is a question of law. United States v. Payton , 617 F.3d 911, 913 (6th Cir. 2010). See also United States v. Baylor , 556 F.3d 672, 673 (8th Cir. 2009) (“Whether the district cour t properly determined it had the authority to modify a sentence under 18 U.S.C. § 3582(c)(2) is a legal question reviewed de novo”); United States v. Rhodes , 549 F.3d 833, 837 (10th Cir. 2008) (“The scope of a district c ourt’s authority in a resentencing proceeding under § 3582(c)(2) is a question of law that we review de novo”); United States v. Caraballo , 552 F.3d 6, 9 (1st Cir. 2008) (“ [T]his case requires us to determine . . . whether the district court had au thority to act under section 3582(c)(2). That is purely a question of statutory interpretation . . . [which] engenders de novo review.”). Therefore, this Court applies de novo review to determine whether the di strict court had authority under § 3582(c)(2) to reduce Defendant’s sentence.
B. Sentence Reductions Under 18 U.S.C. § 3582(c)(2)
As this Court has repeat edly acknowledged, “[g]enerally speaking, once a court has imposed a sentence, it does not have the authority to change or modify th at sentence unless such authority is expressly granted by statute.” United States v. Curry , 606 F.3d 323, 326 (6th Cir. 2010); see also United States v. Thompson , 714 F.3d 946, 948 (6th Cir. 2013). Section 3582(c)(2) provides such a stat utory exception. Under § 3582(c )(2), a court may reduce a defendant’s prison sent ence if the defendantNos. 13-5697/5700 United States v. Webb Page 8

has been sentenced to a term of impr isonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . after considering the factors set forth in secti on 3553(a) to the extent that they are applicable, if such a reduc tion is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Therefore, the statute “ does not authorize a sentencing or resentencing proceeding.” Dillon v. United States , 560 U.S. 817, 825 (2010). Instead, the statute grants district courts the authority to reduce “an othe rwise final sentence in circumstances specified by the Commission.” Id

. A district court follows two steps when determining whether a sentence reduction is appropriate. First, the district court determines the defendant’s eligibility for a sentence reduction. Thompson , 714 F.3d at 948. A defendant must meet two conditions to be eligible for resentencing: “(1) the defendant [must] ha[ve] been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission; and (2) such reduction [must be] consistent with applicable policy statements issued by the Sentencing Commission.” United States v. Riley , 726 F.3d 756, 758 (6th Cir. 2013) (internal quotation marks omitted). Next, if the court determines that the defendant is eligible for a sentence reduction, “[t]he court may then ‘c onsider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a).’” Thompson , 714 F.3d at 949 (quoting Dillon , 560 U.S. at 826).

C. Defendant’s Sentence was Not “Based On” a Sentencing Range Subsequently Lowered by the Sentencing Commission To qualify for a sentence reduction under § 3582(c)(2), Defendant must have been sentenced under a sentencing range that wa s subsequently lowered by the Sentencing Commission. “In determining whether a sentence was based on a subsequently lowered guideline range in a plain-meaning sense of the words, we must consider whether the original sentence was, in fact , based on such a range . . . .” United States v. Hameed , 614 F.3d 259, 264 (6th Cir. 2010) (internal quotation marks omitte d). “To ask whether a particular term of imprisonment is ‘based on’ a Guidelines sentenci ng range is to ask whether that range serves as the basis or foundation for the term of imprisonment.” Freeman v. United States , 131 S. Ct. 2685, 2695 (2011) (Sotomayor, J., concurring); see also Thompson , 714 F.3d at 949 (recognizingNos. 13-5697/5700 United States v. Webb Page 9

that Justice Sotomayor’s concurrence is the na rrowest, and therefore c ontrolling, opinion in
Freeman ). To make this determination, this Court “look[s] to ‘what the di strict court actually said and did at the original sentencing.’” Hameed , 614 F.3d at 264 (quoting United States v. Hargrove , 628 F. Supp. 2d 241, 244 (D. Mass. 2009)).
Although the parties disagree as to the applicability of Freeman and the appropriate approach to “based on,” it is irre levant in this case. Regardless of which standard applies, the district court did not refer to the crack cocai ne guidelines during the sentencing hearing and therefore did not base the sentence on the crack co caine sentencing guidelines . The district court explained in its Memorandum and Order dated February 14, 2013, that “[a]s the sentencing hearing transcript makes clear, this court rejected the Career Offender guideline range of 262 to 327 months and, instead, sentenced the defendant to the statutor y minimum mandatory term for the crack cocaine charge of 240 mo nths.” (R. 92, Mem. and Order, at 356–57.) What the district court appears to have done at th e sentencing hearing was find th at the career offender guidelines were applicable, disagreed with their applicatio n to this defendant, and varied downward to the pre-FSA crack cocaine mandatory minimum, w ithout making reference to the crack cocaine guidelines or the disparity between crack and powder cocaine sentencing.
The career offender guidelines were not subsequently lowered, and therefore, § 3582(c)(2) cannot apply to provide a sentence reduction for Defendant. See Thompson , 714 F.3d at 949–50 (holding that where the distri ct court varied downward from the career offender guidelines without making reference to th e crack/powder disparity or the crack cocaine sentencing guidelines, the sentence was still “bas ed on” the career offender guidelines, not some other guidelines that were subsequently reduced by the Sentencing Commission); United States
v. Scott , 523 F. App’x 370, 371 (6th Cir. 2013).
Even if Defendant’s sentence was impr operly “based on” the pre-FSA mandatory minimum for crack cocaine, this is still insufficient to give the district court authority to grant the resentencing motion under § 3582(c)(2). Alth ough Defendant was sentenced after the FSA’s enactment and therefore the new mandatory minimums were already in effect, “the Sixth Circuit has held that a defendant who is sentenced by reference to a stat utory minimum, rather than the Sentencing Guidelines governing crack cocaine offenses, cannot appeal to the retroactiveNos. 13-5697/5700 United States v. Webb Page 10

amendments to the crack coca ine guidelines as a basis fo r relief under § 3582(c)(2).” United States v. Redding , No. 04–80057, 2013 WL 3745890, at *1 (E.D . Mich. July 16, 2013) (citing United States v. McPherson , 629 F.3d 609, 611–12 (6th Cir. 2011)). As the en banc Court explained in United States v. Blewett , § 3582(c)(2) “applies only to sentencing ranges decreased by the Sentencing Commission in accordance with § 994(o). In the Fair Sentencing Act, Congress, not the Sentencing Commission, lowered these mandatory minimum criminal penalties.” 746 F.3d 647, 656 (6th Cir. 2013) (internal quotation marks omitted). 5 Therefore, even if Defendant’s sentence was based on the pre-FSA crack cocaine mandatory minimums, Defendant is ineligible for a sentence reducti on under § 3582(c)(2 ) because his sentence was not “based on” a sentencing range that was subsequently lowered.

D. No Amendment to the Guidelines had the Effect of Lowering the “Applicable Guideline Range” During the resentencing hear ing and in its Memorandum and Order, the district court stated that it based Defendant’s sentence on th e crack cocaine guideline range, despite never making such a statement during the initial sent encing hearing. This Court does not generally consider a district court’s post-sentencing clarif ication of a defendant’s sentence when making the “based on” determination. Instead, this Court considers “what the distri ct court actually said and did at the orig inal sentencing.” Hameed , 614 F.3d at 264 (internal quotation marks omitted). However, even assuming that Defendant’s ultimate sentence was “based on” the crack cocaine guideline range in § 2D1.1, the se ntence must also be consiste nt with applic able policy statements issued by the Sentencing Commission. See Dillon , 560 U.S. at 819. The policy statement contained in § 1B 1.10(a)(2) states as follows: A reduction in the defendant’s term of impr isonment is not consistent with this policy statement and therefore is not au thorized under 18 U.S.C. § 3582(c)(2) if— (A) none of the amendments lis ted in subsection (c) is applicable to the defendant; or

5 See also United States v. Collins , 520 F. App’x 434, 436 (6th Cir. 2013) (“[Section] 3582(c)(2), by its own terms, applies only to guidelines amendments and not to statutory penalty changes”); United States v. Coats , 530 F. App’x 553, 555 (6th Cir. 2013) (i nternal quotation marks omitted) (“ Because the Sentencing Commission’s amendments to the crack cocaine guidelines have no effect on statutory minimum sentences mandated by Congress, Coats’s sentence was not based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”).Nos. 13-5697/5700 United States v. Webb Page 11

(B) an amendment listed in subsection (c) does not have the effect of lowering th e defendant’s applicable guideline range. U.S.S.G. § 1B1.10(a)(2). A defendant’s “appli cable guideline range” is not necessarily the sentencing range upon which his sentence was “bas ed” under the first prong of the § 3582(c)(2) analysis. Rather, the Guidelines commentary defines “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 varian ce.” U.S.S.G. § 1B1.10 cmt. n.1(A); see also United States v. Pembrook , 609 F.3d at 384 (finding that “applicable guideline rang e” means a “defendant’s pre-departure guideline range”). 6 Therefore, if a district court varies downward from the initially calculated sentencing range to some other range, the ultimate sentence may be “based on” the latter range, but the “applicab le guideline range” remains the original pre-departure range.
In this case, Defendant’s “applicable guide line range” was and is the guideline range pursuant to § 1B1.10(a), “which is determined before consideration of any departure . . . or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A). Be fore the district court varied downward, Defendant’s applicable guideline range was his career offender range of 262 to 327 months. The district court acknowledged durin g the resentencing hearing that “the range with the career enhancement is the proper place to start because [Defendant] does qualify as a career offender.” (R. 106, 4/11/2013 Tr. of Resentencing Hr’g, at 459 (emphasis added).) Even assuming that Defendant’s ultimate sentence was “based on” the crack cocaine guideline in § 2D1.1, he qualified as a career offender and his “applicable guideline range” has not changed. The retroactive amendments to the Sentencing Guid elines changed the drug quantity tables in § 2D1.1, but they made no changes to th e career offender provision in § 4B1.1. See United States v.Tillman , 511 F. App’x 519, 521 (6th Cir. 2013) (e xplaining that “[a] defendant whose

6 Defendant asserts that Application Note 1(A) is in valid because it was not enact ed pursuant to proper procedure and notice under the Administrative Procedure Act (“APA”). Defendant is unable to cite any authority adopting this position, and every circuit to consider the APA argument has upheld the Note’s validity. See, e.g., United States v. Johnson , 703 F.3d 464, 467–69 (8th Cir. 2013); United States v. Berberena , 694 F.3d 514, 526–27 (3d Cir. 2012); United States v. Horn , 679 F.3d 397, 406–07 (6th Cir. 2012); United States v. Fox , 631 F.3d 1128, 1132 (9th Cir. 2011). Additionally, this Court reject s Defendant’s argument that the Application Note is inconsistent with § 3582(c)(2). Rather than conflicting wi th the statutory language, the Note explains the meaning of the statute’s terms.Nos. 13-5697/5700 United States v. Webb Page 12

sentence is based upon the career offender senten cing guideline cannot be nefit from Amendment 750 because that amendment did not lower the career offender sentencing guidelines range”); United States v. Reeves , 717 F.3d 647, 650 (8th Cir. 2013) (“ Because Reeves was sentenced under the career offender provision, Amendm ents 750 and 759, which modified the drug quantity provision, are irrelevant.”).
Defendant’s applicable guideline range is th e career offender range of 262 to 327 months. Because that range has not been lowered by any amendments to the Guidelines, a reduction in Defendant’s sentence fails to meet the second prong of the eligibility determination under § 3582(c)(2).

III.

CONCLUSION
The district court erred by finding it ha d the authority under § 3582(c)(2) to reduce Defendant’s sentence. The original sentence was not based on a sentencing range that was subsequently reduced and no amendment to th e Guidelines had the effect of lowering Defendant’s “applicable guideline range.” Therefore, because the district court lacked authority to grant Defendant’s motion for resentencing, we REVERSE the district court’s order and REMAND with instructions to reinstate the initial sentence.Nos. 13-5697/5700 United States v. Webb Page 13

_________________ DISSENT

_________________ BERNICE B. DONALD, Circui t Judge, dissenting. In Ja nuary 2010, Joe Edward Webb pleaded guilty to one count of attempted possessi on with intent to distribute and two counts of conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 846. In his plea agreement, Webb acknowledged that his entr y of a guilty plea on the count charging him with conspiracy to distribute fifty grams of cocai ne base (“crack-cocaine”) would subject him to a mandatory-minimum sentence of twenty years’ imprisonment. (R. 51, Pg ID # 83-84). The plea agreement also indicated, however, that Webb had entered into a cooperation agreement whereby the Government would file a motion for a below-minimum sentence of 180 months under 18 U.S.C. § 3553(e) in exchange for Webb’s substantial assistance. (R. 20, Pg ID # 95- 96).
In the months that followed, the Governme nt sought several continuances to delay Webb’s sentencing hearing (R. 52-67). After having delayed Webb’s se ntencing hearing for almost a year, the Government ultimately notifie d the district court, in December 2010, that it would not file a motion for a downward departure in Webb’s case after all, as he had failed to provide substantial a ssistance. (R. 68).
Meanwhile, in the period between Webb’s entry of the guilty plea and his sentencing hearing, Congress passed the Fair Sentencing Act (“FSA”), which amended the framework for mandatory-minimum sentences in crack-cocai ne cases. Pub. L. No. 111-220, 124 Stat. 2372. 1 Under the new statutory framework promulgate d by the FSA, Webb’s conviction yielded a lesser mandatory-minimum sentence of ten years’ impris onment, rather than the twenty-year minimum referenced in the plea agreement. (R. 92, Pg ID # 356-57).

1 Webb entered his guilty plea on January 15, 2010, and was scheduled to be sentenced on April 12, 2010. Due to several continuances, however, Webb’s sentencing hearing did not take place until nearly a year after the entry of his guilty plea, on January 3, 2011. In the inte rim, Congress passed the FSA, which was signed into law on August 3, 2010.Nos. 13-5697/5700 United States v. Webb Page 14

After the passage of the FSA, a circuit sp lit emerged as to whether defendants like Webb—whose convictions stemmed from conduct pr ior to its passage but who were sentenced after the FSA’s enactment—should be nefit from its more lenient mandatory minimums. At the time of Webb’s sentencing hearing, in January 2011, the prevailing case la w in this Circuit, established by United States v. Carradine , 621 F.3d 575, 580 (6th Cir. 2010), held that defendants like Webb should be sentenced in accor dance with the mandatory minimums in effect at the time of the offense, irresp ective of the FSA’s enactment.
The Supreme Court eventually resolved the post-FSA circuit split and abrogated Carradine in Dorsey v. United States , 132 S. Ct. 2321 (2012), by holding that the more lenient penalties in the FSA applied to all defe ndants sentenced after its effective date. Id. at 2326; see also United States v. Hogg , 723 F.3d 730, 732 (6th Cir. 2013) (explaining that Dorsey abrogated Carradine by holding that all defendant s sentenced after the FSA’s pa ssage were entitled to “the ‘new, more lenient’ statutory penalties . . . fo r crack cocaine offenses [even if the relevant offense conduct predated its enactment].”). Because the Supreme Cour t had yet to decide Dorsey when Webb was sentenced, however , the district court was bound by Carradine , which required it to apply the pre-FSA minimum in his case. Wh en the district court declined to apply the career-offender guidelines recomm ended in Webb’s PSR, it therefor e reverted to the pre-FSA mandatory-minimum penalty of twenty years’ imp risonment, rather than applying the post-FSA minimum of ten years, as Dorsey would later require.
Based on the foregoing, Webb filed a motion for a sentence reduction under 18 U.S.C § 3582, arguing that he was entitled to a lower sentence in light of Dorsey . (R. 85). The district court granted the motion and resentenced Webb to 180 months. The Government appealed the district court’s order, arguing th at it lacked authority to grant Webb’s motion for a sentence reduction under 18 U.S.C § 3582(c)(2) because We bb’s previous sentence was not based on a guidelines range that had “subsequently b een lowered by the Sent encing Commission.”
As the majority correctly observes, the distri ct court’s determinati on as to whether Webb was eligible for a sentence reduction under 18 U.S.C § 3582 is a question of law that this Court reviews de novo. I agree with the majority’s over view of the relevant inquiry in determining whether any particular de fendant is entitled to resentencing unde r that statute and I agree with itsNos. 13-5697/5700 United States v. Webb Page 15

conclusion that Webb is not entitled to relief th ereunder, because his sentence was not based on a guidelines range that has since been amended. I disagree with the majority’s conclusion, however, that Webb’s sentence was based on the car eer-offender guidelines. The district court expressly declined to adopt the PSR’s recomme ndation that Webb be sentenced in accordance with the career-offender guidelines because Webb was only fourteen when he committed one of the offenses that triggered his career-off ender status. Having rejected the PSR’s recommendation under the career-offender guidelines, the district court th en sentenced Webb to the pre-FSA mandatory-minimum.
Because Webb was sentenced to a pre-FSA mandatory minimum after the statute’s enactment, he is clearly entitle d to a sentence reduction under Dorsey . His motion for a sentence reduction under 18 U.S.C § 3582, however, is not th e proper procedural vehi cle for seeking that relief, since that statute only applies to individuals who were sentenced under the guidelines. See United States v. Passmore , 503 F. App'x 340, 342 (6th Cir. 2012) (explaining that 18 U.S.C § 3582 does not apply to individua ls who were sentenced in accordance with statutory minimums), cert. denied , 133 S. Ct. 968 (2013). Where a defendant’s claim of entitlement to a reduced sentence is based on a new retroactive deci sion of the Suprem e Court, the proper procedural vehicle for seeking a sentence reduction is a motion under 28 U.S.C. § 2255. See id. Therefore, because Webb’s eligibility for a lo wer sentence is based on the Supreme Court’s decision in Dorsey , 28 U.S.C. § 2255 is the proper avenue for obtaining the relief he seeks.

In other cases where inmates have filed a motion under 18 U.S.C. § 3582 that should have been filed under 28 U.S.C. § 2255, district c ourts have construed such motions liberally as § 2255 motions. See Hughlett v. United States , No. 1:13 Civ. 204, 1:10 Cr. 84 (E.D. Tenn. Oct. 22, 2013) (denying relief pursuant to Dorsey under § 3582(c)(2) but granting motion under § 2255); accord United States v. Little , No. 10-20170 (E.D. Mich. Oct. 29, 2013); see also United States v. Bennett , No. 3:10 Cr. 84 (W.D.N.C. Jan. 16, 2013). Due to the potential consequences of treating any motion as a § 2255 motion (because it may foreclose the availability of relief on other issu es under § 2255 in the future), th e district court is in a much better position to determine whether taking a liberal view of We bb’s § 3582 motion is appropriate in this case. Accordingly, I would REMAND to the district court so that it mayNos. 13-5697/5700 United States v. Webb Page 16

determine whether Webb’s motion for a senten ce reduction should be construed as a motion under § 2255. I would further instru ct the district court to perm it Webb to re-file his current motion under § 2255, based on his eligibility for relief under Dorsey

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