In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3866

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES GUYTON,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Indiana, Hammond Division.

No. 2:01-CR-53—Rudy Lozano, Judge.

ARGUED JUNE 9, 2010—DECIDED FEBRUARY 22, 2011

Before POSNER, WOOD, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Appellant James Guyton was

sentenced for a crack cocaine offense before the Supreme

Court held that the Sentencing Guidelines were advisory

in United States v. Booker, 543 U.S. 220 (2005). Guyton’s

guideline range was based on the career offender guideline, U.S.S.G. § 4B1.1, but the district court granted a

downward departure under section 5K1.1 based on his

assistance to the government. The court departed down-
2 No. 09-3866

ward to a sentence within the range for crack cocaine

offenses that would have applied to Guyton absent the

career offender designation.

In limited circumstances, 18 U.S.C. § 3582(c)(2) authorizes a district court to reduce a sentence of imprisonment imposed under a previous version of the United

States Sentencing Guidelines so as to give retroactive

effect to guideline amendments that the Sentencing

Commission has chosen to make retroactive. A reduction

is permitted only if “the guideline range applicable to

that defendant” has been retroactively lowered. U.S.S.G.

§ 1B1.10(a). After the Sentencing Commission retroactively reduced the guideline ranges for crack cocaine

offenses, Guyton moved for a sentence reduction

under section 3582(c)(2). The district court denied his

motion, and Guyton has appealed. We affirm.

We held in United States v. Forman, 553 F.3d 585, 589-90

(7th Cir. 2009), that a crack cocaine offender sentenced

under the career offender guideline was not eligible for

a reduced sentence under section 3582(c)(2). The crack

cocaine amendment simply did not lower the defendant’s

applicable guideline range. Here we face a variation on

the Forman issue: whether a defendant sentenced under

the career offender guideline, but with a downward

departure for substantial assistance, is eligible for a

reduction. We hold that, for purposes of section 3582(c)(2),

the relevant sentencing range is the one calculated

before the defendant received the benefit of a downward

departure under Chapter 5 of the Guidelines. The Sentencing Commission has not retroactively reduced the
No. 09-3866 3

career offender guideline that determined the guideline

range applicable to defendant Guyton. The reasoning

of Forman applies, therefore, and the district court was

required to deny Guyton’s motion.

I. The Facts and Procedural Background

Guyton was sentenced in 2001 for possessing crack

cocaine with intent to distribute it in violation of

21 U.S.C. § 841(a)(1). Two prior felony convictions

meant that he qualified as a career offender under

U.S.S.G. § 4B1.1. At that time, the Guidelines were considered binding, and Guyton’s career offender status

produced a guideline imprisonment range of 188 to 235

months in prison. Based on his substantial assistance to

the government in prosecuting another person, the government moved for a downward departure under

U.S.S.G. § 5K1.1 and requested a lesser sentence of 130

months. The district court granted the motion and sentenced Guyton as recommended, remarking that the

government was in the best position to determine the

value of his assistance and the extent of the downward

departure he had earned.

In 2007, the Sentencing Commission adopted Amendment 706, which reduced the base offense levels for

crack cocaine offenses. Then, with Amendment 713, the

Commission made the change retroactive. See U.S.S.G.

§ 2D1.1(c); U.S.S.G. Supp. App. C, Amdts. 706 and 713

(2008). Invoking Amendment 706, Guyton moved to

reduce his sentence under 18 U.S.C. § 3582(c)(2).

The district court denied the motion, observing that the
4 No. 09-3866

amendment could not benefit Guyton because his original sentence was based not on the crack guideline but

on his career offender status and the substantial

assistance departure. Amendment 706 left the career

offender guideline unchanged.

II. Analysis

We held in United States v. Forman that a crack cocaine

offender sentenced under the career offender guideline

was not eligible for reduced sentence under section

3582(c)(2). 553 F.3d at 589-90. To avoid the holding of

Forman, Guyton contends that his actual sentence was

“based on” the crack cocaine guideline, § 2D1.1(c),

instead of or in addition to the career offender guideline,

§ 4B1.1. He stresses that his ultimate prison term of 130

months fell within the range that would have applied

absent his career offender status. He suggests that the

crack guideline explains the extent of the departure

he received and that his sentence was, at least in that

colloquial sense of the statutory phrase, “based on” a

sentencing range that was later lowered by the Sentencing Commission.

We affirm the district court’s judgment. As a matter of

law, a sentence reduction under section 3582(c)(2) is

unavailable to Guyton because his relevant guideline

range was established by the career offender guideline

before he received the benefit of the departure. Because

Guyton’s applicable guideline range was not changed

by the retroactive guideline Amendment 706, reducing

his sentence would have been contrary to the policy of
No. 09-3866 5

the Sentencing Commission, which is the relevant

inquiry under the statute.

A. The Statutory Framework

As a general rule, with just a few exceptions, a district

court may not modify a term of imprisonment once it

has been imposed. 18 U.S.C. § 3582(c); Dillon v. United

States, 130 S. Ct. 2683, 2687 (2010); United States v.

Jackson, 573 F.3d 398, 399 (7th Cir. 2009). In section 3582(c)(2), Congress created one narrow exception. A district court may modify a sentence if two conditions are met: first, the original sentence was “based

on a sentencing range that has subsequently been

lowered by the Sentencing Commission,” and second, a

reduction would be “consistent with applicable policy

statements issued by the Sentencing Commission.” 18

U.S.C. § 3582(c)(2); Dillon, 130 S. Ct. at 2687; United States

v. Darton, 595 F.3d 1191, 1194 (10th Cir. 2010); United

States v. Tolliver, 570 F.3d 1062, 1065 (8th Cir. 2009);

United States v. Forman, 553 F.3d at 588.

This statutory scheme delegates a great deal of power

and discretion to the Sentencing Commission. The Commission, not a federal court, decides when an amendment is retroactive and issues policy statements that

can make a sentencing reduction unavailable. The

Supreme Court has confirmed that in section 3582(c)(2)

proceedings, unlike original sentencing proceedings now

governed by Booker, the Commission’s policy statements

still bind the federal courts. Dillon, 130 S. Ct. at 2687-88.
6 No. 09-3866

The Commission lists by number in U.S.S.G. § 1B1.10(c)

the binding policy statements making amendments

retroactive. Subsection (a)(2)(B) of the same section prohibits a sentence reduction if the amendment at issue

“does not have the effect of lowering the defendant’s

applicable guideline range.” (Emphasis added.)

B. The “Applicable Guideline Range”

Under the Guidelines, a defendant has only one “applicable guideline range,” and it is a range that the district

court calculates before granting any departures under

Chapter 5 of the Guidelines. (We do not address here

whether the applicable guideline range is established

before any departures for over-representation of a defendant’s criminal history under section 4A1.3. That issue

has sharply divided the circuits and is not before us in

this case.) For Guyton, who received a substantial assistance departure under section 5K1.1, the applicable range

was furnished by the career offender guideline.

Our analysis starts with the language of section 1B1.10(a)(2)(B). The reference there to “the defendant’s applicable guideline range” is singular,

implying that a defendant has only one applicable guideline range. That conclusion is consistent with the overall structure of the Guidelines, which require ultimately

a determination of one guideline range that applies to

the defendant. That observation, however, does not

show just when the applicable guideline range is established. We turn to the context in which the phrase appears.
No. 09-3866 7

We refer to a “genuine” departure because, after Booker, a 1

sentencing court can impose a sentence outside the applicable

(continued...)

First, section 1B1.10 takes for granted that a defendant

who received a “downward departure” in the pre-Booker

era received a specific term of imprisonment below his

applicable range. Specifically, section 1B1.10(b)(2)(B)

states that if a district court considers a motion under

section 3582(c)(2) pursuant to a retroactively-amended

guideline range, the court may sentence below the

amended range only if “the original term of imprisonment

imposed was less than the term of imprisonment

provided by the guideline range applicable to the defendant

at the time of sentencing.” (Emphasis added.) This provision assumes that “the applicable guideline range” is the

range established before a district court decides to

depart or vary downward. E.g., United States v. Pembrook,

609 F.3d 381, 384-85 (6th Cir. 2010). Contra, United States

v. Flemming, 617 F.3d 252, 266 n.20 (3d Cir. 2010); United

States v. McGee, 553 F.3d 225, 228 (2d Cir. 2009). The

provision in subsection (b)(2)(B) makes little sense if

the departure itself is treated as providing the applicable

“range.”

Second, and more important, the structure of the Guidelines makes clear that the applicable guideline range

is the one calculated before any departure under section 5K1.1. The Guidelines permit a genuine departure

under section 5K1.1 and other provisions found in

Chapter 5 only after the court has already determined “the

applicable guideline range.” Section 1B1.1 lays out the 1
8 No. 09-3866

(...continued) 1

guideline range for reasons independent of the Guidelines

themselves.

Effective November 1, 2010, the Sentencing Commission 2

amended and reorganized section 1B1.1 to emphasize the three

basic steps in sentencing after Booker: first, under subsection (a),

calculate the applicable guideline range; second, under subsection (b), consider departures under the Guidelines themselves; third, under subsection (c), consider the other applicable factors under 18 U.S.C. § 3553(a). We cite in this

opinion the new amended organization of section 1B1.1. The

amended version of section 1B1.1 was in large part a response

to a line of our cases, beginning with United States v. Johnson,

427 F.3d 423, 426 (7th Cir. 2005), saying that Booker rendered

the Guidelines’ concept of departure “obsolete.” See Amendment 741 to the Sentencing Guidelines (resolving circuit split

regarding application methodology for district courts). In a

strictly legal sense, the “obsolete” description was accurate

as applied to appellate review of a sentence, but the “obsolete”

line of cases should not discourage district courts from

taking genuine guidance from all the Guidelines, including

their departure provisions, as required under the amended

section 1B1.1.

order in which courts apply the guideline provisions. In

the first several steps, the district court calculates the

defendant’s total offense level and criminal history category and determines the corresponding guideline range.

U.S.S.G. § 1B1.1(a)(1)-(a)(8). After the court determines 2

the range, it “shall then consider Parts H and K of Chapter

Five, Specific Offender Characteristics and Departures,

and any other policy statements or commentary in the
No. 09-3866 9

guidelines that might warrant consideration in imposing

sentence.” § 1B1.1(b). The court then moves beyond

the Guidelines and considers other factors under

18 U.S.C. § 3553(a). See § 1B1.1(c).

Within this structure, a section 5K1.1 departure necessarily comes after the establishment of a specific guideline range applicable to the defendant. Flemming, 617

F.3d at 262-64; Pembrook, 609 F.3d at 385; Darton, 595

F.3d at 1197; see also Tolliver, 570 F.3d at 1065-66. Thus, a

career offender whose imprisonment term falls below

his career offender range only by virtue of a departure

under Part 5H or Part 5K cannot receive a reduction

under section 3582(c)(2) unless the Sentencing Commission retroactively amends the career offender guideline.

This conclusion is consistent with decisions of the

Sixth, Eighth, and Tenth Circuits, which hold that the

only applicable guideline range is the one established

before any departures. See United States v. Hameed, 614

F.3d 259 (6th Cir. 2010); Pembrook, 609 F.3d 381; Darton,

595 F.3d 1191; United States v. Blackmon, 584 F.3d 1115 (8th

Cir. 2009); United States v. Collier, 581 F.3d 755 (8th Cir.

2009); Tolliver, 570 F.3d 1062. Our decision does not

conflict with the Third Circuit’s decision in Flemming,

which held that the applicable guideline range is established before any departure under section 5K1.1 for

substantial assistance, but after any departure under

section 4A1.3 for over-representation of the defendant’s

criminal history. Flemming, 617 F.3d at 262-64. The

Eleventh Circuit, too, has suggested in dicta that it might

adopt different approaches for departures made under
10 No. 09-3866

Chapters 4 and 5. See United States v. Moore, 541 F.3d 1323,

1329-30 (11th Cir. 2008).

Our decision is in tension with those of the First, Second,

and Fourth Circuits. See United States v. Cardosa, 606

F.3d 16 (1st Cir. 2010); United States v. Munn, 595 F.3d 183

(4th Cir. 2010); McGee, 553 F.3d 225 (2d Cir. 2009). Although the defendant in each of these cases had received

a departure under section 4A1.3 instead of or in addition

to a departure under section 5K1.1, some of the language

in these decisions might not be limited to departures

under section 4A1.3. To the extent that Cardosa, Munn, and

McGee may be read to permit a sentence reduction in

circumstances like Guyton’s, we respectfully disagree

with them.

For now, though, we grapple no further with the decisions authorizing sentence reductions for defendants

who received a departure under section 4A1.3 to a term

within the crack-cocaine range that would have applied

in the absence of career-offender status. First, neither

Cardosa nor McGee analyzes the application instructions

in section 1B1.1, so we would not consider them persuasive on this issue. See Cardosa, 606 F.3d 16; McGee, 533

F.3d 225. Second, the nub of Flemming and Munn—that a

“departure” under section 4A1.3 is actually a step in calculating the defendant’s criminal history category and

thus precedes the establishment of the applicable

guideline range—has no bearing on our conclusion that

the applicable guideline range is established before

any departures under Chapter 5. See U.S.S.G. § 1B1.1 (a)(6)

through (a)(8), (b), and (c); Flemming, 617 F.3d at 262-64
No. 09-3866 11

(explaining that departure under section 5K1.1 is made

at old step (i) of the application instructions, which is

now step (b), but departure under section 4A1.3 might

be made at old step (f), which is now step (a)(6), before

the guideline range is established at old step (h), which

is now step (a)(8)); Munn, 595 F.3d at 192 (“Because of

section 4A1.3’s placement, however, the Commission

most likely intended for the court to grant an Overrepresentation Departure before determining the applicable

guideline range, as part of its calculation of the criminal history category.”).

Finally, we decline to rely on a definition added to

the Guidelines in 2003 in Amendment 651 that some

readers might have thought would resolve this case.

Since 2003, Application Note 1(E) to section 1B1.1 has

defined a “departure” as the “imposition of a sentence

outside the applicable guideline range.” Where this

definition holds, the applicable guideline range is

always established before any departures can be made.

The circuits are divided on the applicability of Amendment 651 to section 3582(c)(2) proceedings for defendants

like Guyton who were sentenced before it was adopted.

Compare Pembrook, 609 F.3d at 385-86, with Flemming,

617 F.3d at 266-68, and Munn, 595 F.3d at 193-94. Our

structural analysis suffices to support our holding, and

the parties have not addressed Amendment 651. We

leave that issue for a case in which it would make

a difference.

Guyton’s applicable guideline range was established on

the basis of his career-offender status before he received
12 No. 09-3866

a substantial assistance departure. Thus, Amendment

706, which left the career offender guideline unchanged,

did not affect his applicable guideline range, and

he did not qualify for a sentence reduction under

section 3582(c)(2). The judgment of the district court

is AFFIRMED.

2-22-11