PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 17-3448

___________

UNITED STATES OF AMERICA

v.

REYNALDO RIVERA-CRUZ,

Appellant 

__________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. No. 1-06-cr-00043-001)

District Judge: Honorable Christopher C. Conner

___________

Submitted Under Third Circuit L.A.R. 34.1(a)

September 7, 2018

Before: HARDIMAN, KRAUSE, and BIBAS, 

Circuit Judges.

(Filed:September 24, 2018)
2

Carlo D. Marchioli

Office of United States Attorney

220 Federal Building and Courthouse

Harrisburg, PA 17108

Attorney for Appellee

Ronald A. Krauss

Office of Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Attorney for Appellant

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OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Reynaldo Rivera-Cruz appeals an order of the United 

States District Court for the Middle District of Pennsylvania 

denying his motion for a sentence reduction. The relevant 

statute (18 U.S.C. § 3582(c)(2)) authorizes sentence 

reductions for defendants initially “sentenced to a term of 

imprisonment based on” a United States Sentencing 

Guidelines (USSG) range that was later lowered by the

United States Sentencing Commission. In Koons v. United 

States, 138 S. Ct. 1783 (2018), the Supreme Court held that 

such relief is unavailable to a defendant whose Guidelines 

range is “scrapped” in favor of a statutory mandatory 

minimum sentence. Id. at 1787–88. We now hold that the 

same is true where, as here, a statutory maximum displaces 

the defendant’s Guidelines range. 
3

I

Rivera-Cruz pleaded guilty to distributing and 

possessing with intent to manufacture and distribute cocaine 

hydrochloride, in violation of 21 U.S.C. § 841(a)(1). The 

quantity of drugs involved yielded a base offense level of 32, 

see USSG § 2D1.1(c)(4) (2006), and the United States 

Probation Office recommended a two-level firearm 

enhancement and a two-level obstruction of justice 

enhancement. Based on a total offense level of 36 and a 

criminal history category of VI, Rivera-Cruz’s presentence 

report (PSR) calculated his Guidelines range as 324–405 

months’ imprisonment. Because Rivera-Cruz’s offense 

carried a statutory maximum of 240 months’ imprisonment, 

however, the PSR fixed his Guidelines range at that number. 

See 21 U.S.C. § 841(b)(1)(C); USSG §§ 1B1.1(a)(8), 

5G1.1(a).

At Rivera-Cruz’s March 2010 sentencing hearing, the 

District Court adopted the PSR’s findings and agreed that 

“because the statutory maximum penalty is 20 years, the 

[G]uideline sentence is restricted to 240 months.” App. 122. 

The District Court then considered the Government’s motion 

for a downward departure under USSG § 5K1.1 to account 

for Rivera-Cruz’s substantial assistance to the Government.

The Government requested a sentence of 25 months below 

the mandatory maximum, or 215 months’ imprisonment. 

After discussing the relevant factors in § 5K1.1, the District 

Court announced that it would grant the motion. In 

accordance with Third Circuit precedent, it calculated the 

extent of the departure in terms of “offense levels as opposed 

to specific quantities of time.” App. 127; see also United 

States v. Fumo, 655 F.3d 288, 316–17 (3d Cir. 2011) 

(explaining that, unlike a variance, a departure “change[s] the 
4

Guidelines range” and thus requires the sentencing court to 

“calculate a final guideline offense level and . . . range”). The 

Court settled on a five-level departure to an offense level of 

31, noting that the Government-recommended sentence of 

215 months fell “approximately in the middle” of the 

corresponding range of 188–235 months’ imprisonment. 

App. 127. It then sentenced Rivera-Cruz to 188 months’ 

imprisonment. Rivera-Cruz unsuccessfully appealed his 

conviction and sentence. United States v. Rivera-Cruz, 401 F. 

App’x 677, 678 (3d Cir. 2010).

Four years later, the Sentencing Commission adopted

Guidelines Amendment 782, which retroactively reduced 

Rivera-Cruz’s base offense level by two. See USSG App. C, 

Amdt. 782 (2014); id. § 1B1.10(d); see also 28 U.S.C. 

§ 994(o). With a total offense level of 34 (consisting of a base 

offense level of 30 and the aforementioned enhancements) 

and the same criminal history category, Rivera-Cruz’s 

applicable Guidelines range would have been 262–327 

months’ imprisonment. Because of the statutory maximum, 

however, Rivera-Cruz’s Guidelines range remained fixed at 

240 months. 

In June 2016, Rivera-Cruz requested a sentence 

reduction under 18 U.S.C. § 3582(c)(2), citing Amendment 

782. In addition to requiring that a defendant’s initial 

sentence be “based on” a subsequently lowered range, 

§ 3582(c)(2) requires that a Guidelines amendment cited in 

support of a § 3582(c)(2) motion “have the effect of lowering 

the defendant’s applicable guideline range.” USSG 

§ 1B1.10(a)(2)(B); 18 U.S.C. § 3582(c)(2) (requiring all 

sentence reductions to be “consistent with applicable policy 

statements,” including USSG § 1B1.10(a)(2)(B)). RiveraCruz acknowledged that the 240-month statutory maximum 
5

supplanted his initial Guidelines range both before and after 

Amendment 782. He nevertheless argued that, in light of his 

five-level downward departure, Amendment 782 effectively 

reduced his offense level from 31 to 29, which “ha[d] the 

effect of lowering [his] applicable guideline range,”

§ 1B1.10(a)(2)(B), from 188–235 months’ imprisonment to 

151–188 months. And because the District Court used his 

otherwise applicable—i.e., pre-maximum—Guidelines range 

of 324–405 months’ imprisonment as a baseline for its 

downward departure, he argued, his sentence was “based on”

a range lowered by the Sentencing Commission as required 

by 18 U.S.C. § 3582(c)(2). Citing the District Court’s original 

bottom-of-the-range sentence, Rivera-Cruz requested a 151-

month sentence. 

The District Court denied Rivera-Cruz’s motion. It did 

not determine whether Rivera-Cruz was initially sentenced 

“based on” a later lowered range, instead reasoning that,

because of the statutory maximum, Amendment 782 had no 

effect on his Guidelines range. Rivera-Cruz filed this timely 

appeal.

II

The District Court had jurisdiction under 18 U.S.C. 

§§ 3231 and 3582(c)(2). We have jurisdiction under 28 

U.S.C. § 1291 and may affirm the District Court’s order “on 

any basis supported by the record.” Murray v. Bledsoe, 650 

F.3d 246, 247 (3d Cir. 2011) (per curiam). We review de 

novo a district court’s determination that a defendant is 

ineligible for relief under 18 U.S.C. § 3582(c)(2). United 

States v. Weatherspoon, 696 F.3d 416, 420 (3d Cir. 2012).
6

III

In this appeal, Rivera-Cruz renews his claim that he is 

eligible for a sentence reduction because the District Court 

used his Guidelines range (based on an offense level of 36) as 

a “starting point” for its downward departure, so the Court 

“actually based [his] sentence on a Guidelines sentencing 

range . . . subsequently lowered by the Sentencing 

Commission.” Rivera-Cruz Br. 12. He also argues that the 

District Court erred in determining that Amendment 782 

“ha[d] no impact on his Guidelines range.” Id. Because 

Rivera-Cruz’s first argument lacks merit, we will affirm.

In many cases, a defendant’s Guidelines range serves 

as the “foundation” of the ultimate sentencing decision.

Koons, 138 S. Ct. at 1789 (citation omitted). In some cases, 

however, the Guidelines themselves “call for the ranges to be 

tossed aside.” Id. at 1788. “When that happens—when the 

range[] play[s] no relevant part in the judge’s determination 

of the defendant’s ultimate sentence—the resulting sentence 

is not ‘based on’ a Guidelines range.” Id. (quoting 18 U.S.C.

§ 3582(c)(2)). That’s what happened in Koons, where five 

petitioners were denied sentence reductions because their 

offenses carried a statutory minimum penalty that exceeded 

the top end of their Guidelines ranges. Id. at 1787–88.1

Having “dropped out of the case,” the displaced Guidelines 

 1 See also USSG § 1B1.1(a)(8) (directing courts, after 

calculating a Guidelines range according to § 1B1.1(a)(1)–

(7), to apply, among other provisions, § 5G1.1(b), which in 

turn requires the calculated range to be replaced by an 

applicable mandatory minimum when the minimum exceeds 

the top of the range).
7

ranges “could not come close to forming the basis for the 

sentence that the District Court imposed.” Id. at 1788

(internal quotation marks and citation omitted). Because the 

Guidelines ranges did not play “a relevant part in the 

framework the sentencing judge used in imposing the 

sentence,” the Sentencing Commission’s subsequent decision 

to lower those ranges did not make the petitioners eligible for 

a sentence reduction under § 3582(c)(2). Id. at 1788–89

(alterations, internal quotation marks, and citation omitted).

Unlike Koons, this appeal involves a statutory 

maximum instead of a statutory minimum. That distinction is 

immaterial for purposes of the present inquiry, however. 

Using parallel language, the Guidelines call for a defendant’s 

initial sentencing range to be replaced with the statutory 

maximum in the same way a range is replaced by a statutory 

minimum. In both cases, USSG § 1B1.1(a)(8) instructs courts 

to apply § 5G1.1, among other provisions, after calculating an 

initial range. In turn, § 5G1.1 provides that “[w]here the 

statutorily authorized maximum sentence is less than the 

minimum of the applicable guideline range, the statutorily 

authorized maximum sentence shall be the guideline 

sentence,” id. § 5G1.1(a), just as it provides in the next 

paragraph that “[w]here a statutorily required minimum 

sentence is greater than the maximum of the applicable 

guideline range, the statutorily required minimum sentence 

shall be the guideline sentence,” id. § 5G1.1(b). Like a range

that falls entirely below a statutory minimum, a range (such as 

Rivera-Cruz’s) that falls entirely above a statutory maximum 

will typically “drop[] out of the case.” Koons, 138 S. Ct. at 

1788. And once out of the case, it cannot form the basis of the 

sentence. See id.; see also United States v. Mateo, 560 F.3d 

152, 155 (3d Cir. 2009) (interpreting “sentencing range” as 
8

used in § 3582(c)(2) to refer to “the end result of the overall 

guideline calculus, not the series of tentative results 

reached . . . in the performance of that calculus” (citation 

omitted)). For that reason, Rivera-Cruz was not sentenced 

“based on” a Guidelines range that was subsequently lowered 

by the Sentencing Commission.2

Rivera-Cruz resists this conclusion by attempting to 

show that, notwithstanding the statutory maximum, the 

District Court based his sentence on his initial Guidelines 

range. In other words, he argues, that range did not actually

“drop[] out of the case” after it was displaced. Koons, 138 S. 

Ct. at 1788. He emphasizes that when it departed downward 

five levels, the District Court explicitly referred to his initial 

Guidelines calculation, and that once the Court settled on a 

new range, it sentenced him to the bottom of that range—not 

the 215-month sentence the Government recommended in its 

substantial assistance motion. He concedes that if the District 

Court had instead used his statutory maximum as the starting 

point for its departure, he would be ineligible for § 3582(c)(2)

 2 Koons also makes clear that the District Court’s 

downward departure was unrelated to Rivera-Cruz’s initial 

Guidelines range, and therefore does not serve as a basis for 

§ 3582(c)(2) eligibility. See 138 S. Ct. at 1789. A court’s 

consideration of a substantial assistance motion is based not 

on the initial Guidelines range, but rather on the court’s 

evaluation of the defendant’s assistance. Id.; see

§ 5K1.1(a)(1)–(5) (listing factors a court may consider, 

including “the significance and usefulness of the defendant’s 

assistance” and the “truthfulness, completeness, and 

reliability of any information or testimony provided”). 
9

relief. But he claims “that’s not this case.” Rivera-Cruz 

Br. 15. 

We do not share Rivera-Cruz’s interpretation of the 

District Court’s decisionmaking process. The District Court 

did return to Rivera-Cruz’s initial Guidelines calculation

before announcing its sentencing decision. But it did so for a

limited purpose: to determine the number of offense levels by 

which to depart downward. By necessity, that determination 

began with Rivera-Cruz’s initial offense level. But the 

District Court explained that its decision to express RiveraCruz’s departure in terms of offense levels—rather than 

simply departing from the statutory maximum by a certain 

number of months—was based on this Court’s precedent, not 

a reconsideration of Rivera-Cruz’s initial Guidelines range. 

Indeed, the District Court noted that its downward departure 

aligned with the Government’s recommendation of 215 

months’ imprisonment, which fell near the midpoint of 

Rivera-Cruz’s new range. The Government’s 215-month 

recommendation, in turn, was based expressly on the 240-

month statutory maximum. Rivera-Cruz’s initial Guidelines 

range thus did not figure substantively into the District 

Court’s departure determination. Consequently, the Court’s 

ultimate decision to sentence Rivera-Cruz to 188 months’ 

imprisonment—the bottom of his post-departure range—is 

equally untethered from his initial Guidelines calculation. In 

context, therefore, the District Court’s reference to RiveraCruz’s initial Guidelines range did not revive it as “a relevant 

part [of] the framework” governing the sentencing decision. 

Koons, 138 S. Ct. at 1788. 

For these reasons, Rivera-Cruz’s sentence was not 

“based on” his initial Guidelines range, and the Sentencing 

Commission’s lowering of that range by Amendment 782 did 
10

not make Rivera-Cruz eligible for a sentence reduction under 

18 U.S.C. § 3582(c)(2). Because the statute precludes relief 

where a sentence is not “based on” a lowered Guidelines 

range, we need not resolve, as the District Court did, whether 

Amendment 782 “ha[d] the effect of lowering” Rivera-Cruz’s 

“applicable guideline range.” USSG § 1B1.10(a)(2)(B).

* * *

Like the petitioners in Koons, Rivera-Cruz received a 

sentence “based on” a statutory requirement, not on a 

Guidelines range that was later lowered by the United States 

Sentencing Commission. Rivera-Cruz was therefore ineligible 

for a sentence reduction under 18 U.S.C. § 3582(c)(2). 

Accordingly, we will affirm.