NOT RECOMMENDED FOR PUBLICATION File Name: 16a0387n.06 No. 15
- 2376 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff

- Appellant ,

v. JOSHUA THEO SMITH, Defendant

- Appellee

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: McKEAGUE and GRIFFIN , Circuit Judges ; and BERTELSMAN, District Judge. *
GRIFFIN , Circuit Judge

. The government appeals an order of the district court granting defendant Josh ua Smith a modified sentence. Previously, S mith pleaded guilty to conspiring to distribute cocaine and cocaine base and was sentenced to 96 months’ imprisonment. Three years later, he m oved for a modification pursuant to 18 U.S.C. § 3582(c)(2 ) . The district court granted Smith’s motion , reducing his sentence to 80 month s

— a term less than the minimum of his amended G uideline
range. Because the Sentencing Guidelines prohibit such a r eduction, we vacat e the district court’s modified sentence and remand for reinstatement of Smith’s original sentence.

* The Honorable William O. Bertelsman, Senior Judge, United States District Court for the Eastern District of Kentucky, sitting by designation.No. 15

- 2376 , United States v. Smith

- 2

- I. In October 2011, Smith pleaded guilty to one count of conspiracy to distribute 500 grams of cocaine and 50 or more grams of cocaine b ase in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1) and 846. A probation officer prepared a presentence report (PSR) for Smith using the November 1, 2011 , edition of the Guidelines Manual. 1 The PSR found defendant responsible for 174.439 grams of cocaine base and 819.799 grams of powder cocaine, corresponding to an initial base offense level of 28. 2 To offense level 28, the PSR added a two

- level leadership enhancement and a three

- level acceptance of responsibility reduction, see U.S.S.G. §§ 3B1.1 and 3E1.1, for a final base offense level of 27. With a criminal history category of IV, defendant’s resulting Guidelines range was 100 to 125 months’ imprisonment. In January 2012, the parties appeared before the distri ct court for sentencing. There , the court explained that its calculation of defendant’s base offense level and Guidelines range was “somewhat different from the calculation by the probation officer”: I calculated the offense level based on a one

- to

- one powder to crack cocaine ratio, le ading to an offense level of 25, the Criminal History Category remains at 4, but the advisory guidelines range for incarceration drops to 84 to 105 months . . . .

1 Unless otherwise noted, all citations are taken from that same edition. See 18 U.S.C. § 3553(a)(4)(A)( ii) (courts shall consider the G uidelines “in effect on the date the defendant is sentenced”)

.

2 T his initial fi gur e was dictated in part by U.S.S.G. § 2D1.1 cmt. 10(D)(i) (e ff. Nov. 1, 2008), which directs the probation officer to reduce a defendant’s offense level by two “if the offense involves cocaine base (‘crack’) and one or more other controlled substance.” As the government notes, however, the Sentencing Commission eliminated comment 10(D)(i) effective November 1, 2010

. See U.S. Sentencing Guidelines Manual Supplem ent, Introduction (e ff. Nov. 1, 2010). But for this erroneous mixed

- drugs reduction, Smith woul d have started with a base offense level of 30.No. 15

- 2376 , United States v. Smith

- 3

-

A one

- to

- one ratio treats one gram of crack cocaine the same as one gram of powder cocaine, eliminating the sentencing disparity between the substances. See, e.g. , United States v. Lewis , 623 F. Supp. 2d 42, 47

– 48 (D.D.C. 2009 ) (demonstrating a one

- to

- one ratio). Thus, instead of calculating a sentencing range for 174.439 grams of crack cocaine and 819.799 grams of powder cocaine, the district court took the total amount of drugs Smith conspired to distribute

— 994.238
grams

— and calculated the Guidelines ra nge as if it were all powder cocaine. Under the 2011 Guidelines, 994.238 grams of powder cocaine corresponds to a base offense level of 26, see U.S.S.G. § 2D1.1(c)(7), which the district court reduced to 25 to account for the PSR’s leadership enhancement and acceptance of responsibility reduction. Offense level 25 and criminal history category of IV led the court to an 84

- to

- 105 month range. 3 Counsel for the government “object[ed] to the imposition of the one

- to

- one ratio,” but acknowledged the court’s “discretion to disagree with the policy of the guidelines.” Using a final offense level of 25 and a Guidelines range of 84 to 105 months, the district court proceeded to allocution and sentenced defendant to 96 m onths’ imprisonment. In January 2015, def

endant moved for a modified sentence “pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the United States Sentencing Gui delines.” In response to the motion, the district court requested a sen tence modification report (SMR) explaining whether Amendme nt 782 had the effect of lowering defendant’s original Guidelines range, thereby qualifying him for a potential reduction. In the SMR, the probation officer recited Smith’s “Original Guideline Calculation as Determined by the Court at Sentencing,”

— includ ing the “ 1:1 powder cocaine to crack cocaine

3 Because the district court’s analysis assumed defendant conspired to distribute only powder cocaine, it di d not include the PSR’s erroneous mixed

- drug reduction.No. 15

- 2376 , United States v. Smith

- 4

-

ratio ” which, after the appropriate adjustments, yielded a final base offense level of 25 and a corresponding Guidelines range of 84 to 105 months’ imprisonment. Next, she determined defendant’s post

- Amendment 782 Guidelines range. Again here, the probation officer carried over the one

- to

- one ratio the district court adopted at Smith’s sentencing: “

At the time of sentencing the Court used a 1:1 powder cocaine to crack cocaine ratio, which reduced the offense level to 26. At this time the offense level is reduced to 24. ” Leadership and acceptance of responsibility adjustments reduced 24 to a final base offense level of 23. Combined with a category IV crim inal history, Smith’s modified G uideline range was 70 to 87 months’ imprisonment

— at least a year less than his original range. Finally, t he probation officer recommended a reduced sentenc e of 80 months’ imprisonment. The government opposed the report’s recommendation. It argued the probation officer incor rec tly determined Smith’s amended G uideline range by “merely continu[ing] the same 1 to 1 conversion ratio for converting cocaine base to cocaine” to reach the initial base offense leve l of 24. According to the government, w hat she should have done was apply Amendment 782’s modifications without incorporating the one

- to

- one ratio the district court ultimately adopted at sentencing. Under the government’s proposed calculation , Smith’s amended G uideline range was “ 100 to 125 months in pris on, which i s higher than [his] current sentence of 96 months in prison.” Consequentl y, because defendant’s amended G uideline range was not lower than th e 84

- to

- 105 month range used at sentencing, the go vernment argued he was ineligible for a reduction, and “object[e d] to any modification of Joshua Smith’s sentence.” The district court ruled on Smi th’s motion without a hearing . In a terse order, the court stated that it “determined that the defendant is eligible for a reduction of sentence,” after “[h] aving fully c onsidered” the SMR and the parties’ responses. It then reduced defendant’sNo. 15

- 2376 , United States v. Smith

- 5

-

sentence to 80 months without explaining why this term se rved the factors in 18 U.S.C. § 3553(a ). The government timely appeals

. II. We review a district court’s decision on a m otion to modify a sentence for abuse of discretion. United States v. Washington , 584 F.3 d 693, 695 (6th Cir. 2009). A district court abuses its discretion when it “ relies on clearly erroneous findings of fact, improperly appli es the law, or u ses an erron eous legal standard. ” I d. Whether a distric t court was correct in finding the defendant eligible for a sentence modification is a question of law reviewed de novo. United States v. Riley , 726 F.3d 756, 758 (6th Cir. 2013). “A district court may modify a defendant’s sentence only as authorized by statute. ” United States v. Howard , 64 4 F.3d 455, 457 (6th Cir. 2011). Section 3582(c) authorizes sentence modification when “(1) the defendant ‘has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by th e Sentencing Commission

. . . ’ and (2) ‘such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.’” United States v. Pembrook , 609 F.3d 381, 383 (6th Cir . 2010) (quoting 18 U.S.C. § 3582(c)(2) (emphasis omitted) ). Here, the government agrees Smith was sentenced to a term of imprisonment based on a sentencing range that was subsequently lowered by the Sentencing Commission in Amendment 782. Amendment 782 reduced the base offense levels for crack cocaine offenses in U.S.S.G. § 2D1.1(c) ’s drug quantity tables

. See United States v. Smith , 814 F.3d 802, 803 (6th Cir. 2016) (per curiam ) (explaining amendment). The government disagrees, however, on the second element; it contends that reducing defendant’s sentence is not consistent with the Sentencing Commission’s applicable policy statements in U.S.S.G. § 1B1.10.No. 15

- 2376 , United States v. Smith

- 6

-

Section 1B1.10 limits modificatio n in two ways: first, it provides that “[a] reduction in the d efendant’s term of imprisonment is not consistent with this policy statement” if the amendment “does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10 (a)(2)(B). Second, it directs sentencing courts “not [to] r educe the defendant’s term of imprisonment . . . to a term that is less than the minimum of the amended guideline range.” U.S.S.G. § 1B1.10(b)( 2)(A). Taken together, these restrictions require the modifying court to compare the def endant’s applicable g ui deline range at sentencing with the amended G u ideline range. If the amended G uideline rang e is lower than the applicable G uideline range, the defendant may qualify for a modified sentence

— with the caveat that the court may not reduce his sentence to a ter m less t han the low end of the amended G uideline range. See, e.g. , United States v. Garrett , 758 F.3d 749, 752

– 53 (6th Cir. 2014) (illustrating § 1B1.10(a)(2)(B)); United States v. Jackson , 751 F.3d 707, 711

– 12 (6th Cir. 2014) (illustrating § 1B1.10(b)(2) ). The g overnment argues that in relying on the SMR to grant Smith a modification , the district court exceeded both limits, once by miscalculating Smith’s applicable G u ideline range, and again by reducing his 96

- month sen tence below the amended G uideline r ange to 80 months’ imprisonment.
A. Smith may be eligible for a reduced sentenc e if the G uidelines amendment has the effect of lowering his “applicable guideline range.” See U.S.S.G. § 1B1.10(a) (2)(B) ; 18 U.S.C. § 3582(c)(2). “We have thoroughly discussed the meaning of the phrase ‘applicable guideline range’ and have expressly held that ‘a defendant’s guideline range is the range produced under the guidelines’ sentencing table after a correct determination of the defendant’s total offenseNo. 15

- 2376 , United States v. Smith

- 7

-

level and criminal history category but prior to any discretionary departures.” Garrett , 758 F.3d at 753 (quoting Pembrook , 609 F.3d at 385 ). The SMR took a n altogether different approach. It calculated defendant’s applicable
G uideline range starting with the initial base offense level the district court adopted after applying the “ 1:1 powder cocaine to crack cocaine ratio, which reduced the offense level to 26 .” With the appropriate adjustments for leadership and acceptance o f responsibility, the SMR assigned defendant a final b ase offense level of 25, and a G uidelines range of 84 to 105 months

— just as the district court did whe n it sentenced him to 96 months’ imprisonment. The SMR assumed , in other words, that Smith’s “appli cable guideline range” was the range the district court ultimately applied at sentencing

— as opposed to the range that applied before any departures or variances . In apparent agreement with the SMR’s reasoning, the district court f ollowed its recommendatio n to modify Smith ’s sentence. This was error

. Defendant’s applicable G uideline range is “the range that was applicable to him under the Guidelines ; not the range, if any, upon which his sentence was ultimately based.” Garrett , 758 F.3d at 753; see also Pembrook , 609 F.3d at 387 . Even by November 2011, “the Guidelines commentary ha[d] been amended to clarify and affirm this point,” Garrett , 758 F.3d at 753 , specifying that the applicable G uideline range is the range “that corresponds to the offense leve l and criminal history category . . . which is determined before consideration of any departure . . . or any variance,” U.S.S.G. § 1B1.10 cmt. 1 (A). Here, that means Smith’s “applicable guideline range” was the range that applied before the district court adopted the one

- to

- one ratio at sentencing, not after. In an effort to evade § 1B1.10, Smith claims the district court’s one

- to

- one ratio was neither a departure from, nor a variance to the Guid elines range. H e argues the district courtNo. 15

- 2376 , United States v. Smith

- 8

-

“made an expres s [ factual ] finding” that he was “responsible for 994.238 grams of powder cocaine.” Smith is incorrect

. The distr ict court never made findings regarding the amount of powder cocaine defendant distributed as opposed to the amount of crack cocaine he dist ributed. The PSR assigned Smith responsibility for 174.439 grams of cocaine base and 819.799 grams of powder cocaine; thus , 994.238 grams represents the total amount of drugs Smith conspired to distribute. Further, the PSR detailed the instances in which defendant sold ea ch substance. When the court asked whether he had any objections “only with regard to th[at] factual recitation,” Smith replied he did
not. Indee d, defendant conceded drug quantity and type by pleading guilty to conspiring to distribute cocaine and cocaine base , and admitting that he “distribut[ed] 50 grams or more of crack cocaine” at his plea hearing. 4 Had the district court foun d Smith responsible for powder cocaine exclusively , it would have been unnecessary for the court to explain that it “calculated the offense level based on a one

- to

- one powder to crack cocaine ratio,”

— or resort to a one

- to

one ratio in the first place. Use of an alternative ratio to lessen the sentencing disparity between powder and crack cocaine is considered a variance to the Guidelines on policy grounds. See Spears v. United
States , 555 U.S. 261, 263

– 66 (2009) (per curiam); see also Garrett , 758 F.3d at 753. Yet even if

a one - to

- one ratio “may in some way be considered a ‘departure’ . . . any departure would have no effect on [defendant’s] ‘applicable guideline range,’ which is the range ‘that applied before the sentencing court decided to depart or vary.’” Garrett , 758 F.3d at 753 (quoting Pembrook , 609 F.3d at 384

– 85). Departures and va riances may be discretionary, but the “applicable

4 Defendant also stipulated t o distributin g 174.439 grams of cocaine base and 819.799 gr ams of powder cocaine in his ple a agreem ent. The court accepted his plea, however, without adopting the agreement in a written order

.No. 15

- 2376 , United States v. Smith

- 9

-

guideline range” is not. Id. It “does not vary from one court to another,” and “certainly cannot be changed by a policy disagreement with the Guidelines.” Id. The government is therefore correct that Sm ith’s “applicable guideline range” must be calculated without the one

- to

- one ratio. Wit h out the one

- to

- one ratio, d efendant’s cocaine and cocaine ba se quantities equate to 786.88 kilograms of marijuana , see U.S.S.G. § 2D1.1 cmt. (10)(B) & (D) , correspondin g to an initial base offense level of 30 in the 2011 Guidelines

. 5 O ffense level 30 is reduced to 29 after the leadership and acceptance of responsibility adjustments. A final base offense level of 29 , combined with a criminal history category of IV , yiel ds an a pplicable G uideline range of 121 to 151 months’ imprisonment. See U.S.S.G. §§ 2D1.1(c) and 5A (sentencing table).
B. The next step is comparing Smith’s applicable G uideline range to the amended G uideline
range

— the range “that would have been applicable . . . if the amendme nt[] . . . had been in effect at the tim e the defendant was sentenced,” leaving “all other guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1). For the probation officer, lea ving “all other guideline application decisions unaffected” in this case meant reapplying the district court’s one

- to

- one ratio to determine defendant’s amended G uideline range: “ At the time of sentencing the Court used a 1:1 powder cocaine to crack cocai ne ratio, which reduced the offense level to 26. At this time the offense level is reduced to 24. ” A fter a reduction to a final base offense level of 23 based on the appropriate a djustments, the officer concluded defendant’s amended G uideline

5 This calculation also eliminates the PSR’s erroneous mixed

- dru g reductio n . See n.2, supra . Although we ordinarily determine eligibility for modification by “substitut[ing] only” the retroactive amendment and “leav[ing] all other guideline application decision s unaffected,” see U.S.S.G. § 1B1.10(b)(1), even if incorrectly made , see Dillon v. United States , 560 U.S. 817 , 831 (2010), the mixed

- drug reduction in the present case is not an “other guideline application decision []” that the district court actually made

. The court specifically rejected the PS R’s calculation in favor of the one

- to

- one ratio. Thus , this is not the type of “mistake[] in [the defendant’s] original sentence” we are prohibited from correcting under Dillon

. Id

.No. 15

- 2376 , United States v. Smith

- 10

-

range was 7 0 to 84 months’ imprisonment, and recommended a reduced sentence of 80 months’ imprisonment. This was incorrect. As explained, a one

- to

- one ratio is a policy

- based var iance to the Guidelines, not a

“ guideline application decision [] ” to be left unaffecte d under § 1B1.10(b)(1) . “[T]he provisions of § 1B1.10 . . . require a resentencing court to apply the amended Guidelines range that would have been applicable to a defendant , without applying any departures [or variances] other than one . . . based on a d efendant’s substantial assistance.” United States v. Taylor , 815 F.3d 248, 251 (6th Cir. 2016) (quoting United States v. Steele , 714 F.3d 751, 753 (2d Cir. 2013) (per curiam)). It is undisputed that the district court did not apply a one

- to

- one ratio to reflect Smith’s substantial assistance to the government. Thus , Smith’s amended G uideline range must be calculated without that variance. Removing the variance returns the analysis to a marijuana equivalency calculation

. After Amendment 782 , the base o ffense level for 786.881 kilograms of marijuana is 28

— again reduced to 27 after leadership and acceptance of responsibility adjustments. Offense level 27 and criminal history cat egory IV results in an amended G uideline range of 100 to 125 months’ imprison ment. See U.S.S.G. §§ 2D1.1(c) (e ff. Nov. 1, 20 14) and 5A (sentencing table) (e ff. Nov. 1, 2014). An amended G uideline range of 100 to 125 months has the effect of lowering Smi th’s applicable G uideline range of 121 to 151 months. While this is not the e nd of the inquiry, it means that “[a] reduction in the defendant’s term of imprisonment” is at least consistent with the Commission’s “policy statement” in U.S.S.G. § 1B1.10(a)(2)(B).
C. However, the reduction is not consistent with the Commission’s policy statement in § 1B1.10(b)(2) . “Subsection 1B 1 .10(b)(2) of the Guidelines Manual imposes a hard limit on aNo. 15

- 2376 , United States v. Smith

- 11

-

court’s ability to reduce the sentence for a defendant who has been deemed eligible for a § 3582(c)(2) senten ce reduction.” Jackson , 751 F.3d a t 711 (footnote omitted). “The subsection’s title

— ‘Limitation and Prohibition on Extent of Reduction’

— reflects this.” Id. Under § 1B 1 .10 (b)(2) , “the court shall not reduce the defendant’s term of imprisonment . . . to a term that is less than the minimum of the amended guideline range,” except in instances of substantial assistance to the gover nment ( which again does not apply )

. S ee Taylor , 815 F.3d at 251

– 52 . “When Congress granted the district courts authority to r educe otherwise valid sentences pursuant to § 3582(c)(2), it explicitly restricted judicial discretion by incorporating the Commission’s policy statem ents, which limit the extent of the reduction.” Washington , 584 F.3d at 700. The G uidelines may be advi s ory, but § 1B 1 .10(b)(2) (A)’s restrictions are not

. Id. ; see also Jackson , 751 F.3d at 711

. Smith’s amended G uideline range was 100 to 125 months’ imprisonment . Thus, he was not eligible for a modification because his original 96

- month sentence was already beneath the minimum term of that amended range. Jackson , 751 F.3d at 711. The SMR’s recommendation to the contrary depended upon an incorrect calculation of defendant ’s applicable and amended
G uideline ranges. In following that erroneous recommendation , and reducing defendant’s
sentence to 80 months’ imprisonment, the district court exceeded its authority under § 1B 1 .10(b)(2) and § 3582(c)(2). See id

. Because the district court was prohibited from reducing defend ant’s sentence to a term less than the minimum of the amended G uideline range,

“ and because the district court did just that,” its decision must be vacated

. I d. at 711

– 12.
III. For these reasons, we vacate the district cour t’s modified sentence and rema nd with instructions to reinstate Smith’s original sentence.