2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-30-2009

USA v. John Doe

Precedential or Non-Precedential: Precedential

Docket No. 08-3968

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. John Doe" (2009). 2009 Decisions. Paper 1417.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1417
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-3968

No. 08-4028

_____________

UNITED STATES OF AMERICA

v.

JOHN DOE,

 Appellant in 08-3968

____________

UNITED STATES OF AMERICA

v.

JANE DOE,

 Appellant in 08-4028

____________

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D.C. Nos. 05-cr-00547-002; 05-cr-00547-003)
2

District Judge: Honorable Anita B. Brody

____________

Argued January 7, 2009

____________

Before: FUENTES, FISHER and ALDISERT, Circuit Judges

(Filed: April 30, 2009) 

Maureen Kearney Rowley

David L. McColgin

Sarah S. Gannett (Argued)

Federal Community Defender Office

For the Eastern District of Pennsylvania

Suite 540 West - Curtis Center

601 Walnut Street

Philadelphia, PA 19106

Counsel for Appellants

Laurie Magid

Robert A. Zauzmer

Bernadette A. McKeon (Argued)

Joseph Whitehead, Jr.

Office of the United States Attorney

Suite 1250

615 Chesnut Street

Philadelphia, PA 19106

Counsel for Appellee
 The Appellants’ unopposed motion to proceed under 1

pseudonym was granted on January 7, 2009. 

3

 

OPINION OF THE COURT

 

ALDISERT, Circuit Judge.

The Appellants, John and Jane Doe, appeal the 1

Eastern District of Pennsylvania’s denial of their 18 U.S.C. §

3582(c)(2) motions for reduction of sentence. On February 1,

2007, both Appellants pled guilty to conspiracy to distribute,

and distribution of, crack cocaine. The Appellants were

granted significant substantial-assistance departures below

both their statutorily required minimums and below their preamendment Guideline ranges. After the United States

Sentencing Commission passed Amendment 706, which

lowered the U.S.S.G. § 2D1.1 base offense levels for most

quantities of crack cocaine by two levels, the Appellants

moved the District Court to further reduce their sentences. 

The District Court denied their motions. On appeal, the

Appellants argue that the District Court erred in denying their

motions because: 1) they were sentenced to a term of

imprisonment that was, at least in part, based on a sentencing

range that has subsequently been lowered; 2) the applicable

policy statement, found at U.S.S.G. § 1B1.10, is in conflict

with the plain text of § 3582(c)(2); 3) the District Court
 The District Court had jurisdiction pursuant to 18 2

U.S.C. § 3231. This Court has jurisdiction pursuant to 18 U.S.C.

§ 1291. This Court exercises plenary review over a district

court’s interpretation of a provision of law. United States v.

Wood, 526 F.3d 82, 85 (3d Cir. 2008).

4

misconstrued U.S.S.G. § 1B1.10; 4) U.S.S.G. § 1B1.10 is

merely advisory after Booker v. Washington, 543 U.S. 220

(2005); and 5) the District Court failed to weigh the equities

and consider the rule of lenity in its decision. We will affirm.2

I.

John and Jane Doe each pled guilty to one count of

conspiracy to distribute crack cocaine (21 U.S.C. § 846) and

one count of distribution of crack cocaine (21 U.S.C. §

841(a)(1)), and entered into cooperation plea agreements with

the government. John Doe’s U.S.S.G. § 2D1.1 base offense

level for these convictions was 34. He received a two-level

increase for his role in the offense, and a three-level reduction

for acceptance of responsibility, resulting in a total adjusted

offense level of 33. His criminal history was category II.

Accordingly, this produced a Guidelines sentencing range of

151-188 months of imprisonment. John Doe, however, was

also subject to a statutory mandatory minimum sentence of

life in prison because of prior drug convictions. As the

mandatory minimum sentence exceeded the Guidelines range,

the mandatory minimum became the Guidelines sentence,
 “Where a statutorily required minimum sentence is 3

greater than the maximum of the applicable guideline range, the

statutorily required minimum sentence shall be the guideline

sentence.” U.S.S.G. § 5G1.1(b). 

5

pursuant to U.S.S.G. § 5G1.1. 

3

This mandatory minimum Guidelines sentence was not

applied to John Doe, however, because of substantial

assistance he provided to the government. The government

moved for a downward departure from the mandatory

minimum sentence pursuant to 18 U.S.C. § 3553(e) and from

the Guidelines range pursuant to U.S.S.G. § 5K1.1. The

District Court ultimately sentenced John Doe, on August 16,

2007, to 84 months imprisonment, a sentence well below both

the mandatory minimum Guidelines sentence and the

otherwise applicable Guidelines range. 

Jane Doe’s U.S.S.G. § 2D1.1 base offense level for

these convictions was 34. She received a three-level reduction

for acceptance of responsibility, resulting in a total adjusted

offense level of 31. Her criminal history was category II.

Accordingly, this produced a Guidelines sentencing range of

121-151 months of imprisonment. Jane Doe, however, was

also subject to a statutory mandatory minimum sentence of

twenty years, due to a prior drug conviction. As the

mandatory minimum sentence exceeded the Guidelines range,

the mandatory minimum became the Guidelines sentence,

pursuant to U.S.S.G. § 5G1.1.
6

This mandatory minimum Guidelines sentence was not

applied to Jane Doe, however, because, like John Doe, she

yielded substantial assistance to the government. The

government moved for a downward departure from the

mandatory minimum sentence pursuant to § 3553(e) and from

the Guidelines range pursuant to U.S.S.G. § 5K1.1. The

District Court ultimately sentenced Jane Doe, on May 17,

2007, to 41 months imprisonment, a sentence well below both

the mandatory minimum Guidelines sentence and the

otherwise applicable Guidelines range. 

On November 1, 2007 – subsequent to the Appellants’

sentencings – the United States Sentencing Commission

passed Amendment 706, which changed U.S.S.G. § 2D1.1 by

lowering the base offense levels for most quantities of crack

cocaine by two levels. See U.S.S.G. Supp. to App. C. amend.

706. On December 11, 2007, the Sentencing Commission

made Amendment 706 retroactive by including it in the list of

retroactive amendments in § 1B1.10(c) of the Guidelines.

U.S.S.G. App. C. amend. 713.

Subsequently, both Appellants filed motions for

reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2).

Section 3582(c)(2) provides 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, the

court may reduce the term of imprisonment if such a

reduction is consistent with applicable policy statements

issued by the Sentencing Commission. The District Court
7

applied § 3582(c)(2) and found that a sentence reduction was

not consistent with the applicable policy statements issued by

the Sentencing Commission. The District Court therefore

denied the Appellants’ motions on September 15, 2008. 

II.

In 18 U.S.C. § 3582(c), Congress mandated that courts

“may not modify a term of imprisonment once it has been

imposed.” Congress did provide exceptions to this general

rule, one of which, § 3582(c)(2), provides,

[I]n 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. 984(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). 

As the District Court correctly identified, a defendant
8

is eligible for a sentence reduction under § 3582(c)(2) only

when two elements are satisfied: First, the defendant must

have been “sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the

Sentencing Commission;” and second, the sentence reduction

must be “consistent with applicable policy statements issued

by the Sentencing Commission.” If a defendant fails to

satisfy both requirements, a district court lacks jurisdiction to

consider a sentence reduction. We agree with the District

Court that the Appellants fail to satisfy the second

requirement, and we decide this case solely on that ground.

The Sentencing Commission’s policy statements

regarding § 3582(c)(2) are set forth in U.S.S.G. § 1B1.10. See

U.S.S.G. § 1B1.10 cmt. background. U.S.S.G. § 1B1.10(a)(2)

provides:

A reduction in the defendant’s term of

imprisonment is not consistent with this policy

statement and therefore is not authorized under

18 U.S.C. § 3582(c)(2) if –

(A) None of the amendments listed in

subsection (c) is applicable to the

defendant; or

(B) An amendment listed in subsection

(c) does not have the effect of lowering

the defendant’s applicable guideline
9

range. 

U.S.S.G. § 1B1.10(a)(2). 

Amendment 706 is listed in subsection (c). Although

Amendment 706 would have lowered John Doe’s initial

sentencing range calculated under U.S.S.G. § 5A (the

sentencing table) from 151-188 months to 121-151 months,

and Jane Doe’s initial sentencing range from 121-152 months

to 97-121 months, the amendment did not lower either of the

Appellants’ mandatory minimum sentences. The District

Court correctly identified the flashpoint of controversy:

Thus, the critical issue is whether the term

“applicable guideline range” in §

1B1.10(a)(2)(B) refers to [the Appellants’]

initial sentencing range . . . calculated under §

5A or [the Appellants’] guideline sentence of

[life imprisonment or twenty years,

respectively] calculated under § 5G1.1(b). 

As we explain below, the term “applicable guideline

range” in § 1B1.10(a)(3)(B) refers to the Appellants’

Guideline sentences as set by the statutory mandatory

minimum. As the Appellants’ mandatory minimum sentences

were not affected by Amendment 706, the Appellants are

ineligible for a sentence reduction. 
10

III.

The Appellants advance six arguments on appeal,

which we consider seriatim. First, the Appellants argue that

their downward departures for substantial assistance to the

government were, at least in part, “based on” the nowamended crack cocaine guidelines.

As discussed above, the District Court held, and we

agree, that deciding this case solely on the second element of

§ 3582(c)(2) is appropriate and we therefore decline to

address the Appellants’ “based on” argument. 

IV.

 Second, the Appellants argue that by requiring an

amendment to “have the effect of lowering a defendant’s

applicable guideline range,” the policy statement of U.S.S.G.

§ 1B1.10(a)(2) implicitly redefines the § 3582(c)(2) term

“based on” and that the District Court’s interpretation of §

1B1.10(a)(2) assumes that a sentence may be “based on” only

one thing, in this case the mandatory minimum. The

Appellants contend that this narrow interpretation of the

policy statement conflicts with the broader terms and

congressional intent of § 3582(c)(2) and therefore must be

rejected. See Stinson v. United States, 508 U.S. 36, 45 (1993)

(holding that the Sentencing Guidelines commentary is

analogous to an agency’s interpretation of its own legislative

rule, and therefore is “authoritative unless it violates the
11

Constitution or a federal statute”). 

Specifically, the Appellants argue that a statute must be

read with its ordinary meaning in mind. See United States v.

Geiser, 527 F.3d 288, 294 (3d Cir. 2008) (“When determining

a statute’s plain meaning, our starting point is ‘the ordinary

meaning of the words used.’”). As the word “basis” has

multiple meanings, including “a supporting layer or part,” the

Appellants argue that § 3582(c)(2) does not require that the

subsequently lowered sentencing range be the sole or even the

primary basis for the sentence.

Although there is often no one basis for a criminal

sentence, the Appellants misread the District Court’s opinion.

The plain language of § 3582(c)(2) requires that a sentence

reduction be “consistent with applicable policy statements

issued by the Sentencing Commission.” § 3582(c)(2). The

plain language of the statute, therefore, specifically

incorporates the Commission’s policy statements, including

the policy statement requiring that the amendment have the

effect of lowering the defendants’s applicable Guideline

range. U.S.S.G. § 1B1.10(a)(2). Additionally, 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 may be reduced.” §

994(u). See also Braxton v. United States, 500 U.S. 344, 348

(1991) (citing § 994(u) and holding that “Congress has
12

granted the Commission the unusual explicit power to decide

whether and to what extent its amendments reducing

sentences will be given retroactive effect). Under the express

statutory language of § 3582(c)(2) and § 994(u), the

Commission’s policy statements implementing retroactive

sentence reduction are binding. 

Not only did Congress intend to incorporate the

Commission’s policy statements into § 3582(c)(2), but the

policy statement and § 3582(c)(2) are complementary. The

first prong of § 3582(c)(2) requires that a defendant have been

sentenced based on a sentencing range that has subsequently

been lowered. The policy statement requires that the

amendment must have actually had the effect of lowering the

Guideline range. Although the policy statement is narrower, it

certainly does not run contrary to § 3582(c)(2). 

V.

Third, the Appellants argue that term “applicable

guideline range” in U.S.S.G. § 1B1.10(a)(2) refers to the

appellants’ initial Guideline ranges, which were subsequently

lowered by Amendment 706, and not their mandatory

minimum sentences, which were not affected by the

amendment. We disagree. Both the Guideline language and

Third Circuit precedent require otherwise. 

Both the language and structure of the Guidelines lead

to the conclusion that “applicable guideline range” in §
13

1B1.10(a)(2)(B) refers to the Appellants’ Guideline sentence,

calculated under § 5G1.1(b). First, U.S.S.G. § 1B1.1, the

Commission’s general instruction on how to apply the

Guidelines, specifies that applying a mandatory sentence

pursuant to § 5G1.1(b) is the last step in determining the

Appellants’ applicable Guideline sentence. The Sentencing

Commission directs courts to apply the Guideline provisions

in a specific order. First, a court determines the Guideline

range. U.S.S.G. § 1B1.1(g). Then, a court calculates the

Guideline sentence under chapter five of the Guidelines.

U.S.S.G. § 1B1.1(h). This includes the calculation of the

statutory mandatory minimums for both the Appellants under

§ 5G1.1(b). Therefore, as the District Court held, the

calculation of the statutory mandatory minimum under §

5G1.1(b), not that of the initial Guideline range under § 5A,

was the final step in determining the Appellants’ applicable

Guideline ranges. Moreover, the language of § 5G1.1(b) itself

requires this result. It provides “[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.” U.S.S.G. §

5G1.1(b). 

In addition to taking guidance from the Guideline

language, we addressed this issue in United States v. Cordero.

In Cordero, the defendant pled guilty to various drug-related

offenses. 313 F.3d 161, 162 (3d Cir. 2002). The applicable

Guideline range for the defendant was 63-78 months, but the

defendant was subject to a mandatory minimum of 120
14

months. After granting the government’s motion for a

downward departure pursuant to U.S.S.G. § 5K1.1 and 18

U.S.C. § 3553(e), the district court sentenced the defendant to

86 months imprisonment. The district court used the 120

month mandatory minimum, rather than the otherwise

applicable Guideline range, as the starting point for granting

the downward departure. The defendant appealed, arguing

that the district court should have applied the departure to the

63-78 month Guideline range, rather than the 120 month

mandatory minimum. 

The Cordero court held that in such a situation the

mandatory period of incarceration is not waived, but rather

“subsumes and displaces the otherwise applicable guideline

range and thus becomes the starting point for any departure or

enhancement that the sentencing court may apply in

calculating the appropriate sentence under the guidelines.”

Cordero, 313 F.3d at 166. Although Cordero addresses the

appropriate starting point for a downward departure rather

than the interpretation of § 3582(c)(2), its reasoning is

instructive. The rationale of Cordero requires that the term

“applicable guideline range” in § 1B1.10(a)(2) refer to the

Appellants’ Guideline sentences as calculated under §

5G1.1(b) because that sentence subsumed and replaced their

initial sentencing ranges calculated under § 5A. Although the

Appellants’ initial Guideline ranges were lowered by

Amendment 706, their initial ranges are no longer applicable

because the Appellants were subject to a mandatory

minimum. The initial ranges have been subsumed.
15

Accordingly, Amendment 706 does not have the effect of

lowering the Appellants’ applicable Guideline ranges because

the mandatory minimums were unaffected by Amendment

706. 

The Guidelines’ Application Notes to § 1B1.10 also

support this reasoning: 

[A] reduction in the defendant’s term of

imprisonment is not authorized under 18 U.S.C.

§ 3582(c)(2) and is not consistent with this

policy statement if . . . an amendment listed in

subsection (c) is applicable to the defendant but

the amendment does not have the effect of

lowering the defendant’s applicable guideline

range because of the operation of another

guideline or statutory provision (e.g., a

statutory mandatory minimum term of

imprisonment). 

U.S.S.G. § 1B1.10 cmt. 1(A) (emphasis added). See also

United States v. Poole, 550 F.3d 676, 679 (7th Cir. 2008)

(“The Application Note confirms that Amendment 706 does

not have the effect of lowering [the defendant’s] guideline

range because the range applicable to her by operation of law

was the statutory minimum term.”); United States v. Williams,

551 F.3d 182, 186 (2d Cir. 2009) (“We are bound by the

language of [U.S.S.G. § 1B1.10, application note 1] because

Congress has made it clear that a court may reduce the terms
16

of imprisonment under § 3582(c) only if doing so is

‘consistent with applicable policy statements issued by the

Sentencing Commission.’”); United States v. Johnson, 517

F.3d 1020, 1024 (8th Cir. 2008) (same).

In essence, the Appellants’ argument turns on the

relationship between “applicable guideline range” and

“guideline sentence.” U.S.S.G. § 5G1.1(b) requires that a

mandatory minimum greater than the applicable Guideline

range shall be the Guideline sentence and § 1B1.10(a)(2)(B)

excludes a reduction if an amendment does not have the effect

of lowering a defendant’s applicable guideline range. The

Appellants argue that the term “applicable guideline range”

cannot refer to the Guideline sentence because the Guidelines

create a distinction between the terms. The simplicity of this

argument is appealing, but nevertheless it is dispelled by the

clear import of the § 1B1.1 order for sentence determination,

the language of § 5G1.1(b), the commentary to § 1B1.10 and

our holding in Cordero. 

The key term is “applicable” Guideline range, rather

than “initial” Guideline range. Because the Appellants’

mandatory minimum sentences under § 5G1.1(b) subsumed

and displaced their initial Guideline ranges, the applicable

Guideline range for purposes of § 1B1.10(a)(2)(B) must be

the Appellants’ mandatory minimum sentences, which were

not affected by Amendment 706. See also United States v.

Moore, 541 F.3d 1323, 1330 (11th Cir. 2008) (holding that a

defendant is not eligible for resentencing under § 3582(c)(2)
17

where “a retroactively applicable guideline amendment

reduces a defendant’s base offense level, but does not alter the

sentencing range upon which his or her sentence was based”).

VI.

Fourth, the Appellants argue that the District Court

erred in treating the Sentencing Commission’s policy

statements as binding after United States v. Booker. In

Booker, the Supreme Court re-affirmed that the Sixth

Amendment is violated by the imposition of an enhanced

sentence under the United States Sentencing Guidelines based

on the sentencing judge’s determination of a fact (other than a

prior conviction) that was not found by the jury or admitted by

the defendant. 543 U.S. at 229, 244. The Court concluded that

this constitutional holding was incompatible with the

mandatory nature of the Sentencing Guidelines and remedied

the defect by severing the statutory provisions that made the

Guideline range mandatory. Id. at 245; see Gall v. United

States, 128 S. Ct. 586, 594 (2007). 

Nowhere in Booker did the Supreme Court mention §

3582(c)(2). Because § 3582(c)(2) proceedings may only

reduce a defendant’s sentence and not increase it, the

constitutional holding in Booker does not apply to §

3582(c)(2). See Booker, 543 U.S. at 244. Additionally, the

remedial holding in Booker invalidated only 18 U.S.C. §

3553(b)(1), which made the Sentencing Guidelines mandatory

for full sentencings, and § 3742(e), which directed appellate
18

courts to apply a de novo standard of review to departures

from the Guidelines. Therefore, Booker “applies to full

sentencing hearings – whether in an initial sentencing or in a

resentencing where the original sentence is vacated for error,”

but not to sentence modification proceedings under §

3582(c)(2). United States v. Dunphy, 551 F.3d 247, 253 (4th

Cir. 2009); see also United States v. McBride, 283 F.3d 612,

615 (3d Cir. 2002) (citing United States v. Faulks, 201 F.3d

208, 210 (3d Cir. 2000)) (distinguishing a “full resentencing”

from a reduction of sentence under § 3582(c)(2)). Not only

are sentence modification proceedings sanctioned under a

different section of the statute than those at issue in Booker,

but the Booker court held that “[w]ith these two sections

excised (and statutory cross-references to the two sections

consequently invalidated), the remainder of the Act satisfies

the Court’s constitutional requirements.” Booker, 543 U.S. at

259. “Section 3582(c)(2) contains no cross-reference to §

3553(b) and therefore was not affected by Booker. Nor is

there anything else in Booker that directly addresses § 3582(c)

proceedings.” Dunphy, 551 F.3d at 253; see also United

States v. Rhodes, 549 F.3d 833, 839-840 (10th Cir. 2008)

(holding that Booker’s remedial holding does not operate on §

3582(c)(2) and that Sentencing Commission Policy

Statements are binding on district courts pursuant to §

3582(c)(2)) . 

In addition, this Court has previously rejected the

notion that Booker renders the Guidelines advisory for

purposes of § 3582(c)(2). In United States v. Wise, the
19

defendants were convicted and sentenced for a crack offense

before Amendment 706 became retroactive. 515 F.3d at 221.

U.S.S.G. § 1B1.10 provides that a reduction under §

3582(c)(2) is not authorized unless the amendment is

currently retroactive. The defendants in Wise argued that

because the Guidelines were no longer mandatory, they need

not wait for Amendment 706’s retroactivity to apply to seek

relief under § 3582(c)(2). This Court said,

That fundamentally misunderstands the limits of

Booker. Nothing in that decision purported to

obviate the congressional directive on whether a

sentence could be reduced based on subsequent

changes in the Guidelines. As we have stated

before, ‘[t]he language of the applicable

sections could not be clearer: the statute directs

the Court to the policy statement, and the policy

statement provides that an amendment not listed

in subsection (c) may not be applied

retroactively pursuant to 18 U.S.C. §

3582(c)(2).’

Id. at 221 n.11 (citing United States v. Thompson, 70 F.3d

279, 281 (3d Cir. 1995)). 

Although Wise considered the mandatory nature of the

Guidelines in a slightly different context, its reasoning is

entirely applicable here. Nothing in Booker purported to
20

obviate the congressional directive in § 3582(c)(2) that a

sentence reduction pursuant to that section be consistent with

Sentencing Commission policy statements. The language of §

3582(c)(2) could not be clearer: the statute predicates

authority to reduce a defendant’s sentence on consistence with

the policy statement, and the policy statement provides that a

reduction is not consistent if the amendment does not have the

effect of lowering the defendant’s applicable Guideline range.

“The Guidelines are no longer mandatory, but that does not

render optional” statutory directives. Id. at 220. 

Admittedly, the Ninth Circuit, in United States v.

Hicks, held that Booker abolished the mandatory application

of the Sentencing Guidelines in all contexts. 472 F.3d 1167,

1169 (9th Cir. 2007). We, however, associate ourselves with

the reasoning of the Tenth, Eighth, and Fourth Circuits in

rejecting Hicks.

“The problem with the Hicks decision, in our

view, is that it failed to consider that . . .

sentence modification proceedings have a

different statutory basis than original sentencing

proceedings. As a result, the Ninth Circuit

erroneously concluded that the remedial portion

of the Booker decision, which rendered the

guidelines effectively advisory for purposes of

original sentencing proceedings, applied to §

3582(c)(2) proceedings as well.” 
21

Rhodes, 549 F.3d at 841. See also United States v. Starks, 551

F.3d 839, 841-842 (8th Cir. 2009) (disagreeing with Hicks

and concurring with Rhodes that sentence modification

proceedings have a different statutory basis than original

sentencing proceedings); Dunphy, 551 F.3d at 254 (“We find

the Hicks analysis to be flawed because it fails to consider

two marked characteristics of a § 3582(c)(2) proceeding . . . :

(1) this proceeding allows only for downward adjustment and

(2) this proceeding is not a full resentencing hearing.”). 

Because U.S.S.G. § 1B1.10 is binding on the District

Court pursuant to § 3582(c)(2), the District Court correctly

concluded that it lacked the authority to further reduce the

Appellants’ sentences. 

VII.

Fifth, the Appellants argue that the District Court

opinion compels patently absurd and unfair results.

Specifically, the Appellants argue that: 1) defendants subject

to a mandatory minimum, but with higher offense levels or

criminal levels that boost their applicable Guideline range

above the mandatory minimum, would be eligible for a §

3582(c)(2) reduction, while an offender with a lower criminal

history level or lower offense level, whose Guideline range is

less than the mandatory minimum, would not be eligible for

relief; 2) defendants who plead guilty and cooperate with the

government will not be entitled to the benefit of the amended
22

Guideline range; and 3) substantial assistance departures

reward assistance, but do not address the crack/powder

cocaine disparity and therefore fail to remedy that injustice.

We find the Appellants’ arguments unpersuasive because they

ignore Cordero and the clear statutory directive of §

3582(c)(2).

VIII.

Finally, the Appellants argue that the District Court

erred in denying their motions for sentence modification by

failing to apply the rule of lenity. In interpreting an

ambiguous criminal statute, the court should resolve the

ambiguity in the defendant’s favor. See United States v.

Introcaso, 506 F.3d 260, 261 (3d Cir. 2007). The rule of

lenity applies in “those situations in which a reasonable doubt

persists about a statute’s intended scope even after resort to

‘the language and structure, legislative history, and motivating

policies’ of the statute.” United States v. R.L.C., 503 U.S.

291, 305-306 (1992) (citations omitted). The rule is not

properly invoked simply because a statute requires

consideration and interpretation to confirm its meaning.

Muscarello v. United States, 524 U.S. 125, 138 (1998). It

applies only if there is such “grievous ambiguity or

uncertainty” in a statute that, “after seizing everything from

which aid can be derived, [the Court] can make no more than

a guess as to what Congress intended.” Id. at 139 (internal

quotation marks, citations and ellipsis omitted). See also
23

Steele v. Blackman, 236 F.3d 130, 133 (3d Cir. 2001)

(“Where the language of a statute is clear . . . the text of the

statute is the end of the matter.”). 

In this case, the phrases “based on” and “the effect of

lowering the defendant’s applicable guideline range” need to

be interpreted, but consideration of the language structure,

subject matter, context and history of § 3582(c)(2) and

U.S.S.G. § 1B1.10(a)(2) establishes that they do not contain

such an ambiguity that the Court can make no more than a

guess as to what Congress intended. 

IX.

In providing that sentence reductions must be

consistent with applicable Sentencing Commission policy

statements, § 3582(c)(2) creates a jurisdictional bar to

sentence modification when a retroactive amendment does not

have the effect of lowering the Guideline sentence. As

Amendment 706 did not have the effect of lowering the

Appellants’ mandatory minimum sentences under § 5G1.1(b),

the Appellants fail to satisfy the second element of §

3582(c)(2) and are therefore ineligible for a sentencing

reduction under that section. The decision of the District

Court will be affirmed. 
 We are alone in this approach; all other circuits to have 1

addressed the issue have held that the maximum extent of a

substantial assistance departure may be based only on the

defendant’s substantial assistance. See United States v. Desselle,

450 F.3d 179, 182 & n.1 (5th Cir. 2006) (and cases cited

-1-

Fuentes, Circuit Judge, concurring:

I concur in Judge Aldisert’s well-crafted and thorough

opinion. However, I write separately to note that our

interpretation of U.S.S.G. § 1B1.10 implicitly rests on the

assumption that there can be only one guideline range applicable

to a defendant. For the reasons that follow, I am not sure that

assumption is correct. 

The key question in interpreting § 1B1.10(a)(2)(B) is

what “the defendant’s applicable guideline range” is where a

defendant, subject to a statutory mandatory minimum, receives

a downward departure below that minimum based on his or her

substantial assistance to the government. The term “applicable”

is an expansive one: the plain meaning of “to apply” is “to put

to use” or “to bring into action.” Merriam Webster’s Collegiate

Dictionary 57 (10th ed. 1996). There is no dispute that the

District Court did indicate that it was using the Does’ § 5A

Guidelines ranges in deciding the extent of their substantial

assistance departures. Moreover, that approach was permissible

under our precedent, which allows a district court to consider the

seriousness of a defendant’s offense—often reflected in the §

5A Guidelines range—in determining the extent of a substantial

assistance departure. See United States v. Casiano, 113 F.3d

420, 431 (3d Cir. 1997).1
therein) (holding that the magnitude of a substantial assistance

departure may reflect only “assistance-related concerns”).

Accordingly, other circuits have held defendants like the Does

to be ineligible for resentencing because their original

Guidelines ranges cannot be applied in determining the size of

a substantial assistance departure. See, e.g., United States v.

Williams, 551 F.3d 182 (2d Cir. 2009) (refusing to allow the

resentencing of a defendant under § 1B1.10 where the defendant

had received a substantial assistance departure from a mandatory

minimum sentence). However, that divergence in the application

of § 1B1.10 is simply the inevitable result of a difference in our

sentencing doctrine. See United States v. McGee, 553 F.3d 225,

228 n.2 (2d Cir. 2009) (acknowledging that the holding in

Williams was predicated on the Second Circuit’s rule that the

maximum extent of a substantial assistance departure may not

take into account anything besides the defendant’s substantial

assistance to the government).

The applicability of a sentencing range other than the 2

mandatory minimum is even more noticeable in the not

uncommon circumstance where a district court specifically

-2-

Therefore, the plain meaning of § 1B1.10 would suggest

that John and Jane Doe are eligible for resentencing because

their original Guidelines ranges were applied in calculating their

original sentences and those ranges were subsequently lowered

by the crack cocaine amendment. Such a result makes sense

since the District Court might indeed have granted a greater

departure had it had the benefit of the modified Guidelines

ranges at the time of the original sentencing. Cf. United States 2
departs by a certain number of offense levels.

 Notably, § 5G1.1(b) actually refers to the initial 3

sentence calculated under § 5A as “the applicable guideline

range.” While this by no means indicates that the initial

Guidelines range remains “applicable” if a sentencing judge

-3-

v. McGee, 553 F.3d 225, 228 (2d Cir. 2009) (“Since, from our

reading of the sentencing transcript, the district court sentenced

[the defendant] based on the crack cocaine guidelines and would

likely have considered a different sentence from the one

imposed if the applicable crack guidelines had so provided, we

think that [reading § 1B1.10 to bar resentencing] would lend

itself to excessive formalism.”). 

Judge Aldisert, by contrast, reasons that the original

Guidelines range could not have been the applicable guideline

range in this case because a mandatory minimum “subsumes and

displaces the otherwise applicable guideline range” initially

calculated under U.S.S.G. § 5A. United States v. Cordero, 313

F.3d 161, 166 (3d Cir. 2002); see also U.S.S.G. § 5G1.1(b).

However, Cordero, U.S.S.G. § 1B1.1, and § 5G1.1(b), the

authorities relied upon by the majority, describe the sentencing

procedure before the consideration of a substantial assistance

departure motion. U.S.S.G. § 1B1.1 and § 5G1.1(b) direct a

sentencing court to apply a mandatory minimum sentence rather

than the § 5A Guidelines range if the former is greater. Yet that

is not the final step of a sentencing where, as here, the District

Court has brought the initial Guidelines range back into the

picture in determining the extent of a downward departure from

that mandatory minimum. Similarly, Cordero stated that a 3
applies a mandatory minimum and stops there, it does suggest

that “applicable guideline range” is meant to be descriptive of

the reality of the sentencing process rather than a formal term

referring to the range that results after the application of §

1B1.1(h). The “applicable guideline range” may evolve as the

sentencing proceeds: prior to the steps described in § 1B1.1(h)

it is the § 5A range, after § 1B1.1(h) is followed it may be a

mandatory minimum, but after the calculation of applicable

departures under § 1B1.1(i) the term may expand to include a

range that is in fact part of the process of granting a departure.

-4-

mandatory minimum sentence “subsumes and displaces the

otherwise applicable guideline range” when § 5G1.1(b) is

applied “and thus becomes the starting point for any departure

or enhancement that the sentencing court may apply in

calculating the appropriate sentence under the guidelines.” 313

F.3d at 166 (emphasis added). While the mandatory minimum

is therefore the “starting point” for a substantial assistance

departure, Cordero says nothing as to whether the initial

Guidelines range may once again become applicable in the

process of determining the extent of a substantial assistance

departure.

Application Note 1(A) to § 1B1.10 is likewise irrelevant

here. Although it offers the example of “a statutory mandatory

minimum term of imprisonment” as a provision that might

operate to keep an amendment from “hav[ing] the effect of

lowering the defendant’s applicable guideline range,” it does not

speak to the case where the application of a statutory mandatory

minimum is followed by a substantial assistance departure.

See United States v. Sash, 396 F.3d 515, 523 (2d Cir. 2005)
-5-

(noting that “a Guideline may apply in situations not

contemplated by the background commentary to the Guideline,”

and in such cases “what matters is the plain language” of the

Guideline itself). 

Therefore, the majority’s construction of § 1B1.10 holds

only if it is read to allow for only a single “applicable guideline

range” and the mandatory minimum is deemed to be that range.

I ultimately concur in that interpretation, but for different

reasons than those cited by the majority. 

The plain language of the policy statement does suggest

that the Sentencing Commission envisioned only a single

applicable range given its reference to “the applicable guideline

range” rather than “an” applicable range. While the use of this

article might be a fairly weak sign of the Commission’s intent

on its own, the provision’s wording is bolstered by a potentially

reasonable justification for an approach that isolates a single

“applicable guideline range.” Were § 1B1.10 read to allow

resentencing any time any Guidelines range applied to a

defendant was subsequently reduced by a retroactive

amendment, it could open the door to resentencings where the

modified range played only the most tangential role in

determining the defendant’s sentence. If the Sentencing

Commission’s goal was indeed to avoid that result, the best

candidate for the Does’ “applicable” guideline ranges here

would seem to be their mandatory minimum sentences, as

Cordero does deem an applicable mandatory minimum to be the

“starting point” for the substantial assistance departure. 

This language is enough to prevent the application of the

rule of lenity, which would require us to construe § 1B1.10 in
-6-

favor of Appellants. As the Supreme Court has previously held

and recently confirmed, the rule of lenity is to be invoked only

in cases of “grievous ambiguity.” Huddleston v. United States,

415 U.S. 814, 831 (1974) (quoted in United States v. Hayes, 129

S. Ct. 1079, 1089 (2009)). Here, we have a specific sign of the

Sentencing Commission’s possible intent in its wording of the

policy statement, and may rely on that rather than a general rule

of statutory construction.

Still, § 1B1.10’s wording is a frail basis for an

interpretation that would produce the troubling result, verging

on absurd, of allowing worse defendants a chance at reduced

sentences while depriving less serious offenders of the same

opportunity. For example, a defendant with a Guidelines range

higher than the mandatory minimum because of an offense

involving a significant quantity of crack cocaine who received

a departure to below the minimum would be eligible for

resentencing under the District Court’s understanding of §

1B1.10, whereas a defendant with an initial Guidelines range

below the mandatory minimum because of an offense involving

a smaller quantity of crack would not get the same opportunity

even if he also received a departure to below the mandatory

minimum. (Appellants’ Br. 31.) Such consequences are

particularly unnecessary since the goal of confining

resentencings to cases where a subsequently lowered Guidelines

range played a significant role in the original sentence would be

equally well-served by a different method: even if a defendant

is deemed eligible for resentencing, district court judges may

simply use their discretion under § 1B1.10(b) to find a lower

sentence unmerited where the altered Guidelines range was only

remotely relevant in determining the defendant’s term of
-7-

imprisonment. 

Additionally, at least some of the Sentencing

Commission’s staff authored a study of the consequences of

applying Amendment 706 retroactively in which they assumed

that defendants who had received a substantial assistance

departure from a mandatory minimum would in fact be eligible

for resentencing. See Glenn Schmitt et al., Analysis of the

Impact of the Crack Cocaine Amendment If Made Retroactive

5-6 (2007), http://www.ussc.gov/research.htm (cited in United

States v. Williams, 549 F.3d 1337, 1340 (11th Cir. 2008)).

While I am unsure what weight to give this source, it does raise

some questions as to how the Commission intended § 1B1.10 to

be applied.

Finally, the majority does not differentiate the Does’

circumstances from those of another category of defendants

whom some courts have ruled eligible for resentencing under §

1B1.10: defendants who received departures under U.S.S.G. §

4A1.3(b) based on the sentencing judge’s determination that

their classification as career offenders represented an

overstatement of their criminal history. See, e.g., McGee, 553

F.3d 225; United States v. Poindexter, 550 F. Supp. 2d 578

(E.D. Pa. 2008); United States v. Ragland, 568 F. Supp. 2d 19

(D.D.C. 2008); see also U.S.S.G. § 1B1.1 cmt. n.1 (describing

both types of departures as methods for imposing sentences

“outside the applicable guideline range”). In both circumstances,

the mandated sentence is deemed inappropriate and the initial

Guidelines range may play a role in determining the proper

sentence, rendering it an “applicable” range.

Given these considerations, I express some discomfort
-8-

with our interpretation of § 1B1.10. While its language barely

favors the majority’s interpretation, I am unsure whether our

reading of the policy statement truly reflects the intent of its

drafters. Therefore, while I concur with my colleagues’ ultimate

conclusion that John and Jane Doe are ineligible for

resentencing, further guidance from the Sentencing Commission

on this question would not go amiss.