United States v. Flemming

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-2726

UNITED STATES OF AMERICA

v.

GLENN FLEMMING,

a/k/a Nasir Huggins,

Appellant

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 2-03-cr-00148-001)

District Judge: Honorable Anita B. Brody

Argued January 11, 2010

Before: AMBRO, CHAGARES, Circuit Judges and

JONES,* District Court Judge

*

The Honorable John E. Jones, III, United States District

Judge for the Middle District of Pennsylvania, sitting by

designation.

(Opinion filed: July 27, 2010)

Peter A. Levin, Esquire (Argued)

1927 Hamilton Street

Philadelphia, PA 19130-0000

Counsel for Appellant

Michael L. Levy

United States Attorney

Robert A. Zauzmer

Assistant United States Attorney

Chief of Appeals

Bernadette McKeon (Argued)

Assistant United States Attorney

Salvatore L. Astolfi, Esquire

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106-0000

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge

Glenn Flemming was sentenced in February 2005 to 175

2

months’ imprisonment for federal firearm and crack cocaine

offenses committed in 2002. After the United States Sentencing

Commission retroactively lowered the offense levels for most

crack cocaine offenses by two levels, Flemming moved for a

reduction of sentence under 18 U.S.C. § 3582(c)(2). The

District Court denied his motion, concluding that it lacked

authority to reduce Flemming’s sentence because he was a

career offender under U.S.S.G. § 4B1.1. On appeal, Flemming

argues that, despite his status as a career offender, he is eligible

for a sentence reduction under § 3582(c)(2) because the District

Court granted him a downward departure under U.S.S.G.

§ 4A1.3 after concluding that the career offender enhancement

overstated the seriousness of his criminal history, and instead

sentenced him within the Guidelines range for crack cocaine

offenses.

The narrow issue presented in this case—whether a

career offender who receives a § 4A1.3 downward departure

under a pre-2003 edition of the Sentencing Guidelines to the

Guidelines range for crack cocaine offenses is eligible for a

sentence reduction under § 3852(c)(2)—is one of first

impression in our Court, but one that has divided our sister

circuit courts. The First and Second Circuits, as well as a

divided panel of the Fourth Circuit, have concluded that such a

defendant is eligible for a sentence reduction. The Eighth and

Tenth Circuits, as well as a divided panel of the Sixth Circuit,

have disagreed.

3

Though we do so through a somewhat different analysis,

we join the First, Second, and Fourth Circuit Courts in

concluding that such a defendant is eligible for a sentence

reduction under § 3582(c)(2). Accordingly, we vacate the

District Court’s order and remand for further proceedings.

I. Background

In March 2003, a federal grand jury returned an

indictment charging that Flemming possessed with intent to

distribute crack cocaine, in violation of 21 U.S.C. § 841(a) and

(b)(1)(C) (Count One); possessed a firearm in furtherance of a

drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)

(Count Two); and possessed a firearm as a felon, in violation of

18 U.S.C. § 922(g) (Count Three). A jury convicted Flemming

on all three counts.

A. Sentencing

Using the 2001 edition of the Sentencing Guidelines,1 the

Probation Office determined that under the drug quantity table,

U.S.S.G. § 2D1.1(c) (the “Crack Cocaine Guidelines”),

1

Though the Presentence Investigation Report was prepared

in September 2004, the United States Probation Office used the

2001 edition of the Sentencing Guidelines—the edition in force

when Flemming committed the offenses in this case—to avoid

ex post facto issues. See U.S.S.G. § 1B1.11(b)(1).

4

Flemming’s base offense level was 24 because he possessed

more than four but less than five grams of crack cocaine. With

a criminal history category of V, Flemming’s Guidelines range

would have been 92 to 115 months’ imprisonment. However,

Flemming also qualified as a career offender under U.S.S.G.

§ 4B1.1 2 (the “Career Offender Guidelines”) based on two prior

convictions for controlled substance offenses. 3 The career

offender enhancement increased Flemming’s offense level to 34

and his criminal history category to VI, with a resulting

Sentencing Guidelines range of 262 to 327 months’

imprisonment. Flemming also faced a mandatory consecutive

sentence of 60 months’ imprisonment on Count Two. See 18

U.S.C. § 924(c)(1)(A)(i).

2

A defendant qualifies as a career offender if: “(1) [he] was

at least eighteen years old at the time [he] committed the instant

offense of conviction[;] (2) the instant offense of conviction is

a felony that is either a crime of violence or a controlled

substance offense[;] and (3) [he] has at least two prior felony

convictions of either a crime of violence or a controlled

substance offense.” U.S.S.G. § 4B1.1(a).

3

Flemming has two prior state court convictions (in

November 1999 and February 2000) for manufacturing,

delivering, or possessing with the intent to manufacture or

deliver a controlled substance. Flemming was 18 and 20-years

old, respectively, when he committed these offenses, and

received a sentence of 12 to 24 months’ imprisonment for each.

See PSR ¶¶ 34, 37.

5

At sentencing, Flemming argued that the career offender

enhancement overstated his criminal history, warranting a

downward departure pursuant to U.S.S.G. § 4A1.3. Under the

2001 edition of the Sentencing Guidelines, § 4A1.3 in relevant

part provided:

If reliable information indicates that the criminal

history category does not adequately reflect the

seriousness of the defendant’s past criminal

conduct or the likelihood that the defendant will

commit other crimes, the court may consider

imposing a sentence departing from the otherwise

applicable guideline range.

U.S.S.G. § 4A1.3 (2001). In United States v. Shoupe, 35 F.3d

835 (3d Cir. 1994), we held that § 4A1.3 authorized a court to

depart both horizontally (in criminal history category) and

vertically (in offense level). Id. at 839. In the specific context

of a defendant subject to the career offender enhancement, we

reasoned that “[b]ecause career offender status enhances both a

defendant’s criminal history category and offense level, . . . a

sentencing court may depart in both under the proper

circumstances.” Id. at 838.

Consistent with our interpretation of § 4A1.3 in Shoupe,

the District Court granted Flemming a downward departure in

both offense level and criminal history category. The Court

explained:

6

I’m going to start by saying that the guidelines . . .

as stated in the pre-sentence report are correct.

However, under [§ 4A1.3], I believe that . . .

designating Mr. Flemming as a career offender

overstates his criminal history and I find this to be

true . . . because [of] two things. Number one is

because the age at which he committed the

offenses . . . that are designated to qualify under

the criminal history designation. And also, . . .

although the two offenses in state court are not

related, there’s no question about that, the

sentencing judge gave Mr. Flemming 12 to 24

months.

And therefore, I will depart from the

criminal history record. That leaves us with . . .

an offense level of 24 and a criminal history of

five.

Though it did not expressly quantify the extent of its departure,

the offense level and criminal history category that the Court

was “le[ft] . . . with” were the same offense level and criminal

history category that applied under the Crack Cocaine

Guidelines without the career offender enhancement (i.e., level

24 and category V). To repeat, the resulting Guidelines range

was 92 to 115 months’ imprisonment.

Noting that the District Court had “determined that [it

7

was] not going to apply the career offender provisions,” the

Government recommended a sentence at the top of the

Guidelines range. The District Court followed suit and

sentenced Flemming to 115 months’ imprisonment on Counts

One and Three, and a mandatory consecutive sentence of 60

months’ imprisonment on Count Two. Flemming’s total

sentence was thus 175 months’ imprisonment.4

B. Motion for Sentence Reduction

Effective November 1, 2007, the Sentencing Commission

issued Amendment 706 to the Guidelines, which lowered the

base offense level for offenses involving most quantities of

crack cocaine by two levels. U.S.S.G. app. C, amend. 706 (Nov.

1, 2007). In May 2008, the Commission made Amendment 706

retroactive. U.S.S.G. app. C, amend. 713 (Supp. May 1, 2008);

U.S.S.G. § 1B1.10(c). On the basis of the Amendment,

Flemming filed a pro se motion for a reduction of sentence

pursuant to 18 U.S.C. § 3582(c)(2). The District Court

appointed counsel to represent Flemming, and that counsel filed

a supplemental brief on Flemming’s behalf.

The District Court denied Flemming’s motion. It

4

The District Court also imposed a six-year term of

supervised release, a $2,500 fine, and a $300 special assessment.

In December 2007, we affirmed Flemming’s conviction and

sentence.

8

reasoned that, although it had granted Flemming a downward

departure under § 4A1.3, it had nonetheless adopted the findings

of the Presentence Investigation Report and determined that

Flemming qualified as a career offender. Citing our decision in

United States v. Mateo, 560 F.3d 152 (3d Cir. 2009), the Court

held that Flemming was not entitled to a sentence reduction

because Amendment 706 did not affect his sentencing range

under the Career Offender Guidelines.5 Flemming timely

appealed.

II. Jurisdiction

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

§ 3231. We have appellate jurisdiction under 28 U.S.C. § 1291.

III. Discussion

“[A] judgment of conviction that includes [a term of

imprisonment] constitutes a final judgment,” 18 U.S.C.

§ 3582(b), and generally may not be modified by a district court

“once it has been imposed,” id. § 3582(c). However, there is a

limited exception to this general rule of finality:

5

Though the District Court recognized that “this result may

not reflect [the Sentencing Commission’s] intent in passing

Amendment 706,” it determined that the conclusion that

Flemming was not eligible for a sentence reduction was

“compelled by . . . the law of this Circuit.”

9

[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 . . . , 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.

Id. § 3582(c)(2).

We have interpreted this provision as authorizing a

district court to reduce a sentence already imposed where two

requirements are satisfied: (1) the defendant’s initial sentence

must have been “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission,” and

(2) the sentence reduction must be “consistent with applicable

policy statements issued by the Sentencing Commission.” Id.;

United States v. Doe, 564 F.3d 305, 309 (3d Cir. 2009). If these

two requirements are satisfied, a court may then exercise its

discretion—“after considering the factors set forth in section

3553(a) to the extent that they are applicable,” 18 U.S.C.

§ 3582(c)(2), as well as the factors contained in the commentary

to the Commission’s policy statements, U.S.S.G. § 1B1.10 cmt.

n.1(B)—to determine whether a reduction in sentence is

10

warranted (as well as the extent of any such reduction).

In this case, the District Court determined that it lacked

authority to consider whether a sentence reduction was

warranted because Flemming did not satisfy either of the two

statutory requirements in § 3582(c)(2). Thus, we are not called

on to review the District Court’s exercise of its discretion, but

to determine whether it was correct that Flemming is statutorily

ineligible for a sentence reduction under § 3582(c)(2). We

review de novo a district court’s interpretation of § 3582(c)(2),

as well as its interpretation of the Sentencing Guidelines. See

Mateo, 560 F.3d at 154.

A. Was Flemming sentenced “based on a sentencing

range” that has been lowered by Amendment

706?

Consistent with the District Court’s reasoning, the

Government contends that our decision in Mateo compels the

conclusion that Flemming was not sentenced “based on a

sentencing range” that was lowered by Amendment 706 because

his Guidelines range was calculated under the Career Offender

Guidelines in § 4B1.1, rather than the Crack Cocaine Guidelines

in § 2D1.1(c). We disagree.

In Mateo, we held that a career offender, who received no

downward departures and was sentenced within the Career

Offender Guidelines range, was not eligible for a reduction in

11

sentence even though his base offense level under the Crack

Cocaine Guidelines had been subsequently lowered by

Amendment 706. 560 F.3d at 155. We rejected the defendant’s

argument that his sentence was “based on” the Crack Cocaine

Guidelines in § 2D1.1(c) simply because “the District Court

consulted that section in calculating his offense level.” Id. In

addition, we emphasized the language from § 3582(c)(2) that the

sentence imposed must have been “‘based on a sentencing range

that has subsequently been lowered by the Sentencing

Commission,’” id. (quoting 18 U.S.C. § 3582(c)(2)) (emphasis

in original), and reasoned that the term “sentencing range”

“‘clearly contemplates the end result of the overall guideline

calculus, not the series of tentative results reached at various

interim steps in the performance of that calculus.’” Id. (quoting

United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008))

(emphasis added). Thus, “‘if an amended guideline does not

have the effect of lowering the sentencing range actually used

at sentencing, the defendant’s sentence was not based on that

range within the intendment of the statute.’” Id. (quoting

Caraballo, 552 F.3d at 10) (emphasis added).

Far from compelling the conclusion that he is ineligible

for a sentence reduction, Mateo supports Flemming’s argument

that his sentence was “based on” the sentencing range calculated

under the Crack Cocaine Guidelines. Though the District Court

agreed that Flemming technically qualified as a career offender,

it declined to sentence him within that range, and instead applied

the Crack Cocaine Guidelines range after determining under

12

§ 4A1.3 that the career offender enhancement overstated the

seriousness of his criminal history. In other words, the District

Court “actually used” the Crack Cocaine Guidelines range,

rather than the Career Offender Guidelines range, when it

sentenced Flemming.

The First, Second, and Fourth Circuit Courts—as well as

numerous district courts, including several in our own

Circuit7 —have reached the same conclusion in nearly identical

7

See United States v. Poindexter, 550 F. Supp. 2d 578, 581

(E.D. Pa. 2008) (holding that career offender granted a

downward departure under § 4A1.3 and sentenced within the

Crack Cocaine Guidelines range was eligible for a sentence

reduction: “[I]n the end, [the Crack Cocaine Guidelines] played

a far more significant role than Section 4B1.1, the section that

the Government argues [the defendant’s] sentence was based

on.”); see also United States v. Stratton, No. 99-326, 2009 WL

506365, at *5-6 (E.D. Pa. Feb. 27, 2009); United States v. Clark,

No. 00-037, 2008 WL 2705215, at *1 (W.D. Pa. July 7, 2008);

United States v. Cornish, No. 05-337, 2008 U.S. Dist. LEXIS

50577, at *7-8 (D.N.J. June 25, 2008) (“[A]lthough these

downward departures were from the § 4B1.1 Guidelines based

on the Court’s determination that [the defendant’s] criminal

history was overstated, they resulted in a sentence that was

exactly as proposed by the Sentencing Guidelines under

§ 2D1.1. In effect, the Court did not sentence [the defendant] as

a career offender.”).

13

circumstances.8 In United States v. McGee, 553 F.3d 225 (2d

Cir. 2009) (per curiam), the District Court granted a career

offender a downward departure under § 4A1.3, stating that it

was departing from the Career Offender Guidelines range “to

the level that the defendant would have been in absent the career

offender status calculation.” Id. at 227 (internal quotation marks

omitted). Accordingly, the Court applied the sentencing range

calculated under the Crack Cocaine Guidelines and sentenced

the defendant within that range. Id. The Second Circuit

concluded that the defendant was eligible for a sentence

reduction, as it was “apparent that [the defendant] was sentenced

‘based on’ a sentencing guideline range that was subsequently

lowered by the Sentencing Commission because the district

court premised [its] ultimate sentence on the crack cocaine

guidelines.” Id. Indeed, because the district court “sentenced

[the defendant] based on the crack cocaine guidelines[, it] would

likely have considered a different sentence from the one

imposed if the applicable crack guidelines had so provided.” Id.

at 228. Importantly, the Second Circuit perceived no conflict

between the result it reached in McGee and the conclusion,

consistent with Mateo, that “a defendant who is sentenced as a

8

The Eleventh Circuit has also expressed agreement with this

conclusion, albeit in a dictum. See United States v. Moore, 541

F.3d 1323, 1329–30 (11th Cir. 2008) (agreeing that defendants

granted a downward departure under § 4A1.3, and sentenced

under the Guidelines range that “would be in effect absent the

career offender guideline[s],” would be eligible for a sentence

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

14

career offender, but does not receive a downward departure,

[does not] qualif[y] for a reduced sentence.” Id. at 227; see also

United States v. Martinez, 572 F.3d 82, 84 (2d Cir. 2009)

(distinguishing the defendant in McGee—who “could have been

sentenced under § 4B1.1 but was in fact sentenced under [the

Crack Cocaine Guidelines in] § 2D1.1”—from a defendant who

is sentenced within the Career Offender Guidelines range and

thus ineligible for a sentence reduction based on Amendment

706) (emphases in original).

The First and Fourth Circuit Courts similarly have

concluded that a career offender who is granted a downward

departure under § 4A1.3 to the Crack Cocaine Guidelines range

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

United States v. Cardosa, 606 F.3d 16, 21 (1st Cir. 2010);

United States v. Munn, 595 F.3d 183 (4th Cir. 2010).9 And, like

9

The Munn Court did not analyze separately the two

statutory requirements for a sentence reduction under

§ 3582(c)(2)—i.e., that (1) the defendant’s sentence was “based

on” a sentencing range that has been subsequently lowered, and

(2) that any sentence reduction be consistent with the Sentencing

Commission’s policy statements—but rather focused its analysis

on the second requirement, which we discuss below in Part

III.B. In that regard, the Fourth Circuit appears to have assumed

(as at least one other Circuit has) that the two requirements of

§ 3582(c)(2) are interchangeable. See Munn, 595 F.3d at 187

(“Together, § 3582(c)(2) and the Policy Statement make clear

that a defendant whose offense of conviction involved crack is

15

the Second Circuit in McGee (and our Court in Mateo), these

Courts agree that a defendant sentenced within the Career

Offender Guidelines range would not be eligible for a sentence

reduction. See Cardosa, 606 F.3d at 19 (citing United States v.

Ayala-Pizarro, 551 F.3d 84, 85 (1st Cir. 2008)); Munn, 595 F.3d

at 187 & n.7.

We agree with the reasoning of these Courts. The

Government’s contention that Flemming’s sentence was “based

on” the sentencing range calculated under the Career Offender

Guidelines cannot be squared with the ordinary meaning of that

phrase. See United States v. Cook, 594 F.3d 883, 888 (D.C. Cir.

2010) (“Construed in its ordinary sense, the phrase ‘based on’

refers, for purposes of section 3582(c)(2), to a guideline range

that determined the defendant’s sentence.”); see also Cardosa,

606 F.3d at 5. In applying the § 4A1.3 departure, the District

Court did not specify the number of offense levels or criminal

history categories by which it was departing. Rather, it simply

reverted, without further comment, to the base offense level

calculated under the Crack Cocaine Guidelines (24) and the

criminal history category that applied to Flemming absent the

career offender enhancement (V), and imposed a sentence

within that range. Indeed, we have little doubt that had

eligible for a reduced sentence only if Amendment 706 lowers

the defendant’s applicable guideline range.”); cf. United States

v. Dryden, 563 F.3d 1168, 1170–71 (10th Cir. 2009)

(concluding that the two requirements are “identical” and

“convey[] the same meaning”).

16

Amendment 706 been in effect when Flemming was

sentenced—and, thus, had Flemming’s offense level under the

Crack Cocaine Guidelines been two levels lower—the District

Court would have applied the resulting lower Guidelines range

after departing under § 4A1.3.10 To ignore these facts and

conclude nonetheless that Flemming was sentenced “based on”

the Career Offender Guidelines range would put form over

substance. See McGee, 553 F.3d at 228 (reasoning that “a

defendant who was, even if by virtue of a departure, sentenced

‘based on’ the crack guidelines [is] eligible for a reduction”

under § 3582(c)(2), and noting that “a different reading would

lend itself to excessive formalism”).

In sum, we conclude that Flemming satisfies the first

requirement of § 3582(c)(2), as his sentence was “based on a

sentencing range” that has subsequently been lowered by the

Sentencing Commission.

B. Does Amendment 706 have the effect of lowering

Flemming’s “applicable guideline range”?

What initially appears to be a question with a “seemingly

commonsense” answer, McGee, 553 F.3d at 229—i.e., whether

Flemming’s technical status as a career offender, which played

10

With an offense level of 22 and a criminal history category

of V, the advisory sentencing range for Flemming would have

been 77 to 96 months’ imprisonment (instead of 92 to 115

months).

17

no role in the sentence the District Court ultimately imposed,

nonetheless makes him ineligible for a sentence reduction—is

made far more complicated by the second requirement of

§ 3582(c)(2), which provides that any sentence reduction must

be “consistent with applicable policy statements issued by the

Sentencing Commission.” 11 18 U.S.C. § 3582(c)(2); see also

Doe, 564 F.3d at 310.

The policy statement in § 1B1.10 provides that a sentence

reduction based on a retroactive amendment is not consistent

with that policy statement if the amendment “does not have the

effect of lowering the defendant’s applicable guideline range.” 12

U.S.S.G. § 1B1.10(a)(2)(B) (emphasis added). Thus, under the

policy statement, Flemming is not eligible for a sentence

reduction if his “applicable guideline range” is the sentencing

range calculated under the Career Offender Guidelines, as that

range is not affected by Amendment 706. However, if

Flemming’s “applicable guideline range” is the Crack Cocaine

11

As the Supreme Court recently confirmed, the Sentencing

Commission’s policy statement in § 1B1.10 is binding on courts.

See Dillon v. United States, 130 S. Ct. 2683 (2010).

12

We have explained that while the policy statement and the

first requirement of § 3582(c)(2) are “complementary,” the

policy statement is “narrower.” Doe, 564 F.3d at 310–11

(rejecting the argument that the policy statement in § 1B1.10

“implicitly redefines the § 3582(c)(2) term ‘based on’”).

18

Guidelines range—which is affected by Amendment 706—he is

eligible for a sentence reduction.

The Government contends that the Guidelines specify

that all departures, including the departure authorized under

§ 4A1.3, result in a sentence outside the “applicable guideline

range.” Under the Government’s theory, it is irrelevant that the

District Court rejected the propriety of the career offender

enhancement and sentenced Flemming within the Crack Cocaine

Guidelines range, because his “applicable guideline range” for

purposes of § 1B1.10 remained the Career Offender Guidelines

range.

As we explain below, the Government’s view, though

plausible, is far from compelled by the Guidelines. Rather, after

“seiz[ing] every thing from which aid can be derived” to answer

this question, Chapman v. United States, 500 U.S. 453, 463

(1991) (internal quotation marks and citation omitted)—i.e., the

Guidelines’ text, the Sentencing Commission’s instructions for

applying the Guidelines, and the Commission’s applicable

Commentary to the Guidelines—we conclude that the edition of

the Guidelines used at Flemming’s sentencing is ambiguous as

to whether the “applicable guideline range” is his pre-§ 4A1.3

departure range (the Career Offender Guidelines range) or his

post-§ 4A1.3 departure range (the Crack Cocaine Guidelines

range). Under the rule of lenity, we resolve that ambiguity in

Flemming’s favor.

19

1. The Application Instructions

The Sentencing Guidelines contain no global definition

of the phrase “applicable guideline range,” which our Court and

other circuit courts have treated as a term of art. As a result, we

previously have looked to the Application Instructions for the

Guidelines contained in U.S.S.G. § 1B1.1 for guidance in

determining the point at which a defendant’s “applicable

guideline range” is determined. Those Instructions (though they

do not use the term “applicable guideline range”) instruct

sentencing courts to apply the various provisions and chapters

of the Guidelines “in a specific order.” Doe, 564 F.3d at 311;

see also United States v. Johnson, 155 F.3d 682, 684 (3d Cir.

1998) (noting that the Application Instructions provide “a

sequence of steps for the court to follow in the order in which

they appear”) (emphasis in original).13 The theory is that, by

13

To be clear, these “steps” are not the same as those we

have required district courts to follow in the wake of United

States v. Booker, 543 U.S. 220 (2005). See United States v.

Gunter, 462 F.3d 237, 247 (3d Cir. 2006); accord United States

v. Grier, 585 F.3d 138, 141–42 (3d Cir. 2009) (en banc). Under

that procedure, district courts must (1) “continue to calculate a

defendant’s Guidelines sentence precisely as they would have

before Booker”; (2) rule on any departure motions, and

determine how any departure “affects the Guidelines

calculation”; and (3) impose a sentence after considering the

factors in 18 U.S.C. § 3553(a). Gunter, 585 F.3d at 247. By

contrast, we deal in this case solely with a question of

20

determining the step of the Application Instructions at which a

defendant’s “applicable guideline range” has been set, we can

identify the adjustments that come after that point (and thus do

not affect the “applicable guideline range”).

We relied on the Application Instructions in United

States v. Doe to determine the “applicable guideline range[s]”

for two defendants subject to mandatory minimum sentences of

life imprisonment, which exceeded their initial Guidelines

ranges of 151–188 and 121–151 months’ imprisonment,

respectively, calculated under the Crack Cocaine Guidelines.

564 F.3d at 308. The mandatory minimum sentence was not

applied to either defendant because each received a downward

departure from such a sentence under 18 U.S.C. § 3553(e) and

U.S.S.G. § 5K1.1 in exchange for their substantial assistance to

the Government. Id. After departing by several levels, the

District Court sentenced Jane Doe to 41 months’ imprisonment,

and John Doe to 84 months’ imprisonment. Id.

After Amendment 706 was made retroactive, both

defendants filed motions for a reduction of sentence. Id. The

Does contended that their “applicable guideline ranges” for

Guidelines interpretation (i.e., at what point a defendant’s

“applicable guideline range” has been set), and whether the

Application Instructions provide a clear answer to that question.

Moreover, as the Supreme Court has now ruled, Booker does not

apply in the § 3582(c)(2) context. See Dillon, 130 S. Ct. at

2692.

21

purposes of § 1B1.10 were the ranges calculated under the

Crack Cocaine Guidelines, as the District Court had relied on

those ranges to determine the extent of its departure under

§ 5K1.1.14 We rejected their argument, concluding that the

Does’ “applicable guideline range[s]” were the mandatory

minimum sentences, rather than their “initial” Guidelines ranges

under the Crack Cocaine Guidelines. Id. at 311.

In so holding, we looked to the Application Instructions

in § 1B1.1, which culminate in the following four steps:

(f) Determine the defendant’s criminal history

category as specified in Part A of Chapter Four.

Determine from Part B of Chapter Four any other

applicable adjustments.

(g) Determine the guideline range in Part A of

14

As Judge Fuentes noted in his concurring opinion in Doe,

our precedent “allows a district court to consider the seriousness

of a defendant’s offense—often reflected in the § 5A Guidelines

range [i.e., the range calculated under the Crack Cocaine

Guidelines]—in determining the extent of a substantial

assistance departure.” 564 F.3d at 315 (Fuentes, J., concurring)

(citing United States v. Casiano, 113 F.3d 420, 431 (3d Cir.

1997)). However, “[w]e are alone in this approach; all other

circuits to have addressed the issue have held that the maximum

extent of a substantial assistance departure may be based only on

the defendant’s substantial assistance.” Id. at 315 n.1.

22

Chapter Five that corresponds to the offense level

and criminal history category determined above.

(h) For the particular guideline range, determine

from parts B through G of Chapter Five the

sentencing requirements and options related to

probation, imprisonment, supervision conditions,

fines, and restitution.

(i) Refer to Parts H and K of Chapter Five,

Specific Offender Characteristics and Departures,

and to any other policy statements or commentary

in the guidelines that might warrant consideration

in imposing sentence.

U.S.S.G. § 1B1.1(f)–(i).

The Does’ “initial” Guidelines ranges were determined

at step (g), based on the offense levels assigned them under the

Crack Cocaine Guidelines in § 2D1.1(c). However, step (h)

instructs a sentencing court to determine “the sentencing

requirements” for “the particular guideline range” by consulting

“parts B through G of Chapter Five,” which include application

of a mandatory minimum sentence under § 5G1.1. In turn,

§ 5G1.1(b) provides 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.” U.S.S.G. § 5G1.1(b)

23

(emphasis added). In that context, we concluded that (1) the

Application Instructions “specif[y] that applying a mandatory

sentence pursuant to § 5G1.1(b) [was] the last step in

determining the [Does’] . . . Guideline sentence”; and (2) the

Does’ “initial” advisory ranges under the Crack Cocaine

Guidelines had been essentially “‘subsumed and replaced’” at

step (h) by the mandatory minimum sentences. Id. at 311.

Thus, the implication of our reasoning in Doe is that a

defendant’s “applicable guideline range,” for purposes of

§ 1B1.10, has been set once a court finishes applying step (h),

and that any adjustment applied in step (i)—such as a substantial

assistance departure under § 5K1.1—has no effect on the

“applicable guideline range,” even if a court relied on the

defendant’s “initial” Guidelines range under the Crack Cocaine

Guidelines in determining the extent of such a departure.15

Though Doe did not involve a defendant who received a

downward departure under § 4A1.3 to the range calculated

15

Some of our sister circuit courts have reached the same

conclusion through a different analysis; i.e., because U.S.S.G.

§ 5G1.1(b) provides that the mandatory minimum sentence

becomes “the guideline sentence,” a defendant subject to a

mandatory minimum sentence is not sentenced “based on a

sentencing range” that subsequently could be lowered by the

Sentencing Commission, 18 U.S.C. § 3582(c)(2) (emphasis

added), and thus fails to satisfy the first requirement of

§ 3582(c)(2). See Cook, 594 F.3d at 886–87 (collecting cases).

24

under the Crack Cocaine Guidelines,16 our sister circuit courts

have similarly relied on the Application Instructions to

determine the point at which such a defendant’s “applicable

guideline range” has been determined. See United States v.

Tolliver, 570 F.3d 1062, 1065–66 (8th Cir. 2009). In Tolliver,

the Eighth Circuit Court held that a career offender who was re-

sentenced within the Crack Cocaine Guidelines range pursuant

to a stipulation between the parties was not eligible for a

sentence reduction because Amendment 706 did not have the

16

In his concurring opinion in Doe, Judge Fuentes expressed

concern that the majority had not distinguished the Does’

circumstances from “another category of defendants”—career

offenders who received downward departures under

§ 4A1.3—“whom some courts have ruled eligible for” a

sentence reduction. 564 F.3d at 318 (Fuentes, J., concurring)

(citing McGee, 553 F.3d 225) (emphasis omitted). However, as

we explain in greater detail below, there is no conflict between

our conclusion in this case and the result in Doe, as the

Guidelines are not similarly ambiguous as to the “applicable

guideline range” for a defendant subject to a mandatory

minimum sentence. In that light, we note that the First, Second,

and Fourth Circuits, which have concluded that a defendant in

Flemming’s position is eligible for a sentence reduction, have

also concluded (consistent with Doe) that a defendant subject to

a mandatory minimum sentence is not eligible for a sentence

reduction. See United States v. Roa-Medina, 607 F.3d 255,

258–61 (1st Cir. 2010); United States v. Hood, 556 F.3d 226,

235–36 (4th Cir. 2009); United States v. Williams, 551 F.3d 182,

185 (2d Cir. 2009).

25

effect of lowering his “applicable guideline range.” 570 F.3d at

1064–65. That stipulation followed the defendant’s 28 U.S.C.

§ 2255 motion, in which he argued that he should have received

a sentence within the Crack Cocaine Guidelines range (rather

than the Career Offender Guidelines range) “as originally

contemplated” by the parties in their plea agreement. Id. at

1064. The Government agreed not to oppose the defendant’s

motion, and stipulated to a sentence within the Crack Cocaine

Guidelines range. Id.

Citing our decision in Doe, the Eighth Circuit Court

concluded that (1) a defendant’s “applicable guideline range” is

determined at step (h) of the Application Instructions, and (2) a

court determines whether any departures are warranted at step

(i), after the “applicable guideline range” has already been set.

Id. at 1065–66 (citing Doe, 564 F.3d at 311). Apparently

concluding that Tolliver’s stipulated sentence reduction was

equivalent to a “departure” under the Guidelines (and applied at

step (i) of the Application Instructions), the Eighth Circuit

determined that his “applicable guideline range” remained the

Career Offender Guidelines range and was unaffected by the

stipulation.17 Id. at 1066–67. The Court suggested that this

17

In the alternative, the Court held that Tolliver was

ineligible for a sentence reduction because he failed to qualify

under the first requirement of § 3582(c)(2), i.e., his sentence was

“explicitly based on a stipulation between the parties, and not on

a sentencing range that had subsequently been lowered by the

Sentencing Commission.” 570 F.3d at 1067 (internal quotation

26

conclusion would apply equally with respect to career offenders

who received § 4A1.3 departures, and expressed disagreement

with the Second Circuit’s contrary conclusion in McGee.18 Id.

at 1066.

The Sixth and Tenth Circuit Courts have followed the

reasoning in Tolliver. See United States v. Pembrook, — F.3d

—, 2010 WL 2499656, at * 3–4 (6th Cir. June 11, 2010); United

States v. Darton, 595 F.3d 1191, 1194–95 (10th Cir. 2010).

According to these Circuit Courts, all departures provided for in

the Guidelines must be applied after the “applicable guideline

range” has been calculated, thus foreclosing the possibility of a

departure to the “applicable guideline range.” See Pembrook,

2010 WL 2499656, at *4; Darton, 595 F.3d at 1194.

The Fourth Circuit, however, has concluded that the

“plain text” of the Application Instructions compels the opposite

conclusion. Munn, 595 F.3d at 193–94.19 As the Munn Court

marks, citation, and alteration omitted).

18

The Eighth Circuit, based on its reasoning in Tolliver, has

now explicitly held that a career offender who receives a

§ 4A1.3 downward departure is not eligible for a sentence

reduction. See United States v. Blackmon, 584 F.3d 1115,

1116–17 (8th Cir. 2009).

19

Though the Second Circuit did not explicitly discuss the

Application Instructions in McGee, it nonetheless concluded that

the policy statement in § 1B1.10 is ambiguous as to whether a

27

points out, step (i) of the Application Instructions refers only to

departures contained in “Part K of Chapter Five,” U.S.S.G.

§ 1B1.1(i), such as a departure for substantial assistance under

§ 5K1.1. See Munn, 595 F.3d at 193 n.11. By contrast, step (f)

of the Instructions directs a sentencing court to apply “Part A of

Chapter Four”—which part includes the departure authorized

under § 4A1.3—before a “guideline range” is even mentioned

in the Application Instructions (at step (g)). See U.S.S.G.

§ 1B1.1(g); Munn, 595 F.3d at 192–93. Thus, unlike the

substantial assistance departure we considered in Doe, the

Application Instructions appear to direct sentencing courts to

apply a § 4A1.3 departure at step (f), two steps before a

defendant’s “applicable guideline range” has been set at step (h).

We agree with the Fourth Circuit that, under one

plausible reading of the Application Instructions, sentencing

courts are directed to apply § 4A1.3 departures at step (f).

Indeed, this seems to flow from common sense. Section 4A1.3

(as construed in Shoupe) and the career offender enhancement

in § 4B1.1 both may affect a defendant’s offense level and

criminal history category—and, as we reasoned in Shoupe,

because the “‘jump into the career offender category [is] done

reduced sentence is permissible “where the defendant’s pre-

departure sentencing range is found within the crack cocaine

guidelines.” 553 F.3d at 229 (emphasis in original).

In Cardosa, the First Circuit did not explicitly discuss the

Application Instructions or the policy statement in § 1B1.10.

606 F.3d 16.

28

in one step,’” permitting a departure in both offense level and

criminal history category under § 4A1.3 “is reasonable since the

district court [is] only undoing the one step.” 35 F.3d at 838

(quoting United States v. Bowser, 941 F.2d 1019, 1026 (10th

Cir. 1991)) (emphasis added). By contrast, a § 5K1.1 substantial

assistance departure does not “undo” any Guidelines application

decisions. Rather, that departure permits a court to set a

sentence outside the “applicable guideline range” based on “a

specific factor (the defendant’s cooperation) that was not

accounted for in the basic guidelines calculation.” Roa-Medina,

607 F.3d at 259.

Though we believe the Fourth Circuit’s reading of the

Application Instructions is plausible, we cannot conclude that

the Instructions unambiguously compel this conclusion, as it is

not entirely clear that step (f) encompasses a downward

departure under § 4A1.3. Section 4A1.3 is a policy statement,

and step (i) instructs sentencing courts to consider “any other

policy statements . . . in the guidelines that might warrant

consideration in imposing sentence.” U.S.S.G. § 1B1.1(i).

Thus, one could interpret the Application Instructions as

directing sentencing courts to apply a § 4A1.3 departure at the

final step (step (i)), after the “applicable guideline range” has

already been calculated. See Pembrook, 2010 WL 2499656, at

*5; Munn, 595 F.3d at 196–97 (Duncan, J., dissenting).

This competing interpretation of § 1B1.1 would be more

compelling if step (i) of the Application Instructions

29

encompassed the full universe of “other policy statements” in

the Guidelines “that might warrant consideration in imposing

sentence.” U.S.S.G. § 1B1.1(i). But that is not the case. For

example, step (h) of the Instructions specifically directs

sentencing courts to apply “parts B through G of Chapter Five”

of the Guidelines, which parts include several policy statements.

See U.S.S.G. § 5B1.3(c), (d), (e); § 5D1.3(c), (d), (e); § 5E1.5;

§ 5F1.7; § 5G1.3(c). Accordingly, step (i)’s reference to “other

policy statements” does not foreclose the possibility that step (f)

encompasses the downward departure authorized by the policy

statement in § 4A1.3.

In the end, we conclude that the Application Instructions

are ambiguous as to the step at which a sentencing court must

apply a § 4A1.3 downward departure. The Instructions do not

clearly require the departure to be applied after the “applicable

guideline range” is calculated (as the Sixth, Eighth, and Tenth

Circuits have concluded), nor do they clearly require the

departure to be applied before the “applicable guideline range”

is calculated (as the Fourth Circuit has concluded).20

20

We acknowledge that step (f) of the Application

Instructions—which directs sentencing courts to determine a

defendant’s “criminal history category as specified in Part A of

Chapter Four,” U.S.S.G. § 1B1.1(f) (emphasis added)—does not

expressly include the § 4A1.3 downward departure that

Flemming received, which also included a vertical downward

departure in offense level. However, the vertical downward

departure in offense level in Flemming’s case was the product

30

Accordingly, the Application Instructions do not, by themselves,

answer whether Flemming’s “applicable guideline range” is that

of a judicial interpretation of § 4A1.3 that the Sentencing

Commission may not have anticipated when it adopted that

provision. Cf. Shoupe, 35 F.3d at 838 (noting that “[t]he

language makes clear that an overstated criminal history triggers

departures under § 4A1.3, but does not make clear that such

departures are limited to the criminal history category”); see also

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

that “[a] Guideline may apply in situations not contemplated by

the background commentary to the Guideline”). Indeed, that the

Commission intended § 4A1.3 to authorize downward

departures in criminal history category only is confirmed by the

2003 amendment to § 4A1.3, which, as we discuss in Part

III.B.2, overrides our decision in Shoupe.

In any event, though the downward departure in both

offense level and criminal history category that Flemming

received (as a result of Shoupe) is not expressly contemplated by

the language of step (f), that does not answer whether the

Commission nonetheless intended that § 4A1.3 downward

departures be applied at that step. Cf. Munn, 595 F.3d at 192

(“Because of section 4A1.3’s placement . . . , the Commission

most likely intended for the court to grant an Overrepresentation

Departure before determining the applicable guideline range, as

part of its calculation of the criminal history category.”)

(emphasis in original).

The bottom line for us is this: we see nothing in the

Application Instructions that compels the conclusion that a

§ 4A1.3 downward departure must be applied at step (i) (the

final step) rather than step (f).

31

set by Crack Cocaine Guidelines or the Career Offender

Guidelines.

2. The 2003 Amendment to the § 1B1.1

Commentary

Our conclusion in Doe that the defendants’ “applicable

guideline range[s]” were the mandatory minimum sentences was

based not only on our reading of the Application Instructions,

but also on the Sentencing Commission’s commentary to the

policy statement in § 1B1.10, which strongly suggests that a

sentence reduction is not authorized where a defendant is

subject to a mandatory minimum sentence:

[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 . . . [the retroactive amendment in

question] 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).

Doe, 564 F.3d at 312 (quoting U.S.S.G. § 1B1.10 cmt. 1(A))

(first omission, alteration, and emphasis in original).

32

In concluding that a defendant in Flemming’s position is

not eligible for a sentence reduction, the Sixth, Eighth, and

Tenth Circuits relied heavily on a 2003 amendment to the

Guidelines, Amendment 651, that appears similarly to suggest

that a § 4A1.3 downward departure has no effect on a

defendant’s “applicable guideline range.” In particular,

Amendment 651 added, for the first time, an explicit definition

of the term “departure” to the Commentary to U.S.S.G. § 1B1.1:

“Departure” means (i) for purposes other than

those specified in subdivision (ii), imposition of

a sentence outside the applicable guideline range

or of a sentence that is otherwise different from

the guideline sentence; and (ii) for purposes of §

4A1.3 (Departures Based on Inadequacy of

Criminal History Category), 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.

U.S.S.G. § 1B1.1 cmt. n. 1(E) (2003).

This new definition of “departure” appears to indicate

that a § 4A1.3 downward departure is a departure from, rather

than to, the “applicable guideline range,” as the commentary

now states that a § 4A1.3 downward departure is applied “in

order to effect a sentence outside the applicable guideline

33

range.” Id. (emphasis added). The Sixth, Eighth, and Tenth

Circuits seized on this definition to conclude that a § 4A1.3

departure has no effect on the “applicable guideline range” for

a career offender.21 See Tolliver, 570 F.3d at 1066 (citing the

21

The Sixth Circuit Court in Pembrook found further support

for its conclusion in the policy statement in § 1B1.10, which

includes an exception to the general rule that a defendant’s

sentence may not be reduced to a term of imprisonment “that is

less than the minimum of the amended guideline range,”

U.S.S.G. § 1B1.10(b)(2)(A), where the “original term of

imprisonment imposed was less than the term of imprisonment

provided by the guideline range applicable to the defendant at

the time of sentencing,” id. § 1B1.10(b)(2)(B). In such a

circumstance, “a reduction comparably less than the amended

guideline range . . . may be appropriate.” Id.; Pembrook, 2010

WL 2499656, at *3 (reasoning that this provision “specifically

refers to the defendant’s applicable guideline range as the

guideline range that applied before the sentencing court decided

to depart . . . downward”).

We disagree. Section 1B1.10(b)(2)(B) sheds no light on

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

of a § 4A1.3 departure; it simply provides that, where that range

has been lowered by a retroactive amendment to the Guidelines,

“a reduction comparabl[e]” to that which the defendant received

at his initial sentencing—e.g., a reduction for substantial

assistance under § 5K1.1—may be applied to the amended

Guidelines range. See McGee, 553 F.3d at 228. Nothing in

§ 1B1.10(b)(2)(B) forecloses the possibility that a § 4A1.3

downward departure, unlike other kinds of departures, is applied

in determining a defendant’s “applicable guideline range.”

34

definition of “departure” added in 2003 and concluding that the

Application Instructions “effectively define all departures to be

outside the ‘applicable guideline range’”); see also Pembrook,

2010 WL 2499656, at *4; Darton, 595 F.3d at 1194.

However, we agree with the Fourth Circuit that another

Guidelines provision not considered by the Sixth, Eighth, or

Tenth Circuits—§ 1B1.11—precludes us from considering the

2003 definition of “departure” in determining Flemming’s

eligibility for a sentence reduction. Section 1B1.11 provides

that

[t]he Guidelines Manual in effect on a particular

date shall be applied in its entirety. The court shall

not apply, for example, one guideline section

from one edition of the Guidelines Manual and

another guideline section from a different edition

of the Guidelines Manual. However, if a court

applies an earlier edition of the Guidelines

Manual, the court shall consider subsequent

amendments, to the extent that such amendments

are clarifying rather than substantive changes.

U.S.S.G. § 1B1.11(b)(2) (emphasis added). Flemming was

sentenced under the 2001 edition of the Guidelines.

Accordingly, we must consider Amendment 651 if it is a

“clarifying” amendment. Id. However, if the 2003 definition

makes a “substantive change[]” to the Guidelines, we may not

35

consider it. Id.; see also United States v. Marmolejos, 140 F.3d

488, 491 (3d Cir. 1998) (courts must determine whether an

amendment “clarified the existing commentary in the Guidelines

or substantively changed its meaning”) (emphases in original).

“Generally, if [an] amended guideline and commentary

overrule[] a prior judicial construction of the guidelines, it is

substantive; if it confirms our prior reading of the guidelines and

does not disturb prior precedent, it is clarifying.” United States

v. Diaz, 245 F.3d 294, 303 (3d Cir. 2001). We recently held that

Amendment 651 overrides our holding in Shoupe because, as a

result of the new definition of “departure,” § 4A1.3 now

authorizes a departure in criminal history category only.22 See

Grier, 585 F.3d at 143. Thus, because the 2003 definition

worked a substantive change in the law, i.e., it overruled our

interpretation of § 4A1.3 in Shoupe, Amendment 651 is a

substantive amendment that we may not consider in determining

whether Flemming is eligible for a sentence reduction.23 Accord

22

Thus, had Flemming been sentenced under a post-2003

edition of the Sentencing Guidelines, he could not have received

the horizontal and vertical downward departure that the District

Court granted him at sentencing; rather, he would have been

eligible to receive (at most) a one-level downward departure in

criminal history category. See U.S.S.G. § 4A1.3(b)(3)(A).

23

This conclusion holds even if Amendment 651 were

intended by the Sentencing Commission to be clarifying. See,

e.g., United States v. Goines, 357 F.3d 469, 474 (4th Cir. 2004)

(“Even if an amendment is designed merely to elucidate the

36

Munn, 595 F.3d at 194 (noting that Amendment 651 “did more

than simply clarify the Guidelines: [i]t effected a significant

change in the law of this and nearly every other circuit”).

Importantly, both the Government and Flemming agreed at oral

argument that the 2003 definition of “departure” is a substantive

amendment for purposes of U.S.S.G. § 1B1.11.

In that light, we find the Sixth, Eighth, and Tenth

Circuit’s reasoning unpersuasive. In Tolliver, the Eighth Circuit

did not explain why it was authorized to consider the 2003

definition of “departure,” given that the defendant in that

case—like Flemming and the defendants in Munn, McGee, and

Cardosa—was sentenced under a pre-2003 edition of the

Sentencing Guidelines.24 See Munn, 595 F.3d at 193 n.12. The

defendant in the Sixth Circuit’s Pembrook decision was also

original intent of the Commission, we will regard it as

substantive if it conflicts with our precedent.”); see also United

States v. Cianscewski, 894 F.2d 74, 78 n.13 (3d Cir. 1990) (“We

do not suggest that the Sentencing Commission, by declaring

that substantive changes are intended merely as clarifications,

can amend the guidelines retroactively.”).

24

The Tenth Circuit Court also relied on the 2003 definition

of “departure” in its Darton decision, though it is unclear which

edition of the Guidelines was used when the defendant in that

case was sentenced. See 595 F.3d at 1196 (noting that the

defendant pled guilty to possession with intent to distribute

crack cocaine in November 2005, but not identifying the edition

of the Guidelines used at sentencing).

37

sentenced under a pre-2003 version of the Sentencing

Guidelines. See Pembrook, 2010 WL 2499656, at *1. But

though the Sixth Circuit Court acknowledged the Fourth Circuit

Court’s conclusion that the 2003 definition of “departure” could

not be considered in those circumstances, it (the Sixth Circuit)

nonetheless emphasized, without providing any basis for

rejecting the Munn Court’s conclusion, that § 4A1.3 “[i]n its

present form” makes clear that a downward departure under that

provision is one from the “applicable guideline range.” 25 Id. at

*4–5.

3. The 2001 Version of § 4A1.3

Not only are we precluded from considering the 2003

definition of “departure,” the 2001 version of § 4A1.3, which

lacked any such definition, appears to differ materially from the

2003 version with respect to what constitutes a defendant’s

“applicable guideline range” following a departure under that

provision. The 2001 version of § 4A1.3 provides in relevant

part:

If reliable information indicates that the criminal

history category does not adequately reflect the

seriousness of the defendant’s past criminal

25

Moreover, we note that the dissenter in Munn expressed no

disagreement with the majority’s conclusion that U.S.S.G.

§ 1B1.11 precluded the Court from considering the definition of

“departure” added in 2003.

38

conduct or the likelihood that the defendant will

commit other crimes, the court may consider

imposing a sentence departing from the otherwise

applicable guideline range.

U.S.S.G. § 4A1.3 (2001) (emphasis added). The majority in

Pembrook and the dissenter in Munn concluded that § 4A1.3’s

reference to “imposing a sentence departing from the otherwise

applicable guideline range” conveys the same meaning as the

2003 definition of “departure,” i.e., that a § 4A1.3 departure

does not affect a defendant’s “applicable guideline range.”

Pembrook, 2010 WL 2499656, at *4; Munn, 595 F.3d at 196

(Duncan, J., dissenting).

We disagree. To us, this language facially supports the

conclusion that a defendant’s “applicable guideline range” is set

after a downward departure under § 4A1.3. That is, under the

plain meaning of the word “otherwise,” § 4A1.3 appears to

contemplate that a new “applicable guideline range” results from

a downward departure pursuant to that provision, replacing the

“otherwise applicable guideline range.” See United States v.

Mobley, 956 F.2d 450, 452 (3d Cir. 1992) (“We construe terms

of the Guidelines according to their plain meaning.”); see also

Webster’s Third New Int’l Dictionary 1598 (1971) (the

definitions of the adverb “otherwise” include “in a different way

or manner,” “in different circumstances,” and “under other

conditions”). Were that not the case, the word “otherwise”

would be meaningless, as the contrary interpretation equally

39

would make sense if § 4A1.3 provided that a court may depart

“from the applicable guideline range.” Cf. Acceptance Ins. Co.

v. Sloan, 263 F.3d 278, 283 (3d Cir. 2001) (“[It is an] axiom of

statutory construction that whenever possible each word in a

statutory provision is to be given meaning and not to be treated

as surplusage.” (internal quotation marks and citation omitted)).

This reading of the 2001 version of § 4A1.3 is bolstered

when we compare its text to provisions in Chapter Five of the

Guidelines. The provisions in Parts H through K of Chapter

Five—which courts must consider at the final step of the

Application Instructions (step (i))—set forth the circumstances

in which a court may impose a sentence “outside” or “below”

“the applicable guideline range.” See U.S.S.G. §§ 5H1.1–6,

11–12, 5K2.0, 5K2.12, 5K2.13, 5K2.16, 5K2.20 (2001). By

contrast, the 2001 version of § 4A1.3 refers to a departure “from

the otherwise applicable guideline range,” presumably

contemplating that the range that results from a § 4A1.3

departure “‘subsumes and displaces the otherwise applicable

guideline range,’” Doe, 564 F.3d at 311 (quoting United States

v. Cordero, 313 F.3d 161, 162 (3d Cir. 2002)) (emphasis added),

and thus becomes “the applicable guideline range.” Applying

this reading to Flemming’s situation, the Career Offender

Guidelines range was his “otherwise applicable guideline

range,” but was replaced by the Crack Cocaine Guidelines range

as a result of the § 4A1.3 downward departure.

40

This interpretation has some surface appeal. We note,

however, that numerous variations of the term “guideline

range,” of which “otherwise applicable guideline range” appears

to be one, appear in other departure provisions located in Part K

of Chapter Five. These variations include “the range established

by the applicable guidelines,” U.S.S.G. § 5K2.0 (2001), “the

authorized guideline range,” id. §§ 5K2.1–7, “the guideline

range,” id. §§ 5K2.8–10, 5K2.14, and, more simply, “the

guidelines,” id. § 5K1.1. Other provisions in Part K make no

reference to a “guideline range” or the “applicable guideline

range,” instead simply noting the circumstances that might

warrant an upward or downward “departure,” id. §§ 5K2.17–19,

or “a reduced sentence,” id. § 5K2.11. It is undisputed that

these departures are all applied at the final step of the

Application Instructions and, when applied, result in a sentence

outside the “applicable guideline range.” However, that these

provisions do not employ the term “the applicable guideline

range” in describing such a departure may suggest that, though

the Guidelines do not use consistent terminology to describe the

range from which a sentencing court may depart in the final

step, this fact does not necessarily suggest that any particular

variation was intended to be dispositive, or even have

significance, with regard to a defendant’s eligibility for a

sentence reduction under § 1B1.10.

In sum, we conclude that the text of the 2001 version of

§ 4A1.3, like the Application Instructions, fails to answer

41

unambiguously whether Flemming’s “applicable guideline

range” is his pre- or post-§ 4A1.3 departure range.

4. The Rule of Lenity

The rule of lenity provides that “when ambiguity in a

criminal statute cannot be clarified by either its legislative

history or inferences drawn from the overall statutory scheme,

the ambiguity is resolved in favor of the defendant.” United

States v. Pollen, 978 F.2d 78, 85 (3d Cir. 1992). The rule covers

criminal prohibitions as well as penalties, see Mobley, 956 F.2d

at 452 (citing Bifulco v. United States, 447 U.S. 381 (1980)),

and applies to the Sentencing Guidelines. See United States v.

Fenton, 309 F.3d 825, 828 n.3 (3d Cir. 2002) (“[W]here . . . the

[Sentencing] Guidelines do not clearly call for enhancement, the

rule of lenity should prevent the application of a significantly

increased sentence.”); see also United States v. Simpson, 319

F.3d 81, 87 (2d Cir. 2002) (noting that “the rule of lenity is

generally applicable to the Sentencing Guidelines”).26

26

We note that two members of the Eleventh Circuit Court

are of the view that the rule of lenity is inapplicable to the

Sentencing Guidelines after Booker. See United States v.

Wright, 607 F.3d 708, 719 (11th Cir. 2010) (Pryor, J., and Fay,

J., concurring) (arguing that “the purposes of the rule of lenity

suggest that it plays no role in the interpretation of advisory

guidelines”) (emphasis added). Though our Court has not (until

today) had occasion to apply the rule of lenity to the Guidelines

since Booker, we nonetheless have addressed rule-of-lenity

42

Application of the rule of lenity requires more than a

difficult interpretative question. Rather, “[t]o invoke the rule,

we must conclude that there is a grievous ambiguity or

uncertainty in the statute.” Muscarello v. United States, 524

U.S. 125, 138–39 (1998) (internal quotation marks and citation

omitted) (emphasis added); see also Chapman, 500 U.S. at 463.

As discussed, we believe the Guidelines are “grievous[ly]

ambiguous [and] uncertain[]” as to whether Flemming’s

“applicable guideline range” is his pre- or post-§ 4A1.3

departure range. Muscarello, 524 U.S. at 139. Because both

interpretations are plausible, we apply the rule of lenity and

resolve the ambiguity in Flemming’s favor. See United States

v. Oetken, 241 F.3d 1057, 1060 (8th Cir. 2001) (“Where there

are two plausible readings of a guideline provision, we apply the

arguments without suggesting that the rule does not apply to the

now-advisory Guidelines. See, e.g., Doe, 564 F.3d at 314–15;

United States v. Lennon, 372 F.3d 535, 539–40 (3d Cir. 2004).

In any event, we need not decide in this case whether the rule of

lenity is generally applicable to the Sentencing Guidelines post-

Booker because (1) the Government has raised no such

argument, and (2) here we are faced with interpreting provisions

of the Guidelines that are not advisory. See Dillon, 130 S. Ct.

at 2694 (holding that Booker does not affect the binding nature

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

which “permits a sentence reduction within the narrow bounds

established by the Commission”). In that light, we are bound to

apply our pre-Booker caselaw, which makes clear that the rule

of lenity may apply to mandatory provisions of the Sentencing

Guidelines. See, e.g., Fenton, 309 F.3d at 828 n.3.

43

rule of lenity and give the defendant the benefit of the reading

that results in the shorter sentence.”); see also Bifulco v. United

States, 447 U.S. 381, 387 (1980) (“[T]he touchstone of the rule

of lenity is statutory ambiguity.” (internal quotation marks and

citation omitted)). We join the Second Circuit in this regard.

See McGee, 553 F.3d at 229 (applying the rule of lenity while

acknowledging that “U.S.S.G. § 1B1.10 can be read to permit a

reduced sentence only where the defendant’s pre-departure

sentencing range is found within the crack cocaine guidelines”)

(emphasis in original); see also Pembrook, 2010 WL 2499656,

at *9 (Rogers, J., dissenting) (arguing that application of the rule

of lenity is appropriate in these circumstances, as “there is no

compelling reason to read the phrase ‘applicable guideline

range’ to exclude the Guideline range that the district court

actually applied to [the defendant]”).

Though the 2003 definition of “departure” may resolve

this ambiguity, Flemming was sentenced under the 2001 edition

of the Sentencing Guidelines, and Amendment 651 is a

substantive amendment that we may not consider. In any event,

the Sentencing Commission’s decision in 2003 to add a uniform

definition of “departure” to the Guidelines—which includes a

definition specific to § 4A1.3—only bolsters our conclusion

that, at least prior to 2003, what constituted the “applicable

guideline range” for a career offender granted a downward

44

departure under § 4A1.3, and sentenced based on the Crack

Cocaine Guidelines range, was, at best, quite unclear.27

27

As noted, the Fourth Circuit concluded that the “plain text”

of § 1B1.1 unambiguously directs sentencing courts to apply a

§ 4A1.3 departure at step (f) of the Application Instructions.

Munn, 595 F.3d at 194. It suggested further that, were it

authorized to consider the 2003 definition of “departure,” the

“Guidelines would be rendered ambiguous on this point, as the

Application Instructions indicate that [a § 4A1.3] departure is to

be made before calculating the applicable guideline range, while

the commentary to those instructions—through its loose usage

of the phrase ‘applicable guideline range’—arguably suggests

otherwise.” Id. The Court concluded that, “in the face of any

such ambiguity, [it] would be obliged to apply the rule of lenity

and resolve the conflict in the defendant’s favor.” Id. (emphasis

in original).

Because the question is not before us, we do not decide

whether a career offender granted a § 4A1.3 downward

departure under a post-2003 edition of the Sentencing

Guidelines would be eligible for a sentence reduction under 18

U.S.C. § 3582(c)(2). However, in light of our conclusion that

the Application Instructions are ambiguous as to the “applicable

guideline range” for a defendant in Flemming’s position, we

have doubts that the 2003 definition—in a case where it may be

considered—results in a “grievous ambiguity” requiring

invocation of the rule of lenity. Rather, to the extent the 2003

definition provides clearer guidance as to the “applicable

guideline range” for a defendant granted a § 4A1.3 departure,

we may be required to treat that guidance as authoritative, as it

does not appear to be “inconsistent with, or a plainly erroneous

45

We reach this result aware not only of the general

policies behind retroactive amendments to the Sentencing

Guidelines, but also the particular policy underlying

Amendment 706. Cf. Moskal v. United States, 498 U.S. 103,

108 (1990) (noting that courts may consult the “motivating

policies of the statute” in determining whether application of the

rule of lenity is warranted (internal quotation marks and citation

omitted)). The Sentencing Reform Act of 1984, 98 Stat. 1987,

charged the Sentencing Commission with periodically reviewing

and revising the Guidelines, and, where warranted, authorized

the Commission to reduce retroactively the offense levels for

certain crimes. See 28 U.S.C. §§ 994(o), 994(u); see also 18

U.S.C. § 3582(c). When the Commission first promulgated the

Guidelines in 1987, it adopted offense levels for cocaine

offenses that “treated every gram of crack cocaine as the

equivalent of 100 grams of powder cocaine.” Kimbrough v.

United States, 552 U.S. 85, 96 (2007). The Commission later

attempted to alleviate this disparity and, after Congress

repeatedly failed to act, id. at 99, the Commission adopted

Amendment 706 to address what it believed were “urgent and

compelling” problems with the 100-to-1 ratio. U.S.S.G. app. C,

amend. 706, Reason for Amendment (2007).

There is no dispute that Flemming was burdened by the

very crack/powder cocaine disparity that the Sentencing

Commission sought to remedy by promulgating Amendment 706

reading of,” the Guidelines. Stinson v. United States, 508 U.S.

36, 38 (1993).

46

and making it retroactive. As noted, had Amendment 706 been

in force when Flemming was sentenced, we have little doubt the

District Court would have set a sentence within that range. In

these circumstances, we believe that rendering a defendant

ineligible for a sentence reduction—simply because he

technically qualified as a career offender, and despite a District

Court’s reasoned judgment that such a classification was

inappropriate because it overstated the seriousness of his

criminal history (in Flemming’s case, because his two predicate

offenses resulted in modest prison sentences and were

committed when he was 18 and 20-years old)—is antithetical to

the policy concerns that motivated Amendment 706. See

Cardosa, 606 F.3d at 21; Munn, 595 F.3d at 195; McGee, 553

F.3d at 229–30.

* * * * *

Application of the rule of lenity is called for only in rare

cases, and thus we stress the narrowness of our holding. We

conclude that, under a pre-2003 edition of the Sentencing

Guidelines, a career offender who is granted a § 4A1.3

downward departure to the Crack Cocaine Guidelines range is

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

Accordingly, we vacate the District Court’s order and remand

this case for the Court to exercise its discretion to determine

whether, and to what extent, a reduction in Flemming’s sentence

is warranted.

47