RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0164p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

GARRETT JOHNSON,

 Defendant-Appellant.

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No. 08-5667

Appeal from the United States District Court

for the Eastern District of Tennessee at Greeneville.

No. 03-00103-003—J. Ronnie Greer, District Judge.

Submitted: April 28, 2009

Decided and Filed: May 5, 2009 

Before: SILER, GILMAN, and KETHLEDGE, Circuit Judges. 

_________________

COUNSEL

ON BRIEF: Nikki C. Pierce, FEDERAL DEFENDERS SERVICES OF EASTERN

TENNESSEE, INC., Greeneville, Tennessee, for Appellant. Caryn L. Hebets, ASSISTANT

UNITED STATES ATTORNEY, Johnson City, Tennessee, for Appellee. 

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Garrett Johnson pled guilty to the charge

of conspiring to distribute crack cocaine. He faced a 240-month mandatory minimum

sentence, as required by statute, but the government moved the district court to grant a lower

sentence based on Johnson’s substantial assistance. The court granted the government’s

motion and sentenced Johnson to 108 months’ imprisonment.

Johnson subsequently filed a motion for a further reduction in his sentence based on

the retroactive revisions to the United States Sentencing Guidelines regarding crack-cocaine

1
No. 08-5667 United States v. Johnson Page 2

convictions. The district court denied Johnson’s motion, holding that it lacked jurisdiction

to consider this new ground because the sentence was imposed pursuant to the statutory

mandatory minimum for Johnson’s offense, not the subsequently amended Guidelines. For

the reasons stated below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

Johnson pled guilty to and was convicted of conspiring to distribute crack cocaine,

in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The Probation Office

prepared a Presentence Report using the 2003 version of the United States Sentencing

Guidelines. Based on a finding that the conspiracy involved at least 500 grams of crack

cocaine, but not more than 1.5 kilograms, his offense level was set at 36. That number, in

conjunction with Johnson’s Category III criminal history, resulted in a Guidelines range of

235 to 293 months. But Johnson was also subject to a mandatory minimum sentence of 240

months under 21 U.S.C. § 841(b)(1)(A), meaning that his effective Guidelines range was 240

to 293 months of imprisonment.

Prior to sentencing, the government filed a motion for a downward departure

pursuant to 18 U.S.C. § 3553(e). That section authorizes a district court to impose a

sentence below the statutory minimum based on a defendant’s substantial assistance. At the

October 2004 sentencing hearing, the court granted the three-level departure suggested in

the motion and sentenced Johnson to 108 months’ imprisonment. Johnson did not appeal.

Several years after Johnson’s sentencing, Amendment 706 to the Sentencing

Guidelines reduced the base offense level for most crack-cocaine offenses by two levels.

This caused Johnson to file a pro se motion in February 2008 that sought an additional

sentence reduction in light of the amended Guidelines. The district court appointed counsel

for Johnson and ordered the parties to file a joint motion regarding the potential applicability

of the retroactive amendment. Johnson and the government agreed that his amended base

offense level was 34, but differed on whether the amendment authorized the court to modify

the sentence.
No. 08-5667 United States v. Johnson Page 3

The government argued that because Johnson’s sentence was not based on a

Guidelines range lowered by Amendment 706, the court lacked jurisdiction to reduce it any

further. Johnson conceded that the amendment did not lower his Guidelines sentence, which

was set by the statutory mandatory minimum. But he claimed that the amendment did lower

his Guidelines range, and that a sentence reduction was accordingly authorized and

appropriate. Johnson also filed an amended motion for a sentence reduction and sought an

evidentiary hearing, which the government opposed.

In May 2008, the district court issued an order denying a further reduction of his

sentence. The court explained its reasoning as follows:

Neither the Guidelines, nor the statute, nor the applicable precedents

supports the defendant’s position and this Court is constrained to find, upon

the facts of this case and upon the plain language of § 3582(c), that this

Court does not have the authority to reduce defendant’s sentence. . . . The

defendant was subject to the mandatory term of imprisonment provided by

21 U.S.C. § 841(b)(1)(A) both before and after Amendment 706.

Accordingly, § 3582(c) does not authorize a reduction in his sentence.

Moreover, the court noted, Johnson’s sentence had been “determined not by reference to a

guideline range but rather to the statutory mandatory minimum sentence.” The court

concluded by clarifying that, even if it had jurisdiction to reduce Johnson’s sentence, it

would not have exercised its discretion to do so. Johnson timely appealed.

II. ANALYSIS

A. Statutory background

A district court may modify a defendant’s sentence only as provided by statute.

United States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001) (“The authority of a district court

to resentence a defendant is limited by statute” and is “expressly prohibit[ed] . . . beyond

those exceptions expressly enacted by Congress.”). Congress has provided that a district

court has the discretion to reduce a sentence based upon a change in the Sentencing

Guidelines affecting a defendant’s sentencing range in accordance with the relevant

Guidelines policy statement:

[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. 994(o), upon
No. 08-5667 United States v. Johnson Page 4

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).

In § 1B1.10 of the Guidelines, the Sentencing Commission has identified those

amendments that may be applied retroactively pursuant to the above policy statement and

has also articulated the proper procedures for implementing the amendment in a case already

concluded. On December 11, 2007, the Commission issued a revised version of § 1B1.10,

which emphasizes the limited nature of relief available under 18 U.S.C. § 3582(c). Revised

§ 1B1.10(a), which became effective on March 3, 2008, provides in pertinent part as follows:

(1) In General.—In a case in which a defendant is serving a term of

imprisonment, and the guideline range applicable to that defendant

has subsequently been lowered as a result of an amendment to the

Guidelines Manual listed in subsection (c) below, the court may

reduce the defendant’s term of imprisonment as provided by

18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any

such reduction in the defendant’s term of imprisonment shall be

consistent with this policy statement.

(2) Exclusions.—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

[§ 1B1.10](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 range.

U.S.S.G. § 1B1.10(a) (amended Dec. 11, 2007). In addition, § 1B1.10 directs that “the court

shall substitute only the amendments listed in subsection (c) for the corresponding guideline

provisions that were applied when the defendant was sentenced and shall leave all other

guideline application decisions unaffected.” U.S.S.G. § 1B1.10 (b)(1).

The amendment in question in this case is Amendment 706, effective November 1,

2007, which reduced the base offense level for most crack offenses. Amendment 706 was

further amended by the technical and conforming amendments set forth in Amendment 711,
No. 08-5667 United States v. Johnson Page 5

also effective November 1, 2007. Amendment 706 is one of the amendments listed in

§ 1B1.10(c) as having retroactive effect. U.S.S.G. § 1B1.10(c).

B. Application of Amendment 706 to Johnson

Johnson argues that the district court erred in concluding that it lacked jurisdiction

to reduce his sentence pursuant to 18 U.S.C. § 3582(e). He reasons that the retroactive

amendment regarding crack cocaine had the effect of lowering his applicable Guidelines

range from 235-293 months to 188-235 months. Although he concedes that he is subject to

the statutory mandatory-minimum term of 240 months, Johnson argues that the district court

never actually applied the mandatory minimum because it imposed a below-minimum, 108-

month sentence in response to the government’s motion pursuant to 18 U.S.C. § 3553(e).

In sum, Johnson contends that, “[b]ecause the guideline range has been reduced and the

sentence imposed was based upon a guideline range that has since been reduced, the district

court should have determined that it had authority to reduce the sentence.”

Johnson’s argument lacks merit because he was not in fact sentenced based on a

Guidelines range that was subsequently reduced. Rather, his sentence was based on the

mandatory minimum imposed by 21 U.S.C. § 841(b)(1)(A), which remained unchanged by

Guidelines Amendment 706. “Where a statutorily required minimum sentence is greater

than the maximum of the applicable guidelines range, the statutorily required minimum

sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b); accord United States v.

Goff, 6 F.3d 363, 366-67 (6th Cir. 1993) (“As the guidelines themselves recognize, where

a statutory mandatory minimum sentence and the guidelines conflict, the guidelines must

yield, and the statutory minimum sentence prevails.”). Thus, if Johnson were resentenced

today, the amended Guidelines would still require a sentence of 240 months, and the court

would be departing from this same 240-month baseline if again presented with the

government’s substantial-assistance motion.

“[T]he appropriate starting point for calculating a downward departure under

18 U.S.C. § 3553(e) is the mandatory minimum sentence itself.” United States v. Stewart,

306 F.3d 295, 332 (6th Cir. 2002) (rejecting the claim that, once the government filed a

§ 3553(e) motion, the sentence could be based on the initial Guidelines range rather than the

higher statutory mandatory minimum). This means that the district court properly concluded
No. 08-5667 United States v. Johnson Page 6

that, “[b]ecause [Johnson] was subject to a statutory mandatory minimum term of

240 months, Amendment 706, even if it had been in effect at the time of the defendant’s

sentencing, would not have lowered the applicable guidelines range.”

Nor did the district court, as Johnson claims, conflate the concept of a Guidelines

range with that of a Guidelines sentence. Where a mandatory minimum sentence exceeds

the otherwise applicable Guidelines range—as it would were Johnson to be resentenced

today—it replaces that Guidelines range. See, e.g., United States v. Mooneyham, 473 F.3d

280, 294 (6th Cir. 2007) (because of a mandatory minimum sentence, the “applicable

guideline range was effectively 120 to 137 months” although it would have otherwise been

110 to 137 months) (emphasis added); United States v. Jones, 523 F.3d 881, 882 (8th Cir.

2008) (“The top of Mr. Jones’s originally calculated guidelines range was less than the

statutory mandatory minimum sentence for the quantity of crack involved in his conviction,

so that his final originally calculated guidelines range was the statutorily required minimum

sentence of 120 months.”) (emphasis added). If we were to accept Johnson’s argument, we

would afford him a “double benefit by first permitting [him] to avoid a higher mandatory

minimum sentence and then granting a departure from an even lower sentencing guidelines

range.” Stewart, 306 F.3d at 332.

Finally, even assuming for the sake of argument that the district court had discretion

to modify Johnson’s sentence, no such reduction was warranted. A reduction is not

automatic; instead, the district court has discretion within the limits of U.S.S.G. § 1B1.10.

“[T]he 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).

To succeed on this point, Johnson must show that the district court abused its

discretion by denying his motion for a sentence reduction. United States v. Peveler,

359 F.3d 369, 373 (6th Cir. 2004) (noting that this court reviews a district court’s denial of

a motion to reduce sentence under the abuse-of-discretion standard). But the district court

did not abuse its discretion. Its opinion makes clear that it considered and rejected the

factors proffered by Johnson on the ground that they did not warrant any further sentence

reduction, stating that “even if the Court ha[d] such authority, this Court would, after
No. 08-5667 United States v. Johnson Page 7

consideration of the factors set forth in 18 U.S.C. § 3553(a) and public safety considerations,

exercise its discretion and deny the motion for reduction of sentence.” The district court

therefore properly denied Johnson’s motion for a reduction of his sentence.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.