PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

________ 

No. 12-1482 

_________ 

 UNITED STATES OF AMERICA 

v. 

JOSE ORTIZ-VEGA, 

Appellant 

________ 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 2-04-cr-00015-001) 

District Judge: Honorable Eduardo C. Robreno 

 _______ 

Submitted Under Third Circuit LAR 34.1(a) 

December 12, 2013 

Before: MCKEE, CHIEF JUDGE, FUENTES, and SLOVITER, Circuit Judges

(Filed: March 12, 2014) 
2 

Mark E. Coyne, Esq. 

Office of United States Attorney 

970 Broad Street 

Room 700 

Newark, NJ 07102 

Bernadette A. McKeon, Esq. 

Office of United States Attorney 

615 Chestnut Street 

Suite 1250 

Philadelphia, PA 19106 

 

 Counsel for Appellee 

Sarah S. Gannett, Esq. 

Christy Unger, Esq. 

Federal Community Defender Office for the 

Eastern District of Pennsylvania 

601 Walnut Street 

The Curtis Center, Suite 540 West 

Philadelphia, PA 19106 

 

Counsel for Appellant 
3 

 

 _____________ 

 O P I N I O N 

_____________ 

 

Sloviter, Circuit Judge. 

This case involves a novel question as to when a 

reduction in sentence based on retroactive changes to the 

sentencing guidelines for crack cocaine is applicable. Jose 

Ortiz-Vega appeals his 108 month sentence for cocaine base 

(“crack”) offenses. Ortiz-Vega argues that he is eligible for a 

sentence modification under 18 U.S.C. § 3582(c)(2) in light 

of retroactively applicable modifications to the federal 

Sentencing Guidelines dealing with crack cocaine offenses. 

For the reasons given below, we reverse the District Court’s 

denial of Ortiz-Vega’s request for sentence modification, and 

remand for further consideration in light of our decision.1

 

1

 The District Court had subject matter jurisdiction pursuant 

to 18 U.S.C. § 3231, and had jurisdiction to consider OrtizVega’s motion for a sentence reduction pursuant to 18 U.S.C. 

§ 3582(c)(2). We have jurisdiction pursuant to 28 U.S.C. § 

1291. We exercise plenary review of a district court’s 

conclusions regarding the scope of its authority under 18 

U.S.C. § 3582(c). United States v. Mateo, 560 F.3d 152, 154 

(3d Cir. 2009). 
4 

I. 

 Ortiz-Vega pled guilty to multiple counts of crack 

cocaine possession and distribution, as well as possession of a 

firearm in furtherance of a drug trafficking offense. The 

District Court sentenced him on July 6, 2004 to 108 months 

imprisonment on the drug charges, a mandatory 60 months, to 

be served consecutively, on the firearm count, and 10 years of 

supervised release, all sentences suggested by the government 

in the plea agreement. 

 Various statutory provisions were applicable to OrtizVega’s sentence. The Sentencing Guidelines called for a 

sentence of 97-121 months on the drug charges, and the gun 

offense carried a mandatory consecutive sentence of 60 

months. 18 U.S.C. § 24(c)(1)(A)(I). Additionally, the drug 

charges carried, at the time, a mandatory minimum penalty of 

120 months. 21 U.S.C. § 841(b)(1)(A)(iii) (2006) (since 

amended several times, most recently in 2010). This ought to 

have led to a sentencing range for Ortiz-Vega of 120-121 

months. However, the mandatory minimum sentence was not 

asked for by the government, and was not applied by the 

District Court. The District Court sentenced Ortiz-Vega to 

108 months on the drug charge, and the government did not 

challenge this, seek resentencing, or appeal within the 

relevant periods. 

 In 2010, the Fair Sentencing Act (“FSA”) was passed 

by Congress, seeking to “restore fairness to Federal Cocaine 

sentencing” by lowering the mandatory minimum penalties 

for distributing crack cocaine. Fair Sentencing Act of 2010, 

Pub. L. 111-220, § 2, 124 Stat. 2372 (2010). The FSA 

reduced the disparity in quantities triggering mandatory 
5 

minimum sentences between crack cocaine and powder 

cocaine from 100:1 to approximately 18:1. Congress gave 

the Federal Sentencing Commission authority to promulgate 

new guidelines to conform the Sentencing Guidelines with 

the FSA’s new penalty ratios. The new guideline, U.S.S.G. 

App. C, amd. 750, was promulgated in 2010, and made 

retroactive, effective November 1, 2011. See U.S.S.G. App. 

C, amd. 759. Under the new, retroactive Guidelines, the 

offense level for the drug offenses in Ortiz-Vegas’ case would 

be 30. With the relevant upward and downward adjustments 

already established, this would lead to a Guideline range of 

78-97 months rather than 97-121 months for Ortiz-Vega. See

U.S.S.G. Ch. 5, Pt. A (Sentencing Table). 

 In the sentence modifications proceedings before the 

District Court, the government argued, and the District Court 

accepted, that Ortiz-Vega was not eligible for a sentence 

reduction because such a reduction was blocked by operation 

of the 120 month mandatory minimum sentence that should 

have been, but was not, applied to Ortiz-Vega. This decision 

was at least arguably consistent with the controlling precedent 

in this circuit at the time, United States v. Doe, 564 F.3d 305, 

309 (3d Cir. 2009). Not long after the District Court denied 

Ortiz-Vega’s request for a sentence modification, however, 

this court, in United States v. Savani, 733 F.3d 56, 58 (3d Cir. 

2013), held that Doe had been superseded by the 2010 

amendments to the Sentencing Guidelines. Ortiz-Vega 

appealed. 

II. 

 This appeal presents the novel question of whether a 

defendant, who would otherwise be eligible for a sentence 

reduction based on a change in Guideline ranges, is rendered 
6 

ineligible for the reduction by a relevant mandatory minimum 

sentence, despite the fact that the mandatory minimum was 

not actually applied in his or her case. 

 18 U.S.C. § 3582(c)(2) governs modification of 

sentences in the case that a sentencing guideline has been 

changed. It provides an exception to the normal rule, 18 

U.S.C.§ 3582(c), that a court may not modify a term of 

imprisonment once it has been imposed. The exception 

provides: 

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 

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). 

 Following this rule would suggest that Ortiz-Vega 

should be eligible for a sentence reduction, as he was 

“sentenced to a term of imprisonment based on a sentencing 

range that has subsequently been lowered by the Sentencing 

Commission.” (App. 5, 10) However, a question arises here 

as to whether such a reduction would be, in this case, 

“consistent with the applicable policy statements issued by 
7 

the Sentencing Commission.” The District Court held that it 

would not be. 

 In relevant part, Application Note 1(A) to Section 

1B1.10 of the Sentencing Commission’s policy statement 

states that a sentence reduction under § 3582(c)(2) is “not 

consistent with this policy statement if . . . (ii) 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 statutory provision (e.g., a statutory 

mandatory minimum term of imprisonment).” These policy 

statements are binding on the courts. See Dillon v. United 

States, 560 U.S. 817, 821 (2010) (“Any reduction must be 

consistent with applicable policy statements issued by the 

Sentencing Commission.”). 

 The District Court, taking its lead from our decision in 

Doe, held that this policy statement rendered Ortiz-Vega 

ineligible for a sentence reduction because the “operation of . 

. . a statutory mandatory minimum term of imprisonment” 

applied to him. In such a case, the District Court held, the 

“mandatory minimum sentence subsumes and becomes the 

applicable guideline range for the Defendant.” (App. 17 

(citing Doe, 564 F.3d at 312)) Because the District Court 

held that the policy statement ruled out reducing Ortiz-Vega’s 

sentence, it did not directly consider so-called “Step One” in 

the § 3582(c)(2) analysis, addressing whether or not OrtizVega’s sentence was “based on a sentencing range that has 

subsequently been lowered by the Sentencing Commission.” 

 The District Court, in denying Ortiz-Vega’s motion for 

sentence reduction, relied on our decision in Doe. However, 
8 

in the time after the District Court’s decision, this court held 

that Doe was superseded by statute. While, under Doe, the 

court understood the Sentencing Commission policy 

statement to require treating a mandatory minimum sentence 

as the “applicable guideline range” whether or not the 

mandatory minimum was actually applied to the particular 

defendant, in Savani we held that this interpretation had been 

foreclosed by revisions to the guideline commentary. Savani, 

733 F.3d at 62. After the November 2011 revisions to the 

Guidelines, the commentary to § 1B1.10 now defines 

“applicable guideline range” as “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 provisions in the 

Guidelines Manual or any variance.” U.S.S.G § 1B1.10, 

Comment (n.1(A)) (Nov. 2011). This suggests that 

“applicable guideline range” in § 1B1.10 means the 

sentencing range corresponding to the defendant’s offense 

level and criminal history category, not in terms of a 

mandatory minimum sentence if the mandatory minimum was 

not actually applied. Savani, 733 F.3d at 62, 65. 

 After Savani, the District Court’s justification for 

denying Ortiz-Vega’s request for sentencing modification is 

no longer applicable. The government, however, asks us to 

distinguish this case from Savani on the grounds that the 

defendants in Savani were given sentences below the 

otherwise applicable mandatory minimum sentence because 

of substantial assistance departures, while this was not so in 

Ortiz-Vega’s case. While not a complete non sequitur, this 

argument is not, in the end, convincing. The plausible part of 

the government’s argument is that substantial assistance is 

one of the few explicit reasons for imposing a sentence below 
9 

the statutory mandatory minimum authorized by 18 U.S.C. § 

3553(e). Imposing a sentence below the mandatory minimum 

is rarely, if ever, authorized on other grounds. But, the 

commentary language itself does not provide the limitation 

the government seeks, and we see no reason to read it back 

into the rule itself. The reason for not imposing a mandatory 

minimum sentence may be relevant when a district court 

decides whether to exercise discretion in granting a 

modification of sentence or not, but is not a part of the 

comment language itself, and it would be inappropriate to add 

this requirement on our own. 

III. 

The District Court decided that Ortiz-Vega was not 

eligible for a sentence modification under § 3582(c)(2) on the 

ground that such a modification would not be “consistent with 

applicable policy statements issued by the Sentencing 

Commission.” (App. 16) Because the District Court wrongly 

held that Ortiz-Vega was not eligible for modification under 

this “Step Two” analysis, it did not address Step One. We, 

however, must consider Step One. This requires that the 

defendant have been sentenced to a term of imprisonment, 

“based on a sentencing range that has subsequently been 

lowered by the Sentencing Commission.” 18. U.S.C. § 

3582(c)(2). 

 The government here contends that, even though it was 

not actually applied to Ortiz-Vega, he was nonetheless 

“subject to” the mandatory minimum sentence, and therefore 

his sentence was not “based on a sentencing range that has 

subsequently been lowered.” Ortiz-Vega contends that, while 

it is true that the mandatory minimum should have been 
10 

applied, it was not, and he was therefore not “subject to” it, 

and his sentence was therefore clearly “based on” a

sentencing range (the crack cocaine Guidelines) that were 

subsequently changed. There is some plausibility to both 

interpretations. There is a plausible sense of “subject to” 

where Ortiz-Vega was “subject to” the mandatory minimum 

sentence even though it was not actually applied, given that it 

should have applied. 

 However, the more plausible interpretation would 

require that the mandatory minimum actually be applied —

that the defendant be subjected to it — for the defendant to be 

ineligible for modification under Step One. This 

interpretation fits better with the statutory language itself, 

since if a defendant is subjected to a mandatory minimum, he 

or she would not be given a sentence “based on a sentencing 

range that has subsequently been lowered.” And, in OrtizVega’s actual case, it is quite clear from the District Court’s 

sentencing hearing that he was given a sentence “based on a 

sentencing range that has subsequently been lowered.” For 

this reason, it is clear that Ortiz-Vega meets the requirements 

for Step One, allowing him to seek a sentence modification. 

IV. 

 One additional basis for our decision that Ortiz-Vega 

is eligible for a sentence modification must also be discussed. 

While it is not completely clear why the mandatory minimum 

was not applied to Ortiz-Vega, this omission is characterized 

by the government and the District Court as a mistake or an 

error. The government suggests that, in deciding whether to 

grant a sentence modification to Ortiz-Vega, we should act as 

if the mandatory minimum were actually applied, and 
11 

therefore deny the modification. The District Court largely 

agreed with this, holding that to grant a modification at this 

point would be to “perpetuate [the] error” by “overlook[ing] 

the statutory mandatory minimum twice.” (App. 21) 

 As Ortiz-Vega convincingly argues, however, this is 

almost exactly backwards. As the District Court itself noted, 

prior sentencing errors cannot be modified in a § 3582(c)(2) 

proceeding. This was confirmed by the Supreme Court, 

which has stated unequivocally that a court may not revisit or 

re-decide guideline applications during a § 3582(c)(2) 

proceeding, but rather must work only with the sentence 

actually imposed. See Dillon, 560 U.S. at 831. The large 

majority of cases that have addressed this issue have 

considered errors that went against the defendant. But, there 

is no reason why this principle should apply only when it 

goes against defendants, and not when it benefits them, and 

nothing in the relevant court decisions would support such an 

interpretation. As odd as it may seem, “perpetuating an 

error” is exactly what is required by Dillon in a case like this. 

The District Court was therefore incorrect to use the past 

error as a reason to deny a sentence modification. 

V. 

 The FSA not only called for change in the crack 

cocaine sentencing guidelines, it also lowered several 

mandatory minimum sentences. If Ortiz-Vega had been 

convicted of the same crimes after the passage of the FSA, he 

would have faced a 60 month mandatory minimum, rather 

than the 120 months that should have applied to him. See 21 

U.S.C. § 841(b)(1)(A) & (B), as amended by Pub. L. 111-220 

(2010). Ortiz-Vega argues that, if he is subject to a 
12 

mandatory minimum, it ought to be to the post-FSA 

mandatory minimum, a sentence that would be below his 

applicable guideline sentence. Unlike his earlier arguments, 

this argument is without merit. The FSA mandatory 

minimum was not made retroactive, and this court, and every 

other court of appeals to consider the issue, has held that the 

FSA mandatory minimums do not apply to defendants who 

committed their offenses and were sentenced prior to the 

enactment of the FSA in August, 2010. See United States v. 

Reevey, 631 F.3d 110, 115 (3d Cir. 2010). 

 However, the fact that the FSA significantly lowered 

the mandatory minimum that someone like Ortiz-Vega would 

be subject to if his crime had taken place today may still have 

some relevance for this case. The final decision as to whether 

to grant a sentence modification is a discretionary decision for 

the district court, even if a defendant qualifies for a 

modification under § 3582(c)(2). This discretionary element 

is signaled by the language in § 3582(c)(2) that says “the 

court may reduce” the sentence (emphasis added). The fact 

that the FSA has cut in half the mandatory minimum that 

someone like Ortiz-Vega would be sentenced to today surely 

tells in favor of exercising discretion in his favor to reduce his 

sentence. The government suggests that the District Court 

had signaled that it would not exercise discretion in favor of 

Ortiz-Vega, and implies that this gives us further grounds to 

uphold the sentence. Because the District Court found that it 

lacked authority to modify Ortiz-Vega’s sentence, the 

question of the District Court’s exercise of discretion in this 

case was not before us. We will therefore remand so that the 

District Court can exercise its discretion. 
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VI. 

 This case presents an interaction of complex statutes, 

policy statements, and confused prior proceedings, making 

for a difficult and perhaps unique pattern. However, for the 

reasons given above, we find that Ortiz-Vega is eligible for a 

sentence modification under 18 U.S.C. § 3582(c)(2), and 

remand to the District Court for further proceedings 

consistent with this decision.