NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0490n.06 No. 12-3924 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. DWAYNE A. M OODY, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E NORTHERN DISTRICT OF OHIO O P I N I O N

BEFORE: DA UG HTREY, ROGERS, and McK EAGU E, Circuit Judges. McK EAGU E, Circuit Judge. Dway ne A. Moody appea ls the district court’s order finding him ineligible for

a sente nce reduc tion unde r 18 U.S.C. § 3582(c) (2). He pled g uilty to a coca inerela ted offe nse and was sentenc ed to 71 months in prison. Unfortuna tely for Moody , he is ineligible for a sentenc e re duction, so we a ffirm. I. Background I n 2008, Moody pled g uilty to conspirac y to possess with intent to distribute 123.9 g rams of

coca ine powder and 127.3 g rams of cra ck coca ine in violation of 21 U.S.C. 841(a) (1) and (b)( 1)(A) (2008). Due to the amount of cr ac k , h e wa s subject to a mandatory minimum sentenc e of 120 months. S

ee i d

. § 841(b)( 1)(A) (iii). At his sentenc ing hear ing, the district court, after appare ntly deter mining that the appropr iate base offe nse level was 30, applied a 3-leve l downwar d adjustment fo r acc eptanc e of responsibility and awa rded a 3-leve l downwar d depar ture pursuant to theNo. 12-3924

USA v. M oody g overnme nt’s sub s t an t i al assistance motion broug ht under U.S.S.G. § 5K1.1. The resulting total offe nse leve l was 24, which when combined with Moody ’s criminal history cate g ory of I I y ielded

a g uideline rang e of 57 to 71 months. Moody was sentenc ed to 71 months in pr ison. Although he

was subject to a 120-month mandatory minimum sentenc e, the g overnme nt’s substantial assistance motion was appar ently

intended to authorize the c ourt to depar t from the minimum. 1
I n 2010, Congr ess enac ted the Fa ir Sentencing Act, which in cr ea s ed the amount of cra ck neede d to trig g er mandatory minimum sentenc es. See 124 Stat. 2372 (2010). I n acc ordanc e with instructions in the Act, the Sentencing Commi ssion passed Amendment 750 to the S en t en cing Guidelines, which reduc ed th e b ase offe nse levels for cra ck coca ine offe nses. Amendment 759 made the cha ng es in Amendment 750 re troac tive. I n 2012, Moody filed a motion reque sting a sentenc e reduc tion in light of the amen ded Guidelines. The judge who sentenc ed Moody h av ing assumed senior status, Moody ’s case was assig ned to a differ ent judge

. That judge denied the motion, finding that Moody was ineligible for

a re duction beca

use he w as subject to a ma ndatory minimum sentenc e. Moody appea led.

Tec hnically , § 5K1.1 only allows the court t o d ep art from the g uideline rang e; 18 U.S.C. 1 § 3553(e) authorizes the court to depar t from the mandatory minimum

. Mele ndez v. United States , 518 U.S. 120, 124 (1996). Although the statutory provision was never mentioned at the sentenc ing hear ing, it appea

rs t h e go v er n ment intended to authorize the court to depar t from the mandatory minimum

. See id. at 126 n.5 (stating that “an express ref ere nce to § 3553(e ) i s not nece ssarily require d b efore a court may depar t below the statutory minimum ” as long as the g overnme nt “in some way indicate[s] its desire or c onsent that the cour t depar t below the statutory

minimum ”). - 2 -No. 12-3924

USA v. M oody II. Analysi s A. Eligib ility f

or a Re duction We revie w de novo a district court’s conclusion that a defe ndant is ineligible for a sentenc e reduc tion. United States v. Mc Clain , 691 F.3d 774, 777 ( 6th Cir. 2012). A district court g ener ally cannot modify a sentenc e of i mprisonment once it has been imposed. See 18 U.S.C. § 3582(c) ; Dillon v. United States , 130 S. Ct. 2683, 2690 (2010). Howeve r, there is an exception to the g ener al rule “in the case of a defe ndant who has been sentenc ed to a term of imprisonment based on a sentenc ing rang e that has subsequently been lowere d by the Sentencing C o m mission

. . . if such a reduc tion is consistent with applicable policy statements issu ed b y t h e Sentencing Commi ssion.” 18 U.S.C. § 3582(c) (2). I n short, to deter mine whether Moody is elig ible for a sentenc e reduc tion we must answe r two questions: (1) was his sentenc e “base d on” a sentenc ing
rang e that has bee n lowere d by Amendment 750; and ( 2) would a sentenc e reduc tion c omply with the applica

ble policy statements? We answer

the first question “y es” but the se cond “no.” 1. “based on” inqui ry To asce rtain whether a sentenc e was “base d on” a sentenc ing range t hat was subsequently lowere d, we are bound by United St ates v. Hameed , 614 F.3d 259 (6th Cir. 2010), which require s

us to “look t o what the district court actually said and did at the orig inal sentenc ing” to determine “whe ther the orig inal sentenc e was, in fact , based on such a rang e.” See i d

. at 2 6 4 (quotations omitted). Her e, the district court exclusively discussed the g uideline rang e, and it never mentioned the mandatory minimum sentenc e. Amendment 750 reduc ed Moody ’s g uideline rang e from 57-71

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USA v. M oody months to 46-57 months. Clearly , then, Moody ’s sentenc e was “base d on” a sentenc ing rang e that was subseque ntly

lowere d. 2. policy stateme nt inquiry But even though Moody ’s s e n te nce was “base d on” a sentenc ing rang e that was subsequently lowere d, a sentenc e reduc tion must still comply with t h e Sentencing Commi ssion’s policy

s t atements. One applicable policy statement say s that a sentenc e reduc tion is not allowed if t h e rele vant amendment “does not have the eff ect of lowering the defe ndant’s a p p l i cable guideline
range .” See U.S.S.G. § 1B1.10(a )(2) (b) ( emphasis added)

. The Guide lines provide that “[w]here

a st at u t o ri ly require d minimum sentenc e is g rea ter than the maxi mum of the applicable g uideline
rang e, the statutorily require d minimum sentenc e shall be the g uideline sentenc e.” § 5G1.1(b). We have repe atedly said that “whe re a mandatory minimum sentenc e applies that exceeds the otherwise applicable g uideline rang e, the mandatory m inimum sentenc e become s the applicable g uideline
rang e.” United St ates v. W illiams , No. 12-3353, 2013 W L 331579, at *5 (6th Cir. J an. 30, 2013);

see also McClain , 691 F.3d at 779-80 (“The Sentencing Commi ssion’s policy statements expli citly provide that the mandatory minimum become s a defenda nt’s applicable rang e.”) ; United St ates v. Johnson , 564 F.3d 419, 423 (6th Cir. 2009) (“Where a mandatory minimum sentenc e excee ds the otherwise applicable Guidelines rang e . . . it repla ces that Guidelines rang e.”) ; cf. Hamee d , 614 F.3d
at 268 (“[T]he g uideline rang e resulting from [t he] base offe nse level was not ‘applica ble’ beca use it was not the corr ect point from whic h the depa rture should ha ve bee n measure d.”). Since the 120-month mandatory minimum sentenc e was g rea ter than the g uideline rang e, the mandatory minimum beca me the “applicable g uideline rang e” for purposes of U.S.S.G.

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USA v. M oody § 1B1.10( a)( 2)(B ). The Sentencing Commi ssion, of course , has no po we r t o reduc e a mandatory minimum sentenc e set by Congr ess, and Amendment 750 has no eff ect on the mandatory minimum for Moody ’s crime. There fore , Mood y i s i n el igible for a sentenc e reduc tion under § 3582(c) (2) beca use a reduc tion would be inconsistent with an applica ble policy statement. Fur

thermore , the 2
Fa i r Sentencing Act does not apply retroa ctively to reduc e the mandatory minimum for Moody ’s crime beca

use he was sentenc ed befor e the Act’s eff ective date. See United States v. Hammond , 712 F.3d 333, 336 ( 6th Cir. 2013) (per curia m). Of course , this analy sis lik el y p ro vides littl e consolation to Moody , g iven that the district
court neve r mentioned the mandatory minimum sentenc e during his sentenc ing hear ing, and it

cer tainly must have appea

red to him that the mandatory minimum play ed no role in his sentenc e. I n fac t, the district court made two major mistakes while sentenc ing Moody

. After deter mining the
gu i d el i ne rang e based on Moody ’s total offe nse level, his criminal history cate g ory , and h i s

a s s is ta n c e to th e g overnme nt, the court should have rec og nized that beca use the mandatory minimum

was g rea ter than the top of that g uideline rang e, it nece ssarily beca me the new g uideline rang e. See

After briefing wa s compl ete, Moody sent us a letter contending that a rec ent case from a 2 sister circ uit found defe ndants elig ible for a reduc tion on “the exact same fac ts” as his case prese nts. See United States v. W

ren , 706 F.3d 861 (7th Cir. 2013). But Moody has igno re d a cr u cial distinction betwee n his case and W ren . The orig inal g uideline rang es of the defe ndants in W ren wer e greater that the applicable mandatory minimum

. See id. at 862. There fore , in W ren the mandatory minimum did not become the “applicable guideline rang e,” and the def endants we re e ligible f

or a sentenc e reduc tion. See id. at 864. The Seventh Circuit expli citly rec og nized that defe ndants whose orig inal g uideline rang es wer e lower than the mandatory minimum are not elig ible for a reduc tion. See id. ; see also W

illiams , 2013 WL 331579 at * 6

. I f Moody ’s original guideline rang e had been g rea ter than the m andator y minimu m , h e too might be elig ible for a reduc tion. But it wasn’t, and he isn’t. - 5 -No. 12-3924

USA v. M oody U.S.S.G. §§ 1B1.1( a)( 8); 5G1.1(b). I f appropr iate, the court should then have depar ted downwar d from the mandatory minimum under 18 U .S.C. § 3353(e). See United States v. Stewart , 306 F.3d 295, 332 (6th Cir. 2002)

. When de termining the extent of the depar ture, the court should not have been influence d by Moody ’s acc eptanc e of responsibility but ins te a d s h o u ld have based the depar ture solely upon the value of Moody ’s assistance to the g overnme nt. See United States v. Bullard , 390 F.3d 413, 416 (6th Cir. 2004); see also United State v. W illiams , 687 F.3d 283, 286 (6th Cir. 2012). Be cause the district court ignor ed the mandatory minimum and g rante d a 3-leve l downwar d adjustment for Moody ’s acc eptanc e of responsibility , Moody actua lly benef itted from these err ors. Most importantly , these err ors do not chang e the fac t that the mandatory minimum was still leg ally the “a pplicable g uideline ra

ng e,” a nd Moody

is acc ording ly

ineligible f

or a r eduction. Moody points out that since the mandatory minimum was never mentioned at his sentenc ing hear ing, it was not entirely acc urate for the district c ourt to say in its order deny ing his motion for
a sente nce r eduction that “[ Moody ’s] g uideline rang e was deter mined pursuant to 5G1.1(b) of the U. S

. S

. G. ,” which provides that when a mandatory minimum exceeds the g uideline rang e the mandatory minimum become s the g uideline sentenc e. Moody arg ues that the g uidelines are advisory , the district court chose not to apply § 5G1.1(b), a

nd there fore it cannot be a pplied now. For support, he points to the rule that in de termining whether a defe ndant is e ligible for a sentenc e reduc tion, the court can only “dete rm i n e t he amende d g uideline rang e that would have been applicable ” and “shal l l eave all other g uideline application decisions unaff ecte d.” U.S.S.G. § 1B1.10( b)(1)

. He maintains that it is im p ro p er fo r u s now to apply § 5G1.1(b) when it was appar ently

not applied during his origina l sentencing

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USA v. M oody But the district c ourt’s fa ilure to invoke § 5G1.1(b) w hile sentenc ing Moody

is irreleva

nt. A mandatory minimum sentence i s most assure dly not advisory , even if the g uideline provision direc ting the court to apply it is. See Dorsey v. United States , 132 S. Ct. 2321, 2327 (2012) (stating that fede ral sent encing statutes “trump[] the Guidelines”)

. Under the statute in eff ect at the time, Moody was subject to a m an d at o ry minimum sentenc e which beca me his “applica

ble g uideline
rang e” by opera tion of law, and no mist ak e b y t h e district court can alter this rea lity

. Moody has alre ady benef

itted once from the district court’s sentenc ing err ors. To g rant him a sentenc e reduc tion now would ena

ble him to benefit twice from those same err ors. B. Fac tual Errors Finally , Moody arg ues that we should rema nd this case since in its order deny ing his motion for a sentenc e reduc tion the district court made sever al fac tual misstatements

. Both parties rec og nize that fac tual misstatements were made, pr imarily beca use Moody

made them in his motion a nd the
g overnme nt repe ated them in its response . But co rr ec t i n g these misstatements would not rende r Moody elig ible for a

sentenc e re duction, so a re mand would be pointless.

III. Conclusi on Be caus e Moody ’s “applica ble g uideline rang e” was the mandatory minimum , it was not reduc ed by Amendment 750, and the district court was corr ect to find him ineligible for a sentenc e reduc tion. W e ther efor e AF F IRM the district court’s or der.

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