NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0381n.06 Case No. 12- 3042 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. BENJAMIN WHERRY, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITED STAT ES DIS TRICT COURT F OR THE NORT HERN DISTRICT OF OHIO

BEFORE: BATCHELDER, Chief Judge; MERRITT and KETHLEDGE, Circ uit Jud ges. ALICE M. BATCHEL DER, Chief Judge. Be njamin Wherry was convicted in 1997 under 21 U.S.C. § 841(b)( 1)(A) of possession with intent to distribute coca ine base, and under 18 U.S.C. § 922(g )(1) of being a felon in possession of a firea rm. He was sentenc ed as a car eer offe nder to 235 months’ incar cer ation. The distric t co u rt denied his 18 U.S.C. § 3582(c) (2) motion for

rec onsideration of his sentenc e under the new cr ack coca ine sentenc ing g uidelines enac ted under Amendment 750 to the Sentencing Guidelines, holding that beca use Wherry was senten ce d as a

car eer offe nder and not under the cra ck coca ine g uidelines he is not elig ible for rec onsideration under § 3582(c) (2). We AF FI RM. I. I n 1997, Wherry ’s conviction for possession with intent to distribute 65.15 g rams of coca ine base in violation of 21 U.S.C. § 841(b)( 1)(A) would ordinarily have be en assig ned a ba se off ense level of 32 under U.S.S.G. § 2D1.1(c )(4) , with a two-leve l incre ase under 2D1.1(b)( 1) for possessionN o . 1 2

- 3 0 4 2 , U n i t e d S t a t e s v . W h e r r y of a firea rm, resulting in an adjusted o ff en s e l ev el of 34. Wherry ’s offe nse car ried a statutory minimum sentenc e of 10 y ear s’ incar cer ati o n an d a statutory maxi mum term of life. 21 U.S.C. § 841(b)( 1)(A)

. Be cause of prior offe nses, howev er , W h erry was not sentenc ed under U.S.S.G. § 2D1.1; rathe r, he was s entenc ed as a care er offende r under U.S.S.G. § 4B1.1. Pursuant to § 4B1.1( b)(1) , the fac t that the statutory maxi mum for the offe nse was life meant that Wherry ’s offe nse level under § 4 B1.1 was 37 rathe r than 34. But the trial court g rante d a 3-leve l reduc tion for acc eptanc e of responsibility , reduc ing his offe nse level from 37 back to 34. This reduc tion was g rante d afte r a jury trial and conviction, and was not rec ommended in the pre- sentenc ing repor t. The reduc tion was reque sted and g ranted in this case beca use of what the court labeled “unique” and “ra re” circ umstances: Wherry had been on pretria l rele ase for about a y ear and his Pretrial Service s Offic er had rec ommended that the court take into acc ount his exemplary behavior during that time, and the

car eer offe nder provision meant that in calc ulating the g uideline sentenc e, the court had to beg in at an off ense le vel of 37. Wherry ’s car eer criminal status also meant that he had a criminal history cate g ory of VI

. But the court g rante d a one-le vel criminal-history cate g ory depar ture, to adjust for what it saw as an overrepr esenta tion of criminal history , there by reduc ing his criminal history cate g ory from VI to V. [ Id

. at 13-16.] These depar

tures resulted in a g uideline rang e of 235 to 293 months, and the court sentenc ed Wherry to 235 months. The court, opera ting under then-manda tory sentenc ing g uidelines, noted that the sentenc e re quired he re w as “pa rticularly harsh.” 2N o . 1 2

- 3 0 4 2 , U n i t e d S t a t e s v . W h e r r y
I n 2008, Wherry filed a motion for modification of h i s s entence under 18 U.S.C. § 3582(c) (2), seeking rec onsideration under the n e w c r a c k c o c a in e s e n te n c in g g u id e li n e s enac ted under Amendment 706 to the Sentencing Guidelines, which reduc ed the sentenc ing rang es for cra ck

coca ine offe nses listed in U.S.S.G. § 2D1.1. Affir ming the district court, this court held that Wherry

was “not elig ible for modification under § 3582(c) (2) beca use the application of any amendment to U.S.S.G. § 2D1.1 would not result in the lowering of his applicable g uideline rang e” since Wherry

was sentenc ed as a car eer offe nder. United States v. W herry , No. 10-3895 (6th Cir. May 10, 2011) (citing United States v. W illiams , 607 F.3d 1123, 1125-26 (6th Cir. 2010); United States v. Perdue , 572 F.3d 288, 292- 93 (6th Cir. 2009)). Wherry has now broug ht another § 3582(c) (2) motion, this one under Sentencing Guidelines Amendment 750, which also alters the cra ck coca ine sentenc ing rang es. I n a succinc t order , the district court denie d the motion: This Court previously deter mined that Def

endant’ s sentenc e was imposed based on the car eer -off

ender provisions found at U.S.S.G. § 4B1.1. Amendment 750 does not ap ply to sentenc es imposed under U.S.S.G. § 4B1.1. Caree r offe nders, l i k e Def endant, are t h er ef

o re not elig ible for a reduc tion in sentenc e under 18 U.S.C. § 3582(c) (2). Wherry appea ls. II. We revie w a mo t i o n t o m o d ify a sentenc e under 18 U.S.C. § 3582(c) (2) for abuse of discretion. See Perdue , 572 F.3d at 290. Howeve r, when a district court rules that it has no authority to revisit the sentenc e under 18 U.S.C. § 3582(c)(2) , we r eview tha t question of law de novo. See United States v. J

ohnson, 569 F.3d 619, 623 ( 6th Cir. 2009). 3N o . 1 2

- 3 0 4 2 , U n i t e d S t a t e s v . W h e r r y
18 U.S.C. § 3582(c) (2) authorizes a district court to rec onsider a defe ndant’s sentenc e when (1) the de fenda

nt “has be en sente nced to a term of imprisonment base d on a sente ncing rang e that has subsequently been lowere d by the Sentencing Commi ssion pursuant to 28 U.S.C. 994( o ),” and (2) “such a reduc tion is consistent with app l i ca ble policy statements issued by the Sentencing Commi ssion.” 18 U.S.C. § 3582(c) (2); see also United States v. McClain , 691 F.3d 774, 777 (6th Cir. 2012); United States v. Pembrook , 609 F.3d 381, 383 (6th Cir. 2010)

. The “ applicable policy statement” rele vant here is U.S.S.G. § 1B1.10, “Reduc tion in Term of I mprisonment as a Result of Amended G uideline Rang e (Policy Statement),” w hich re ads, in pertinent pa rt: (a) Authority .-- (1 ) I n Gene ral.-- I n a case in which a defe ndant is serving a t er m o f imprisonment, and the g uideline rang e applicab le to that defe ndant has subsequently been lowere d as a re s u l t of an amendment to the Guidelines Manual listed in subsection (c) below, the c ourt may reduc e the defe ndant' s term of imprisonment as provide d by 18 U.S.C. 3582(c) (2). As require d by 18 U.S.C. 3582(c) (2), any such reduction in the defe ndant' s term of imprisonment shall be consistent with this pol icy statement. (2) Ex clusions.--A reduc tion in the defe ndant' s term of imprisonment is not consistent with this policy statement and there fore is not authorized under 18 U.S.C. 3582(c)(2) if

S (A) None of the amendments listed in subse ction (c) is applicable to the def endant; or (B ) An amendment listed in subsection (c) does not have the eff ect of lowering the def

endant' s applicable g uideline ra ng e. (b) De termination of Reduc tion in Term of I mprisonment.-- (1) I n Gene ral.-- I n deter

mining whether , and to what extent, a re d u ct ion in the d ef en dant' s term of imprisonment under 18 U.S.C. 3582(c) (2) and this policy stat em en t is war rante d, the court shall deter mine the amende d g uideline rang e that would have been applicable t o t h e defe ndant if the amendment( s) to the g uidelines listed in subsection (c) had been in eff ect at 4N o . 1 2

- 3 0 4 2 , U n i t e d S t a t e s v . W h e r r y the time the defe ndant was sentenc ed. I n making such deter min at i o n , the court shall substitut e only the amendments listed in subsect i on (c) for the corr esponding g uideline pro v is io n s th a t w e r e applied when the defe ndant was sentenc ed and sha ll le a

v e all other g uideline application decisions unaff ecte d. (c) Covered Amendments.-- Amendments cover ed by this policy statement are listed in Appendix C as follows: 126, 130, 156 , 1 76, 269, 329, 341, 371, 379, 380, 433, 454, 461, 484, 488, 490, 499, 505, 506, 516, 591, 599, 60 6 , 657, 702, 706 as amende d by

711, 715, and 750 (pa

rts A and C only

). So, a reduc tion is not consistent with Sentencing Commi ssion policy statements and thus is
not authorized if none of the “cove red amendments” listed in U.S.S.G. § 1B1.10( c) is applicable to the defe ndant; or a “cove red amendment” does not “have the eff ect of lowering the d ef

en d an t ’s applicable g uideline rang e.” U.S.S.G. § 1B1.10( a)( 2). I n making this deter mination, “the court shall substitut e only the amendme nts list ed in subsection (c) for the corr esponding g uideline provisions that wer e applied when the defe ndant was sentenc ed and shall leave all other guideline application decisions unaffected .” U.S.S.G. § 1B1.10( b)(1) (empha sis added)

. Finally , the Applications Notes to § 1B1.10( a) explain that a sentenc e reduc tion will not b e consistent with the policy statement wher e an amendment lis ted i n subsection (c), althou gh appli cable to the defendant, does not have “the e ffe ct of lowe ring the def endant’ s applicable g uideline ra ng e” unde r (a )(2) (B ) beca use of the opera

tion of another g uideline or statutory provision (e.g

. a statutory mandatory minimum term of imprisonment) (i.e. the g uide li n e r a n g e th a t c o r r e sponds to the offe nse level and criminal history cate g ory deter mined pursuant to § 1B1.1( a), which is deter

mined befor e consideration of any depar ture provision in the Guideline Manual or a

ny varia nce)

. U.S.S.G. § 1B1.10 comment (n.1( A)). The Fair Sentencing Act of 2010, Pub. L

. No. 111-220, 1 2 4 Stat. 2372 (F SA), was passed
to reduc e the d i s p ar i t y in sentenc ing betwee n cra ck- and powder -coc aine offe nses. Among other 5N o . 1 2

- 3 0 4 2 , U n i t e d S t a t e s v . W h e r r y chang es, the Act altere d the cra ck-to-pow der ratio in 21 U.S.C. § 841(b)( 1)(A) , eff ectively altering the statutory minimum and maxi mum sentence fo r co caine-base offe nses. Id ., § 2. The Act also authorized the Sentencing Commi ssion to make confor ming chang es to the Sentencing Guidelines. Id ., § 8. Part A of Amendment 750 to the Sentencing Guidelines eff ects chang es only to the cra ckcoca ine s entenc ing ta

ble in U.S.S.G. § 2D1.1 and Note 10 of the Commentary

to § 2D1.1. Part C of Amendment 750 involves only U.S.S.G. § 2D2.1. And Amendment 750 (par ts A and C only ) is listed as a cover ed amendment in U.S.S.G. § 1B1.10( c) for purposes of 18 U.S.C. § 3582(c) (2). But Parts A and C of Amendment 750 include only the Sentencing Commi ssion alterations to the
sentenc ing table in U.S.S.G. § 2D1.1; they make no r efe renc e to the F SA’s statutory altera tions to 21 U.S.C. § 841. Wherry advanc es two arg uments supporting the application of 18 U.S.C. § 3582(c) (2) to his
sentenc e. First, the calc ulat i o n o f his offe nse level of 37 under the car eer offe nder provision is depende nt on the crack coca ine s tatute and so his sentenc e i s ar gu ably “base d on” both the caree r offe nder provision and the cra ck coca ine statute. Second, Wherry arg ues that his sentenc e is de fac to based on the cra ck coca ine g uidelines in U.S. S

. G. § 2 D1

. 1 , citing this court’s analy sis in United States v. Jac kson, 678 F.3d 442 ( 2012). Eac h of these a rg uments will be considere d in turn. III. Wherry contends that the offe nse level for car eer offe nders under U.S.S.G. § 4 B1.1 is calc ulated using the statutory maxi mum assig ned to the underly ing offe nse. See U.S.S.G. § 4B1.1

6N o . 1 2

- 3 0 4 2 , U n i t e d S t a t e s v . W h e r r y (b). Precisely

. The court used the s t at u tory maxi mum for the offe nse; it did not use the cra ck 1

coca ine sentenc ing table found in U.S.S.G. § 2D1.1. The st at u t o ry maxi mum for cra ck coca ine 2 offe nses was lowere d by the FSA, but U.S.S.G. Amendment 750 alters only § 2D1.1. Wherry ’s
sentenc e, then, is not “base d on a sentenc ing rang e that has subsequ en t l y b een lowere d by the Sentencing Commi ssion,” and is there fore not a sentenc e the court is authorized to reduc e under 18 U.S.C. § 3582(c) (2). See U.S.S.G. § 1B1.10( a) and (c) ; United States v. Till man , 2013 WL 150112, *2 (6th Cir. J an. 15, 2013) (“A defe n d an t whose sentenc e is based upon the car eer offe nder
sentenc ing g uideline ca

nnot benef

it from Amendment 750 beca use t hat amendment did not lower the car eer offe nder sentenc ing g uidelines rang e.”) ; United States v. Stanley, 2012 WL 4014932, *2 (6th Cir. Sept. 13, 2012) (noting that a sentenc e based on a statutory minimum that had been chang ed by the FSA could not be re visited under § 3582(c)(2) ). Nor does the FSA apply retroa ctively to a defe ndant sentenc ed befor e Aug ust 3, 2010. Dorsey v. United States , 132 S.Ct

. 2321, 2335 (2012). This conclusion is indisti ng uishable from past case s which held that U.S.S.G. Ame ndment 706 does not apply to car eer offe nders beca use a car eer offe nder’ s sentenc e is not based on U.S.S.G. § 2D1.1. See W

illiams , 607 F.3d at 1125 (noting that defe ndant’s sentenc e rema ined unaltere d by Amendment 750 beca

use he was sentenc ed as a car eer offe nder) ; Perdue , 572 F.3d at 292 (“Per due’s
sentenc e was based on . . . § 4B1.1. The alterna tive base offe nse level under § 2D1.1 ultimately did

A s a l r e a d y n o t e d , t h e s t a t u t o r y m a x i m u m f o r t h e a m o u n t o f c o c a i n e b a s e i n t h i s c a s e w a s d e c r e a s e d b y t h e 1 F S A f r o m l i f e t o 4 0 y e a r s . T h u s , u n d e r t h e n e w s t a t u t o r y p r o v i s i o n s W h e r r y ’ s o f f e n s e l e v e l w o u l d h a v e b e e n o n l y 3 4 , i n s t e a d o f 3 7

.

N o r i s a c a r e e r o f

f e n d e r s e n t e n c e “ b a s e d o n ” § 2 D 1

. 1 s i m p l y b e c a u s e t h e g u i d e l i n e s i n s t r u c t a c o u r t t o 2 c o n s i d e r U

. S

. S

. G

. § 2 b e f o r e c o n s i d e r i n g § 4

. T h i s a r g u m e n t h a s b e e n e x p r e s s l y c o n s i d e r e d a n d r e j e c t e d b y t h i s c o u r t

. S e e W i l l i a m s , 6 0 7 F

. 3 d a t 1 1 2 5 n . 1 ; a n d i d

. a t 1 1 2 6 ( M e r r i t t , J

. c o n c u r r i n g )

. 7N o . 1 2

- 3 0 4 2 , U n i t e d S t a t e s v . W h e r r y

not aff ect the calc ulation of the sentenc ing rang e under the car eer offe nder classifica tion.”); United States v. Leasure , 331 F. App’x 370, 378 (6th Cir. 2009); see also Till man , 2013 WL 150112 at *2 (apply ing this series of case s to Amendment 750). As explained above, this court has alre ady found
t h at Wherry was “not elig ible for modification under § 3582(c) (2) beca use the application o f an y amendment to U.S.S.G. § 2D1.1 would not result in the lowering of his applicable g uideline rang e.” W herry , No. 10-3895 (6th Cir. May 10, 2011). This conclusion is not aff ecte d by Freem an v. United States , 131 S. Ct. 2685 (2011).

“ Freem an addre ssed only the first statutory require ment under § 3582, the ‘ba sed on’ c omponent,

as it perta ined to cer

t ai n p lea ag ree ments. I n Dillon , the Supreme Court took a ‘nar row view of proce eding s’ under § 3582(c) (2).

. . .” United States v. McClain, 691 F.3d 774, 779 (6th Cir. 2012) (interna l citations omit ted) (quoting Dillon v. United States , 130 S. Ct . 2683, 2691 (2010))

. IV. I n the alterna tive, Wherry urg es that, beca use his adjusted offe nse level afte r the acc eptanc eof-r esponsibility reduc tion was compar able to the base offe nse level he would have rec eived under § 2D1.1, he wa s de fa cto sentenc ed under § 2D1.1, like the def

endant in United States v. J ackson , 678 F.3d 442 ( 6th Cir. 2012). Jack son is a unique case , punctuated by anomalous fac tual finding s that are not found here

. I n Jack son , the defe ndant had pled g uilty to a cra ck coca ine offe nse in 2009. Id. at 443. The district court waited over a y ear to sentenc e J ackson, ex pressly waiting for new crack c o ca i n e s en t encing g uidelines from Congr ess, but eventua lly imposed the sentenc e befor e those g uidelines wer e passed. Id. At sentenc ing, a lthough noting that the defe ndant qualified as a car eer offe nder, the court “did 8N o . 1 2

- 3 0 4 2 , U n i t e d S t a t e s v . W h e r r y

not apply the ‘ca

ree r offe nder’ g uideline sentenc e” and “re jected the car eer g uideline rang e.” Id

. at 443–444. I nstead, the court g ave the defe ndant a sentenc e “below the advisory g uideline rang e for

a car eer offe nder and within the old a dvisory g uideline rang e for cra ck coca ine violations” such as t h e d efendant’s. Id

. at 443. As this court rea d the rec ord, the district court had chosen t h e alterna tive sentenc e afte r taking into consideration the “cr ack versus powder coca ine disparity ” that the judge believed—a

nd “any rational-thinking person believe[d]”—was “untena ble.” Id. (interna l formatting remove d); see also United States v. W illiams, No. 12-3353, at *10 (6th Cir. J an. 30, 2013) (“This court noted that the district court [i n Jack son ] var i ed d o wn wa rd based on its policy disag ree ment with the g uidelines’ disparity betwee n sentences for cra ck and powder coca ine offe nses. I t ther efor e found that J ackson’ s sentenc e was ‘base d on’ the cra ck coca ine g uidelines. . . .”). Her e, the district court applied rathe r than reje cted the car eer offe nder g uideline, explained that the offense level reduc tion was for acc eptanc e of responsibility , and did not apply the cra ck

coca ine g uidelines. The car eer offe nder provision was mandatory when Wherry was sentenc ed, and

so the district court did not have the option of reje cting it for something else. Thus, unlike Jack son , Wherry ’s sentence wa s b as ed on the car eer offe nder provision and not § 2D1.1. The sentenc ing rang e under that provision was not lowere d by U.S.S.G. Am en d m en t 7 5 0 and Wherry ’s sentenc e may not be re visited. Even if Wherry ’s sentenc e wer e de fac to “base d on” § 2D1.1, i t re mains clea r that his “applica ble g uideline rang e” was taken from § 4B1.1. “The fa ct that [defendant] was sentenc ed below the applicable sentenc ing g uidelines rang e as a result of the district court’s g rant of 9N o . 1 2

- 3 0 4 2 , U n i t e d S t a t e s v . W h e r r y [defendant’ s] reque st for a downwar d varia nce does not alter this result.” Till man , 2013 WL 150112
at *2 (citing Pembrook, 609 F.3d 381, 387 (6th Cir. 2010)). The policy statemen t co m m en t ary define s the “applica

ble g uideline rang e” as the rang e “which is deter mined befor e consideration of any depar ture provision in the Guideline Manual or any varia nce.” U. S .S.G. § 1B1.10, comment (n.1(a )). That is, the “applica ble g uideline ra

ng e” is the pr e-de parture rang e. He re, the applicable g uideline is the offe nse level of 37 and criminal history score of VI derive d from the car eer offe nder provision befor e the court chose to g rant any downwar d depar tu re s . Again, this analy sis is not affec t ed by the Supreme Court’s opinion in Freem an . See McClain, 691 F.3d at 779. Be cause J ackson’ s applicable g uideline rang e is unaltere d by U.S.S.G. Amendment 750, rec onsideration of his sentenc e under 18 U.S.C. § 3582(c) (2) would be contra ry to the U.S.S.G. § 1 B1

. 1 0 policy
statement. V. For the fore g oing r easons, we AF F IRM the judg ment of the district cour t.

10N o . 1 2

- 3 0 4 2 , U n i t e d S t a t e s v . W h e r r y MERRITT, Circuit Judge, dissentin g. Be njamin Wherry , an Afric an-A merica n, like almost all cra ck defe ndants, was eng ag ed in the cra ck coca ine trade in the 1990s and rec eived a 20- y ear fede ral sentenc e, in part beca use of an enhancem en t fo r t wo prior felonies. He will not be el i gi b l e fo r rele ase from prison until 2017, unless we allow the lower court to consider him for rele ase under the n ew Fa ir Sentencing Act of 2010, and it s g uidelines, which subst antially reduc e

cra ck coca ine sentenc es. The new Act was adopted by Congr ess afte r considering testimony of many witnesses and repor

ts that the old cra ck coca ine sentenc ing sy stem that reig ned for 25 y ear s was g rossly discriminatory ag ainst Afric an-A merica ns. For example, among many others, the Chairman of the Senate J udiciary Commi ttee that repo rted out the new Act said that the Act was adopted beca use the old sy stem was “one of the most notorious sy mbols of rac ial discrimination in th e modern criminal justice sy stem.” 156 Cong. Rec. S.1683 (Da ily ed. Marc h 17, 2010). The Supreme Court a lso ha s said in this connection that the new law was adopted “bec ause the public had come to underst an d t h at sentenc es embody ing the 100-to-1 ratio as ref lecting unjustif

ied race- based difference s .” Do r s ey v. United States , 132 S. Ct. 2321, 2328 (2010) (empha sis added)

. As my colleag ues say in their opinion, the trial court itself said at Wherry ’s sentenc ing in 1997 that the court had no choice under the sentenc ing g uidelines; it had to sentenc e Wherry to this “par ticularly harsh”
sentenc e. I n spite of the acknow ledg ed rac ial discrimination underly i n g t h e cr ack sentenc ing sch em e, o u r co urt can find no way to reme dy the unfairne ss. I t simply perpe tuates the wrong by doing nothing . I think that the wrong can e asily be cor rec ted. First, the majority ’s arg um en t that Wherry ’s sentenc e is not “base d on” the cra ck coca ine
sentenc ing table found in § 2D1.1 defie s common sense and ignor es the rea sons Wherry was befor e 11N o . 1 2

- 3 0 4 2 , U n i t e d S t a t e s v . W h e r r y

a sentenc ing judge in the first place . The majority wants to dispe nse with the initial ca lculation of the offe nse based on Wherry ’s criminal history and amount of cra ck coca ine possessed and instead jump stra ight awa

y to the car eer offe nder g uidelines. For the majority , whether

Mr. Wherry had 6 g rams or 65 g rams of cra ck is now inco n s eq u en t i al. Wherry was not punished for being a

rec idivist—he was punished for possessing cra ck coca ine with intent to distribute, then punished additionally

for be ing a recidivist. The care er offende r provisi ons do not simply trump the rest of the sentenc ing sc heme. The majority ’s formalistic rea ding ignor es the very basis of USSG § 4B1.1. USSG § 4B1.1 is not independe nt of § 2D1.1. The car eer offe nder section of the g uidelines simply serve to enhanc e the punishment of an offe nder due to his criminal history , not to repla ce the punishment for dealing

cra ck-c ocaine

. We must first look to that initial calc ulation — 32. The next step require s us to look at the punishment associa ted with that number — 10 y ear s to life. The car eer offe nder pr ovisions require us to look to the statutory maxi mum a person fac es to deter mine the offe nse level. The only way to cal cu l at e t hat statutory maxi mum is to look at the amount of drug s associate d with the conviction. I n other words, without deter mining the quantity of cra ck coca ine, there is no statutory maxi mum and without knowing t h e s t atutory maxi mum, one cannot apply the car eer offe nder g uidelines. These numbers are inext rica bly intertwined. Wherry ’s sentenc e is “base d on” the cra ckcoca ine g uidelines, which have now been lowere d by the Fa ir Sentencing Act and Amendment 750. The fir st prong of § 3582(c )(2) has bee n met. The majority ’s arg ument as t o the s econd prong of § 3582(c) (2) is equally flawe d beca use they base their rea soning, not on the lang uag e of the policy statement, but rathe r on their judicially 12N o . 1 2

- 3 0 4 2 , U n i t e d S t a t e s v . W h e r r y

constructe d rule that s ay s n o cr ac k defe ndant can g et a reduc tion if he rec eives a car eer criminal enhanc ement. There is no statut e o r gu i d el i n e that say s that a defe ndant’s sentenc e may not be re duced under the new Act beca

use he had two prior felonies that labeled him a “ca ree r” criminal in the cra ck trade

. Wherry rec eived his 2 0 -y ea r s entence beca use of a combination of the old quantitative g uideline provisions for sellin g 6 5 gra m s o f cra ck and for having two prior felonies. There is no provision in any law any

wher e that specific ally say s that such a long, discriminatory cra ck sentenc e may not be reduc ed simply beca use of a “ca

ree r” criminal enhanc ement. My colleag ues have quoted

no such law to this eff

ect. We are not require d to so rule. A judicially -construc ted rule such as the majority proposes serve s to pe rpetua te the old r acia lly discriminatory policy that Congr ess tried to chang e in the Fair S entenc ing Act of 2010. Now t h o u s an d s o f African- Americ an defenda nts like Wherry must rema in in fede ral prisons for y ear s without the intended redr ess. There is no purpose

or policy b eh i n d s u ch a judicially constructe d rule, and my colleag ues do not attempt to offe r a

rea soned justification. They just repe at the rule that, willy -nilly , a car eer criminal enhanc ement, for

some unknown policy rea son, eliminates the possibili ty of a reduc tion a nd serve s to perpe tuate the

rac ial discrimination acknow ledg ed in the new re m ed i al s tatute. Under the new statute, desig ned it say s in the prea

mble, to “re store justice,” Wherry would have rec eived a g uideline sentenc e with the same enhanc ements of fourtee n y ear s rathe r than twenty , making him elig ible for rele ase two y ear s ag o. Why keep him in prison now for four more y ear s? I t makes no sense, prese rving injusti ce instead of “ restoring justice.”

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