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12-1072-cr

United States v. Steele

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2012

(Submitted: May 6, 2013 Decided: May 9, 2013)

Docket No. 12-1072-cr

_______________________________________________________________

UNITED STATES OF AMERICA,

Appellee,

v.

TERRENCE STEELE, also known as Tee-Fur, also known as T,

also known as T-Fur,

Defendant-Appellant,

CHRISTOPHER GOINS, also known as Mad Ball,

Defendant.*

_______________________________________________________________

Before: CABRANES, WESLEY, and WALLACE,

† Circuit Judges.

If a criminal defendant is sentenced to a term of imprisonment based on a provision of the 

United States Sentencing Guidelines (the “Guidelines”) that is subsequently amended by the 

Sentencing Commission, a federal sentencing court may, in some circumstances, reduce the 

defendant’s term of imprisonment based on the amended Guidelines provision. See 18 U.S.C. 

 

* The Clerk of Court is directed to amend the official caption in this case to conform to the listing of the parties 

above.

† The Honorable J. Clifford Wallace, of the United States Court of Appeals for the Ninth Circuit, sitting by 

designation.
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§ 3582(c)(2). The question presented in this appeal is whether a sentencing court exercising this 

authority may give a defendant the additional benefit of a downward departure previously awarded 

in the original sentencing. We hold that the provisions of § 1B1.10 of the Guidelines, as 

incorporated by § 3582(c)(2), require a resentencing court to apply the amended Guidelines range 

that would have been applicable to the defendant under the retroactive amendment, without applying 

any previously-granted departure, except for a departure granted upon an appropriate motion by the 

government based on the defendant’s substantial assistance. In other words, § 1B1.10 and 

§ 3582(c)(2) together do not permit a resentencing court to downwardly depart from the amended 

Guidelines range, even if a downward departure was granted in the original sentencing, absent a 

government motion for a departure based on substantial assistance. Accordingly, the amended 

judgment of the United States District Court for the District of Connecticut (Ellen Bree Burns, 

Judge) is affirmed.

Affirmed.

Randall D. Unger, Law Offices of Randall D. Unger, Bayside, 

NY, for Defendant-Appellant.

Michael E. Runowicz, Sandra S. Glover, Assistant United 

States Attorneys, Ann E. Breuer, Law Student Intern, 

for David B. Fein, United States Attorney for the 

District of Connecticut, New Haven, CT, for Appellee.
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PER CURIAM:

If a criminal defendant is sentenced to a term of imprisonment based on a provision of the 

United States Sentencing Guidelines (the “Guidelines”) that is subsequently amended by the 

Sentencing Commission, a federal sentencing court may, in some circumstances, reduce the 

defendant’s term of imprisonment based on the amended Guidelines provision. See 18 U.S.C. 

§ 3582(c)(2). The question presented in this appeal is whether a sentencing court exercising this 

authority may give a defendant the additional benefit of a downward departure previously awarded 

in the original sentencing. We hold that the provisions of § 1B1.10 of the Guidelines, as 

incorporated by § 3582(c)(2), require a resentencing court to apply the amended Guidelines range

that would have been applicable to the defendant under the retroactive amendment, without applying 

any previously-granted departure, except for a departure granted upon an appropriate motion by the 

government based on the defendant’s substantial assistance to authorities. In other words, § 1B1.10 

and § 3582(c)(2) together do not permit a resentencing court to downwardly depart from the 

amended Guidelines range, even if a downward departure was granted in the original sentencing,

absent a government motion for a departure based on substantial assistance.

BACKGROUND

On December 11, 2006, a jury found defendant-appellant Terrence Steele guilty of 

(1) conspiring to possess with the intent to distribute, and to distribute, fifty grams or more of a 

mixture or substance containing cocaine base, in violation of 21 U.S.C. § 846; and (2) possessing 

with the intent to distribute fifty grams or more of a mixture or substance containing cocaine base, 

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). At sentencing, the United States District Court for 

the District of Connecticut (Ellen Bree Burns, Judge) determined, as relevant here, that Steele’s 

criminal history points and career offender designation corresponded to a criminal history 

category of VI. In his sentencing memorandum, however, Steele argued that this designation 
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overstated his criminal history. The Court agreed to downwardly depart from this criminal history 

category and sentenced Steele based on a criminal history category of V. Following an initial appeal

not relevant here, the District Court resentenced Steele, after downwardly departing to a criminal 

history category of V, to 151 months’ imprisonment, and that sentence was affirmed on Steele’s 

second appeal.1

After Steele’s resentencing, the Sentencing Commission promulgated Amendment 750, 

which retroactively lowered the base offense levels for crack-cocaine offenses pursuant to the Fair 

Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010). Steele then moved in the 

District Court for yet another reduction in his sentence based on retroactive application of the new 

crack-cocaine sentencing rules in § 2D1.1 of the Guidelines. See U.S. Sentencing Guidelines Manual

(“U.S.S.G.”) § 1B1.10(c) (2012) (making retroactive the relevant part of Amendment 750). The 

government agreed that Steele was eligible for resentencing, see id. § 1B1.10(a), and should be 

resentenced based on a lower offense level. However, the government argued that the District 

Court must apply the sentencing range that would apply without departing from Steele’s original 

criminal history category of VI, as it had done previously. 

The District Court agreed with the government and therefore resentenced Steele based on a 

pre-departure Guidelines range of 140 to 175 months’ imprisonment. The Court lowered Steele’s 

prison sentence from 151 months to 140 months. See note 1, ante. Steele then brought the instant 

 

1 The District Court originally sentenced Steele to 324 months in prison, downwardly departing from criminal 

history category VI to category V, after applying a career offender enhancement. On Steele’s first appeal, we rejected his 

challenges to his conviction, but remanded for the District Court to consider whether the “‘crack-powder disparity might 

result in a sentence greater than necessary’” and to resentence accordingly. United States v. Steele, 283 F. App’x 838, 840-

41 (2d Cir. 2008) (alteration omitted) (quoting United States v. Regalado, 518 F.3d 143, 147 (2d Cir. 2008)).

On remand, the District Court determined, based on changes in the law, that Steele no longer had career offender 

status, which determination substantially decreased his Guidelines range. Although Steele still qualified for criminal 

history category VI, the District Court again granted Steele a downward departure to criminal history category V, and 

sentenced him to 151 months in prison. On Steele’s second appeal, we denied his claim that his sentence was 

procedurally and substantively unreasonable, and affirmed his 151-month sentence. United States v. Steele, 402 F. App’x 

660, 662-63 (2d Cir. 2010).
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appeal (his third), arguing that the District Court miscalculated the relevant Guidelines range by not 

lowering his criminal history category from VI to V, as it had in the earlier sentencings.

DISCUSSION

Having reviewed de novo the legal questions presented in this appeal, see United States v. 

Williams, 551 F.3d 182, 185 (2d Cir. 2009), we hold that the provisions of § 1B1.10 of the 

Guidelines, as incorporated by § 3582(c)(2), require a resentencing court to apply the amended 

Guidelines range that would have been applicable to a defendant, without applying any departures

other than one granted upon appropriate motion by the government based on a defendant’s 

substantial assistance.

Our holding follows from the plain language of 18 U.S.C. § 3582(c)(2) and the relevant 

provisions of the Guidelines. Section 3582(c)(2) provides statutory authority for limited 

resentencing proceedings: 

The court may not modify a term of imprisonment once it has been imposed except 

that . . . in the case of a defendant who has been sentenced to a term of 

imprisonment based on a sentencing range that has subsequently been lowered by 

the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the 

defendant or the Director of the Bureau of Prisons, or on its own motion, the court 

may reduce the term of imprisonment, after considering the factors set forth in 

section 3553(a) to the extent that they are applicable, if such a reduction is consistent with 

applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2) (emphasis added). This rule—namely, that resentencings pursuant to 

§ 3582(c)(2) must be consistent with the applicable Guidelines policy statement—is mandatory. 

Accordingly, § 3582(c)(2) does not authorize “a plenary resentencing proceeding,” Dillon v. United 

States, 130 S. Ct. 2683, 2691 (2010), and the resentencing court must treat the Guidelines as

binding—not as “advisory” as it would at a defendant’s initial sentencing, id. at 2691-93 (holding that

the constitutional rule of United States v. Booker, 543 U.S. 220 (2005) does not apply to resentencing).

According to the relevant policy statement issued by the Sentencing Commission, in setting a 
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reduced sentence, a resentencing court must first “determine the amended guideline range that 

would have been applicable to the defendant if the amendment(s) to the guidelines . . . had been in 

effect at the time the defendant was sentenced.” U.S.S.G. § 1B1.10(b)(1). Amendment 759 to the 

Sentencing Guidelines, which became effective November 1, 2011, amended the advisory notes to 

§ 1B1.10 to specify that this “applicable” Guidelines range “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 variance.” U.S.S.G. § 1B1.10 cmt. n.1(A) (emphasis 

added); see Stinson v. United States, 508 U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines Manual 

that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal 

statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”). The “applicable”

amended Guidelines range under § 1B1.10(b)(1) therefore does not incorporate any Guidelines 

“departures.”2 See U.S.S.G. § 1B1.1 cmt. n.1(E) (defining “departure” as “imposition of a sentence 

outside the applicable guideline range or of a sentence that is otherwise different from the guideline 

sentence,” or, for purposes of criminal-history departures under § 4A1.3, “assignment of a criminal 

history category other than the otherwise applicable criminal history category, in order to effect a 

sentence outside the applicable guideline range”).

Having determined the applicable amended Guideline range, a district court may resentence 

a defendant within that range, but “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” for any 

 

2 The definition of the “applicable” Guidelines range as the pre-departure Guidelines range appears in the 

commentary note to § 1B1.10(a), see U.S.S.G. § 1B1.10 cmt. n.1(A), but we detect no reasoning that would overcome the 

presumption that the same definition applies when determining the “applicable” Guidelines range for purposes of 

§ 1B1.10(b). Cf. Brown v. Gardner, 513 U.S. 115, 118 (1994) (noting the “presumption that a given term is used to mean 

the same thing throughout a statute”). For that reason, our conclusion is not put in doubt by the Guidelines instruction

that, when calculating the amended “applicable” Guidelines range, “the court . . . shall leave all other guideline 

application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1). Regardless of whether the decision to apply a departure 

provision is a “guideline application decision,” that determination is irrelevant when calculating the “applicable” (predeparture) amended Guidelines range.
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reason other than the defendant’s substantial assistance to the government. Id. § 1B1.10(b)(2). In 

other words, on resentencing pursuant to 18 U.S.C. § 3582(c), a defendant’s reduced sentence 

generally may not fall below the pre-departure Guidelines range that would have been “applicable” to 

him had he been sentenced after the relevant amendment to the Guidelines, with an exception only 

for a departure based on a defendant’s substantial assistance.

3

 See, e.g., United States v. Berberena, 694 

F.3d 514, 518-19 (3d Cir. 2012) (“[The policy statement] prohibits a reduction below the low end of 

a prisoner’s new range, even if the prisoner originally received a below-Guidelines sentence. The 

only exception is for defendants whose below-Guidelines sentences were based on a government 

motion to reflect the defendant’s substantial assistance to authorities.” (internal quotation marks 

omitted)); United States v. Valdez, 492 F. App’x 895, 900 (10th Cir. 2012) (unpublished and nonprecedential decision) (“[I]t is clear as a matter of law that the district court correctly held that, 

except for a reduction for substantial assistance, it lacked the authority to depart further from the 

amended Guideline on the ground that Valdez had received a criminal history category reduction in 

his original sentencing proceeding.”). 

The Guidelines Manual Application Notes, as amended November 1, 2011, illustrate this 

rule by hypothetical, using the example of a defendant whose applicable Guidelines range at the 

 

3 This limitation on the application of departures in resentencing proceedings under § 3582(c)(2) was imposed by 

Amendment 759—the same Amendment which defined the “applicable” guidelines range as pre-departure and prevariance. Prior to Amendment 759’s effective date, a resentencing court was permitted to grant any downward 

departure—not just one based on a government motion relating to substantial assistance—that it had also granted in the 

original sentencing proceeding, but a resentencing court could not grant a variance that it had granted in the original 

sentencing. See U.S.S.G. § 1B1.10(b)(2)(B) (2010); see also id. § 1B1.1 cmt. n.1(E). Amendment 759 was designed, inter 

alia, to remove the distinction between a departure and a variance granted at the original sentencing (except in the case 

of a downward departure upon government motion based on substantial assistance), and to prevent either from being 

re-applied at resentencing. See id. app. C, amend. 759.

Notably, § 1B1.10(b), as revised by Amendment 759, makes no distinction between departures (or variances) given 

at the original sentencing to account for the crack-powder disparity and those given at the original sentencing for any 

other reason. The revised § 1B1.10(b) simply precludes district courts from granting any departure or variance granted at 

the original sentencing. Whatever the merits of this approach, the parties raise no statutory or constitutional challenge 

to § 1B1.10(b) as modified by Amendment 759, and we therefore address only the proper interpretation of the policy 

statement.
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time of sentencing was 70 to 87 months’ imprisonment and whose applicable amended Guidelines 

range is 51 to 63 months’ imprisonment. U.S.S.G. § 1B1.10 cmt. n.3. In such a case, “if the term of 

imprisonment imposed . . . was not a sentence of 70 months (within the guidelines range) but 

instead was a sentence of 56 months (constituting a downward departure or variance), the court . . .

may reduce the defendant’s term of imprisonment, but shall not reduce it to a term less than 51 

months.” Id. Accordingly, the District Court correctly determined that it lacked the authority to 

further reduce Steele’s sentence based on its previously-awarded downward departure, which 

reduced his criminal history category from VI to V.

We are mindful that our decision today departs from the understanding of § 1B1.10 that we 

articulated in United States v. Rivera, 662 F.3d 166 (2d Cir. 2011). In that case, we explained that “the 

‘guideline range applicable to the defendant’ within the meaning of § 1B1.10 is the range that was 

actually used in sentencing the defendant,” id. at 181 (quoting U.S.S.G. § 1B1.10). After that case was 

decided, however, the Sentencing Commission amended the Guidelines to specify, as noted above,

that the “applicable Guidelines range” refers to “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 variance.” U.S.S.G. § 1B1.10 cmt. 

n.1(A) (emphasis added). Our decision in Rivera specifically acknowledged that this Guidelines

amendment—which had been proposed pursuant to 28 U.S.C. § 994(u),4but had not yet been 

enacted—would “prescribe the precise construction of ‘applicable guideline range’ that we refuse to 

give the existing guideline, i.e., it is the pre-departure range from the initial sentencing.” Rivera, 662 

F.3d at 183. In other words, Rivera recognized that its holding was limited and that it would not 

apply to cases where, as here, a defendant petitions for relief under § 3582(c)(2) after the 2011 

 

4 28 U.S.C. § 994(u) provides that “[i]f the Commission reduces the term of imprisonment recommended in the 

guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what 

amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.”
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amendments to § 1B1.10 became effective.5

CONCLUSION

To summarize:

(1) We hold that the provisions of § 1B1.10 of the Guidelines, as incorporated by 

18 U.S.C. § 3582(c)(2), require a resentencing court to apply the amended Guidelines

range that would have been applicable to a defendant, without applying any departures

other than one granted upon appropriate motion by the government based on a 

defendant’s substantial assistance. In other words, § 1B1.10 and § 3582(c)(2) 

together do not permit a resentencing court to downwardly depart from the 

amended Guidelines range—even if a downward departure was granted in the 

original sentencing—except on a government motion for a departure based on 

substantial assistance.

(2) Applying that rule to the facts of this case, we agree with the District Court that, 

absent a government motion for a departure based on substantial assistance, Steele 

was not entitled to a downward departure from a criminal history category of VI to a 

criminal history category of V in his resentencing pursuant to § 3582(c)(2), even 

though the District Court had granted such a departure in his original sentencing.

The amended judgment of the District Court is AFFIRMED.

 

5 Steele’s additional argument that the District Court may have applied a criminal history category of V as a variance 

rather than as a departure is both factually wrong and legally irrelevant. As a factual matter, Steele’s argument finds no 

support in the record. See, e.g., United States v. Steele, No. 3:05CR292 (EBB), slip. op. at 1 (D. Conn. Sept. 14, 2012), ECF 

No. 199 (Ruling on Motion for Reconsideration) (noting that the District Court had “granted Steele a one-level criminal 

history departure from CHC VI to CHC V pursuant to U.S.S.G. § 4A1.3”). As a legal matter, the relevant issue in this 

appeal is how to calculate the “applicable” amended Guidelines range, U.S.S.G. § 1B1.10(b)(1), which is determined 

without reference to departures or variances, see id. § 1B1.10 cmt. n.1(A); see also note 3, ante (providing definitions for 

“departure” and “variance,” and explaining that generally neither departures nor variances are to be granted at 

resentencing proceedings under § 3582(c)(2)).