United States v. Jackson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0122p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 10-3923

v.

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Defendant-Appellant. -

MICHAEL D. JACKSON,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 09-00021-001—Gregory L. Frost, District Judge.

Argued: November 16, 2011

Decided and Filed: May 8, 2012

Before: MERRITT, BOGGS, and CLAY, Circuit Judges.

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COUNSEL

ARGUED: Dennis C. Belli, Columbus, Ohio, for Appellant. Laura M. Denton,

ASSISTANT UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee.

ON BRIEF: Dennis C. Belli, Columbus, Ohio, for Appellant. Laura M. Denton,

ASSISTANT UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee.

MERRITT, J., delivered the opinion of the court, in which CLAY, J., joined.

BOGGS, J. (pp. 7–15), delivered a separate dissenting opinion.

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OPINION

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MERRITT, Circuit Judge. This is a direct appeal from conviction after a guilty

plea entered by defendant Michael Jackson to one count of intent to distribute more than

five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The

presentencing report provided a sentencing range of 188-235 months due to Jackson’s

1

No. 10-3923 United States v. Jackson Page 2

status as a career offender. The district court agreed to delay Jackson’s sentencing in

anticipation that Congress would pass legislation reducing the penalties associated with

the crack cocaine laws. The case is governed, and we are bound, by the recent case of

Freeman v. United States, 131 S. Ct. 2685 (2011).

After waiting more than a year after Jackson entered his guilty plea in June 2009,

the district court decided it could wait no longer and sentenced Jackson on July 16, 2010:

[W]e waited and waited and waited to see if Congress would change the

guidelines, or the statutes, with regard to crack versus powder cocaine.

My information now indicates that it’s a dead issue in Congress and that

it’s not going to change, at least in the foreseeable future. . . . . I was

trying to give you the benefit of any change in the law that might occur,

and it doesn’t appear that it’s going to. For that, I’m sorry . . . .

Sentencing Tr. at 16. The district court did not apply the “career offender” guideline

sentence and sentenced Jackson to 150 months. This sentence was below the advisory

guideline range for a career offender and within the old advisory guideline range for

crack cocaine violations that would have otherwise applied to Jackson if he were not a

career offender. Jackson filed a timely notice of appeal on July 26, 2010. On August

3, 2010, less than three weeks after Jackson was sentenced, the Fair Sentencing Act was

signed into law and the ratio for crack versus powder cocaine was reduced from 100:1

to 18:1.1 The Sentencing Commission promulgated emergency amendments to the

1

The Fair Sentencing Act, enacted on August 3, 2010, increased the amount of crack cocaine

necessary to trigger mandatory minimum sentences. Section 8 of the Fair Sentencing Act directs the

United States Sentencing Commission to:

(1) promulgate the guidelines, policy statements, or amendments provided for in this Act

as soon as practicable, and in any event not later than 90 days after the enactment of this

Act, in accordance with the procedure set forth in section 21(a) of the Sentencing Act

of 1987 (28 U.S.C. § 994 note), as though the authority under that act had not expired;

and (2) pursuant to the emergency authority provided under paragraph (1), make such

conforming amendments to the Federal sentencing guidelines as the Commission

determines necessary to achieve consistency with other guideline provisions and

applicable law.

124 Stat. 2372, 2374 (2010).

In accordance with the above directive, the Sentencing Commission issued an emergency

amendment to the United States Sentencing Guidelines, effective November 1, 2010, that amended

§ 2D1.1(c)’s drug quantity table and reduced the base offense level for various quantities of crack cocaine.

Temporary Emergency Amendment to Sentencing Guidelines, 75 Fed. Reg. 66, 188 (Oct. 27, 2010). After

Jackson filed this appeal, the United States Sentencing Commission unanimously voted to make this

amendment, now designated Amendment 750 in Appendix C of the United States Sentencing Guidelines,

retroactive. U.S.S.G. App. C, Amend. 759. The effective date of Amendments 750 and 759 is

November 1, 2011.

No. 10-3923 United States v. Jackson Page 3

sentencing guidelines, which became effective immediately, and other amendments were

later promulgated that made the reduced guideline ranges for crack cocaine permanent

and retroactive on November 1, 2011. See U.S.S.G. App. C-Vol. III, Amend. 750

(effective Nov. 1, 2011) and Amend. 759 (making Amend. 750 retroactive effective

Nov. 1, 2011).

On appeal, defendant seeks a remand to the district court for resentencing in light

of the reduction in sentences under the crack cocaine guidelines issued by the Sentencing

Commission and made retroactive during the pendency of his appeal. The government

and the dissent contend that defendant is not eligible for any reduction because his

sentence was “based on” the career offender guidelines and not the crack cocaine

guidelines. The determination of whether an original sentence was “based on” a

sentencing range that was subsequently lowered by the Sentencing Commission is a

matter of statutory interpretation that we review de novo.

We recognize that the defendant’s criminal history required the district court to

consider the career offender guidelines, but in deciding whether the now-amended and

retroactive crack cocaine guidelines apply to defendant, we focus on the range that was

actually applied to the defendant in this case. To do otherwise is to impose a harsh

sentence on defendant when the severity of the old guidelines has been criticized by

nearly every stakeholder in the criminal justice system, as well as by Congress. It is

clear in this case that the sentencing court agreed when it took into consideration the fact

that the old crack cocaine guidelines were too harsh and would likely be amended. We

now give the district court the opportunity to revisit the sentence in light of the newly

retroactive guidelines.

I.

When the original sentencing judge decides to vary from the career offender

guideline range to some other range, it is fair to say that the sentence imposed is “based

on” the adopted range and not the career offender range. At least two ranges are in play,

and it is a fiction to look at the sentence and say only one range exists. And where, as

No. 10-3923 United States v. Jackson Page 4

here, the sentencing judge made clear his disagreement with the crack cocaine guidelines

then in effect, the opportunity to resentence is warranted in light of the revised, and now-

retroactive, guidelines.

A review of the transcript demonstrates that the district court granted Jackson a

downward variance of 38 months from the career offender guideline applicable to him

based on the “untenable” disparity in the crack versus powder cocaine sentences.

Sentencing Tr. at 16 (July 16, 2010) (“I . . . am willing to take into consideration the fact

that you find yourself in a crack versus powder cocaine disparity that I believe, and I

think any [rational]-thinking person believes, is untenable, that it really doesn’t have any

empirical support.”). The sentence fell within the upper end of the advisory range (121-

151 months) that would have applied to Jackson under the crack cocaine guidelines if

he were not a career offender.

The district court varied downward from the career offender guideline to a

sentence it believed was more reasonable based on the crack versus powder disparity —

at least as far as we can tell from the transcript. The court mentioned no other reason

that could account for the 38-month downward variance in the ultimate sentence.

Jackson’s sentence was “based on” the range produced by subtracting three levels from

the career offender guideline. The district court rejected the career guideline range in

favor of something else. The only “something else” he mentioned at the sentencing

hearing was the “untenable” disparity in crack versus powder sentencing. Although we

cannot know exactly how the court would have sentenced Jackson had the revised

guidelines been in place in July 2010, the court expressed its desire to use the lower

range in sentencing Jackson.

If a sentencing judge, having found a defendant to be a career offender, then

decides to sentence defendant below the range for career offenders and notes his policy

disagreement with the crack cocaine guidelines, ordinary review would say that the

sentence was as much “based on” the crack cocaine guidelines as the career offender

guidelines. See United States v. Swint, 442 F. App’x 614, 616 (2d Cir. 2011).

Accordingly, the crack cocaine guideline ranges, which were lowered by the Sentencing

No. 10-3923 United States v. Jackson Page 5

Commission and made retroactive during the pendency of Jackson’s direct appeal, make

defendant eligible for resentencing at the district court’s discretion. Any other reading

is contrived.

The government and the dissent take the position that the applicable range is

solely the career offender range because the defendant was eligible for sentencing

pursuant to that range. They fail to explain why that reading is more natural than the

other, more lenient, reading, especially where the Commission has repeatedly stated that

the disparity between powder and crack cocaine overstates the dangers posed by crack.

We reject the continued formalistic application of the now-advisory guidelines and

decline to adopt the narrow approach that would categorically deny a defendant the

benefit of a sentencing reduction based on a retroactive amendment to the guidelines.

We leave it to the district court to decide whether the retroactive guidelines should play

a part in the sentencing of Jackson.

II.

We also follow the explicit language in Freeman v. United States, 131 S. Ct.

2685, 2692-93 (2011), that instructs us to

isolate whatever marginal effect the since-rejected Guideline had on the

defendant’s sentence. Working backwards from this purpose,

§ 3582(c)(2) modification proceedings should be available to permit the

district court to revisit a prior sentence to whatever extent the sentencing

range in question was a relevant part of the analytic framework the judge

used to determine the sentence.

“Working backward,” the crack cocaine guidelines were clearly “a relevant part of the

analytic framework” used by the district court to determine Jackson’s ultimate sentence.

There is no language in Justice Sotomayor’s concurring opinion that would distinguish

this case from the Freeman case. The unenhanced crack guidelines were “a relevant part

of the analytic framework the judge used to determine the sentence.” The district court’s

comments from the sentencing hearing reveal that Jackson’s sentence was plainly “based

on,” at least in part, the crack guidelines. See United States v. Rivera, 662 F.3d 166,

173-75 (2d Cir. 2011).

No. 10-3923 United States v. Jackson Page 6

Section 1B1.10 of the Sentencing Guidelines does not mandate that Amendment

750 be applied retroactively, but it gives the sentencing court the discretion to apply it.

Because the issue was raised on direct appeal and Amendment 750 was made retroactive

during the pendency of the appeal, we remand the case to the district court to allow it

in the first instance to consider whether, in the exercise of its discretion, the revised and

retroactive crack cocaine guidelines should be considered in determining Jackson’s

sentence. See United States v. Coohey, 11 F.3d 97, 101 (8th Cir. 1993).2 For purposes

of judicial efficiency, we affirm but remand to the district court for the opportunity to

consider the retroactive crack cocaine guidelines sua sponte without the necessity of

Jackson filing a motion pursuant to 18 U.S.C. § 3582(c). We take no position as to

whether any change in Jackson’s sentence is warranted due to the retroactive crack

cocaine guidelines.

For the foregoing reasons, we remand the case to the district court consistent with

this opinion.

2

Ordinarily, a defendant must petition the district court for modification of sentence under Section

1B1.10. See 18 U.S.C. § 3582(c)(2). However, because Jackson raised this sentencing issue on appeal

and the amendments were made retroactive during the pendency of his direct appeal, we see no need to

force him to take this additional step. See United States v. Wales, 977 F.2d 1323, 1328 n.3 (9th Cir. 1992).

No. 10-3923 United States v. Jackson Page 7

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DISSENT

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BOGGS, Circuit Judge, dissenting. This case calls for a careful and thoughtful

analysis of the intricate interaction among cases, statutes, and the United States

Sentencing Guidelines. Under such an examination, and applying the law that we are

bound to apply, we should affirm, even if the majority perceives the result as “a harsh

sentence.” Maj. Op. at 3. I therefore respectfully dissent.

I

The facts of this case are relatively simple. The majority opinion, however, does

not include some relevant information necessary to understand the legal principles that

we are bound to apply. I therefore include a brief supplemental recitation of facts.

Michael Jackson pleaded guilty to a charge of possessing, with the intent to

distribute, more than five grams of cocaine base. His plea agreement provided:

the United States and defendant MICHAEL D. JACKSON stipulate and

agree that the defendant’s base offense level be calculated at 30 pursuant

to USSG §§ 2D1.8(a) and 1B1.3. The United States and the defendant

also stipulate and agree that, pursuant to USSG § 2D1.1(b)(1), . . . the

defendant’s specific offense characteristics should include a two-level

enhancement for possession of a dangerous weapon. Defendant

MICHAEL D. JACKSON understands that these stipulations or

agreements are not binding on the Court, and if not accepted by the

Court, the defendant will not be allowed to withdraw from the plea.

Additionally, notwithstanding the stipulations contained herein, the

defendant understands and acknowledges that he may qualify as a USSG

§ 4B1.1 career offender.

R. 52 at 5 (Plea Agreement) (italics added).

The plea agreement, then, set Jackson’s base offense level at 30. After a two-

level increase for firearm possession, a two-level decrease for acceptance of

responsibility, and a one-level decrease for timely notifying the authorities of his

intention to plead guilty, the district court determined that, under the crack-cocaine

No. 10-3923 United States v. Jackson Page 8

guidelines, Jackson’s total offense level was 29, with a criminal-history category of IV,

for a Guidelines range of 121–151 months.

As the plea agreement anticipated, however, Jackson’s two prior drug crimes

meant that he qualified as a career offender. Thus, his pleading guilty to an offense that

carried a maximum penalty of forty years of imprisonment fixed his offense level at 34.

USSG § 4B1.1(b)(2). After the three-level reduction for acceptance of responsibility and

timely notifying the authorities of his intention to plead guilty, Jackson’s final career-

offender offense level was 31. His career-offender status also meant that his criminal-

history category was automatically VI. Where, as here, “the offense level for a career

offender from the [career-offender guidelines] is greater than the offense level otherwise

applicable, the [career-offender] offense level . . . shall apply.” USSG § 4B1.1(b). At

sentencing, therefore, Jackson’s applicable Guidelines range was his career-offender

guideline range of 188–235 months.

Although the district court accepted Jackson’s plea on June 26, 2009, it did not

hold a sentencing hearing until more than one year later, on July 16, 2010. There, the

court indicated that it delayed sentencing “to see if Congress would change the

guidelines, or the statutes, with regard to crack versus powder cocaine.”1 It “was trying

to give [Jackson] the benefit of any change in the law that might occur.” However, the

court stated, the law concerning crack and powder cocaine was “not going to change, at

least in the foreseeable future,” and sentencing should go forward. The court proceeded

to explain: “The bigger problem here is not necessarily the crack versus the powder

cocaine ratio, but the career offender issue. That’s the big problem here in your case.”

Nevertheless, the district court was “willing to take into consideration the fact that

[Jackson found himself] in a crack versus powder cocaine disparity that [the court

believed was] . . . untenable [and] . . . really doesn’t have any empirical support.”

Ultimately, the district court granted Jackson a downward variance from his applicable

1

At the time Jackson was sentenced, the penalties for offenses involving cocaine in “base” or

“crack” form were equivalent to those for 100 times more cocaine in powdered form.

No. 10-3923 United States v. Jackson Page 9

guideline range, and imposed a sentence of 150 months of imprisonment and five years

of supervised release.

On July 28, 2010, less than two weeks after the district court sentenced Jackson,

Congress passed the Fair Sentencing Act of 2010. President Obama signed the Bill on

August 3, 2010. On October 18, 2010, the United States Sentencing Commission

promulgated emergency amendments to align the Sentencing Guidelines with the Fair

Sentencing Act’s new rules.2 United States Sentencing Commission, Supplement to the

2010 Guidelines Manual 2 (2010). The emergency amendments took effect

November 1, 2010. The Sentencing Commission made the amendments final, and

expressly retroactive, on November 1, 2011. The Fair Sentencing Act itself, however,

does not apply retroactively. United States v. Carradine, 621 F.3d 575, 580 (6th Cir.

2010).3

II

The issue this appeal presents is whether a defendant who pleads guilty to

possession with the intent to distribute crack-cocaine, but has an applicable guideline

range determined entirely by the career-offender guidelines, is entitled to remand for re-

sentencing because of an expressly retroactive change to the crack-cocaine guidelines

scheme. The answer is a clear “no.”

A

We have long held that, when a defendant’s case is on appeal and “an

amendment . . . applies retroactively under § 1B1.10(c), the proper procedure is for this

court to affirm the sentence but to remand for consideration of whether the prisoner is

entitled to a sentence reduction under § 3582(c).” United States v. Poole, 538 F.3d 644,

2

The final rules appear in the Federal Register in May 2011, and took effect November 1, 2011.

76 Fed. Reg. 24960 (May 3, 2011).

3

The Supreme Court recently heard argument in two now-consolidated cases, presenting the

question whether the Fair Sentencing Act applies to defendants who committed crimes before the Act’s

effective date, but were sentenced after the Act took effect. Dorsey v. United States, No. 11-5683 (2011);

Hill v. United States, No. 11-5721 (2011). This scenario differs from Jackson’s, since Jackson both

committed his crime and was sentenced before the Act took effect.

No. 10-3923 United States v. Jackson Page 10

646 (6th Cir. 2008) (emphasis added); see also United States v. Simmons, 587 F.3d 348,

366 (6th Cir. 2009) (“[W]e nevertheless remand because Simmons is entitled to a

‘second look’ consideration pursuant 18 U.S.C. § 3582(c).”) (emphasis added); United

States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997) (explaining that purpose of remand

is “the opportunity to present an 18 U.S.C. § 3582(c)(2) motion for a reduction in

sentence.”). If, however, the amendment would not “alter the Guidelines range for this

particular defendant,” remand is unnecessary and inappropriate because the district court

does not have the authority to modify its original sentence. Simmons, 587 F.3d at 367.

Our published cases, then, require a two-step analysis in a case like this one.

First, the court must affirm the sentence, since, as we explained in Ursery, “[t]he current

sentence is not erroneous, because it was properly imposed based on the guidelines in

effect at the time of sentencing.” 109 F.3d at 1137. Second, we must determine whether

the defendant could qualify for a sentence reduction under the limited authority of

§ 3582(c)(2). Only if we answer this second question in the affirmative may we remand.

Simmons, 587 F.3d at 366 (“the proper procedure for this court to follow is to affirm the

sentence and remand if the amendment would alter the Guidelines range for this

particular defendant.”) (emphasis added); see also United States v. Wright, 428 F. App’x

608, 611–12 (6th Cir. 2011).

The majority accepts its first obligation, affirming Jackson’s sentence. It does

not take up its second charge. Nor could it, if it would lawfully reach its result here: a

remand. See infra Part II.B. Instead, the majority remands with the somewhat cryptic

instruction that the district court may “consider the retroactive crack cocaine guidelines

sua sponte without the necessity of Jackson filing a motion pursuant to 18 U.S.C.

§ 3582(c).” Maj. Op. at 6.

If the majority means that Jackson need not file a § 3582(c) motion for the

district court to consider changing his sentence, that instruction is perfectly acceptable.

Ursery, citing the same Ninth Circuit footnote as the majority, explained that, while

“ordinarily a defendant must first petition the district court for a sentence reduction . .

. if the issue is raised for the first time on appeal, the court of appeals may remand for

No. 10-3923 United States v. Jackson Page 11

consideration of the request.” 109 F.3d at 1138. If, however, the majority means that

the district court, on remand, need not consider § 3582(c)(2), it has patently exceeded

its authority. “A district court may modify a defendant’s sentence only as authorized by

statute.” United States v. Pembrook, 609 F.3d 381, 383 (6th Cir. 2010). The statute

authorizing modification based on a retroactive change to the Sentencing Guidelines is

18 U.S.C. § 3582(c)(2). On remand, the district court must adhere to the strictures of

that statute. We have no power to authorize a different result.

B

“Federal courts are forbidden, as a general rule, to modify a term of

imprisonment once it has been imposed, but the rule of finality is subject to a few narrow

exceptions.” Freeman v. United States, 131 S.Ct. 2685, 2690 (2011) (internal quotation

omitted). Among these is 18 U.S.C. § 3582(c)(2), which permits re-sentencing when “a

defendant . . . has been sentenced to a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing Commission . . . if such a

reduction is consistent with applicable policy statements issued by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added). The Sentencing Commission’s

policy statement provides: “A reduction in the defendant’s term of imprisonment is not

consistent with this policy statement and therefore is not authorized under 18 U.S.C.

§ 3582(c)(2) if . . . [an expressly retroactive] amendment . . . does not have the effect of

lowering the defendant’s applicable guideline range.” USSG § 1B1.10(a)(2)(B).

Therefore, unless Jackson’s applicable guideline range would change because of the

newly amended crack-cocaine guidelines, he is not eligible for re-sentencing.

“The term ‘applicable guideline range’ in USSG § 1B1.10 refers to a defendant’s

pre-departure guideline range.”4 United States v. Pembrook, 609 F.3d 381, 384 (6th Cir.

4

The meaning of “applicable guideline range” in U.S.S.G. § 1B1.10 had “sharply divided the

circuits.” United States v. Rivera, 662 F.3d 166, 172 (2d Cir. 2011).

The First, [Second,] Third and Fourth Circuits [had held] . . . that when the sentencing

judge departs from a career offender range to the range established by the offense

guideline, a modification under § 3582(c)(2) is available if the latter range has been

lowered by the retroactive amendment. The Sixth, Eighth and Tenth Circuits . . . held

otherwise, declaring such defendants ineligible for reductions on the ground that their

No. 10-3923 United States v. Jackson Page 12

2010); USSG § 1B1.10, cmt. 1(a). At sentencing, Jackson’s pre-departure Guideline

range, and therefore also his applicable guideline range, was his career-offender range.

This is so because his career-offender offense level was higher than his crack-cocaine

offense level, and because his criminal-history category was automatically VI, by virtue

of his classification as a career-offender. Id. at § 4B1.1(b). Today, Jackson’s applicable

guideline range would still be his career-offender range. Indeed, that range is no

different today than it was the day the district court sentenced him. The career-offender

guidelines use statutory maximum sentences to determine offense levels. Id. at

§ 4B1.1(b)(1)–(7). At sentencing, Jackson faced a statutory maximum of forty years.

Under the Fair Sentencing Act, possession with the intent to distribute five grams of

crack cocaine would carry a maximum sentence of twenty years. Jackson, however,

could not take advantage of this change because the Fair Sentencing Act, itself, is not

retroactive. Carradine, 621 F.3d at 580. Thus, he would still face a statutory maximum

of forty years for his pre-Fair Sentencing Act crime, and his career-offender guidelines

range would not change. Jackson’s crack-cocaine guidelines range, of course, would be

lower today than it was in July of 2010. But just as Jackson’s higher career-offender

range was the applicable guideline range at sentencing, so it is the applicable guideline

sentences were “based on” the career offender guideline, which has not been amended,

despite each sentencing judge having departed from that guideline to the range provided

by the offense guideline.

Id. at 172 n.5. In its 2011 amendments, the Sentencing Commission resolved this split, adopting our

circuit’s view by amending the commentary to § 1B1.10. See USSG, App’x C, Amend. 759. Now the

commentary to § 1B1.10 explains:

Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an

amendment listed in subsection (c) that lowers the applicable guideline range (i.e., 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 provision in the Guidelines Manual or any variance). Accordingly, 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: (i) none of the

amendments listed in subsection (c) is applicable to the defendant; or (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 guideline or statutory provision.

USSG § 1B1.10, cmt. 1(a) (emphasis added). Because this policy statement is binding in a § 3582(c)

proceeding, see Dillon v. United States, 130 S. Ct. 2683, 2693 (2010); USSG § 1B1.10, cmt. Background

(“The Supreme Court has concluded that proceedings under section 3582(c)(2) are not governed by United

States v. Booker, 543 U.S. 220 (2005), and this policy statement remains binding on courts in such

proceedings.”), the Sentencing Commission’s interpretation of the term “applicable guideline range,”

which comports with our precedent, controls.

No. 10-3923 United States v. Jackson Page 13

range now. USSG § 4B1.1(b); Pembrook, 609 F.3d at 384. Therefore, the amended

crack-cocaine guidelines do not “have the effect of lowering the defendant’s applicable

guideline range,” USSG § 1B1.10(a)(2)(B), and “[a] reduction in the defendant’s term

of imprisonment . . . is not authorized under 18 U.S.C. § 3582(c)(2).” Ibid. See also

United States v. Curet, 670 F.3d 296, 309 (1st Cir. 2012) (“While the amendments to the

guidelines are retroactive, they are of no help to Curet because he is a career offender.

If only the amended guidelines were the basis for the sentence, Curet would have a

somewhat reduced base offense level under the amended drug quantity table . . . . But

this base offense level is irrelevant given Curet’s career offender status. . . . [His] career

offender offense level . . . renders irrelevant any reduction in the base offense level.”).

In this scenario, we must, according to our circuit’s published cases, affirm

without remanding. Poole, 538 F.3d at 646; Simmons, 587 F.3d at 366. Nor should we

remand so that Jackson may make an argument that he is quite literally bound to lose.

Far from being “contrived,” Maj. Op. at 5, “formalistic,” ibid., or “a fiction,”

Maj. Op. at 3, this is the outcome that our precedents, and the statutes and Guidelines

that we are obligated to apply, compel. This outcome may not accord with a preference

that Jackson not receive “a harsh sentence,” id. at 3, or for a different, “more-lenient,

reading” of federal sentencing law, id. at 5, but binding cases and statutes require it.

III

Freeman does not compel a contrary conclusion. In Freeman, the Supreme

Court addressed “whether defendants who enter into plea agreements that recommend

a particular sentence as a condition of the guilty plea may be eligible for relief under

§ 3582(c)(2).” Freeman, 131 S. Ct. at 2690. Justice Kennedy’s plurality opinion argued

that the answer was an unqualified “yes,” reasoning that: “[e]ven when a defendant

enters into an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose

the recommended sentence is likely to be based on the Guidelines; and, when it is, the

defendant should be eligible to seek § 3582(c)(2) relief.” Id. at 2695.

No. 10-3923 United States v. Jackson Page 14

Justice Sotomayor wrote a concurring opinion, which took a slightly different

tack. As a rule, she reasoned,

the term of imprisonment imposed by a district court pursuant to an

agreement authorized by Federal Rule of Criminal Procedure 11(c)(1)(C)

is “based on” the agreement itself, not on the judge’s calculation of the

Sentencing Guidelines. However, I believe that if a (C) agreement

expressly uses a Guidelines sentencing range applicable to the charged

offense to establish the term of imprisonment, and that range is

subsequently lowered by the United States Sentencing Commission, the

term of imprisonment is “based on” the range employed and the

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

Id. at 2695. Justice Sotomayor’s opinion, in other words, holds that, when a plea

agreement expressly incorporates a guidelines range, rather than a specific term of

imprisonment, the defendant’s sentence is “based on” the Sentencing Guidelines, and

is thus amenable to review under § 3582(c). Her opinion does not address the meaning

of “applicable guideline range” in USSG § 1B1.10, and therefore leaves Pembrook’s

holding and the Sentencing Commission’s determination on that point undisturbed.

Justice Sotomayor’s concurrence, we have explained, qualifies as Freeman’s holding

because it “is the narrowest ground for the Court’s decision.” United States v. Smith,

658 F.3d 608, 611 (6th Cir. 2011).

Although it does not change the proper interpretation of the phrase “applicable

guideline range,” Freeman does resolve a threshold question that has some bearing on

this case. Jackson’s plea agreement specifically provides for sentencing pursuant to the

Guidelines. Thus, his sentence is “based on” the Guidelines, rather than his Rule 11(c)

plea agreement. See Freeman, 131 S. Ct. at 2695. This means that Jackson’s having

been sentenced after signing a Rule 11(c) plea agreement does not prevent him from

seeking relief under § 3582(c)(2) at the threshold.

What Freeman does not do, however, is vitiate Jackson’s obligation to satisfy

§ 3582(c)(2)’s requirements before he is eligible for relief. Thus, for the district court

to have the power even to consider re-sentencing, Jackson would have to show both:

(1) that he was sentenced “based on” a guideline that was subject to an expressly

No. 10-3923 United States v. Jackson Page 15

retroactive amendment to the Sentencing Guidelines; and (2) that “a reduction [in

sentence] is consistent with applicable policy statements issued by the Sentencing

Commission,” to wit: USSG § 1B1.10. 18 U.S.C. § 3582(c)(2).

Thus, even if I were to accept the majority’s claim that, because of Freeman,

Jackson’s sentence was “based on” the crack-cocaine guidelines—which I do only for

the sake of argument—he still would not qualify for relief. As explained above,

Jackson’s applicable guideline range was at sentencing, and still is today, his career-

offender range. Where, as here, an expressly retroactive amendment “does not have the

effect of lowering the defendant’s applicable guideline range,” “[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).” USSG § 1B1.10(a)(2)(B).

Hence, even accepting the majority’s position about the basis of Jackson’s sentence in

light of Freeman, remand still would not be proper because the expressly retroactive

amendment to the crack-cocaine guidelines did nothing whatsoever to change Jackson’s

“applicable guidelines range.” Pembrook, 609 F.3d at 384.

IV

This case is complex, but it is not close. Principled application of the precedents

that we are bound to apply can lead to only one conclusion: the panel must affirm

Jackson’s sentence, and Jackson is not entitled to remand. I therefore respectfully

dissent.