United States v. Albert Savani

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 11-4359/11-4494/12-1034

___________

UNITED STATES OF AMERICA

v.

ALBERT SAVANI, aka Pops,

Appellant in No. 11-4359.

UNITED STATES OF AMERICA

v.

SEAN HERBERT, a/k/a Bounty

SEAN HERBERT,

Appellant in No. 11-4494.

UNITED STATES OF AMERICA

v.

RICHARD ROE,

Appellant in No. 12-1034.

___________________________

On Appeal from the United States District Court

for the Middle District and the Eastern District of

Pennsylvania

(D. C. Nos. 3-07-cr-00393-001; 3-06-cr-00283-001;

2-07-cr-00283-001)

District Judges: Honorable Michael M. Baylson,

Honorable Thomas I. Vanaskie and

Honorable James M. Munley

____________________________

Argued on July 12, 2012

Before: FUENTES, HARDIMAN and ROTH, Circuit

Judges

(Opinion filed: June 10, 2013)

James V. Wade, Esquire

Federal Public Defender

Middle District of Pennsylvania

Frederick W. Ulrich, Esquire

2

Assistant Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Counsel for Appellants Albert Savani

and Sean Herbert

Sarah S. Gannett, Esquire (Argued)

Assistant Federal Defender

Christy Unger, Esquire

Brett G. Sweitzer, Esquire

Assistant Federal Defender

Supervising Appellate Attorney

Leigh M. Skipper, Esquire

Chief Federal Defender

Federal Community Defender Office

Eastern District of Pennsylvania

Suite 540 West – Curtis Center

601 Walnut Street

Philadelphia, PA 19106

Counsel for Appellant Richard Roe

Bernadette A. McKeon, Esquire

Kathy A. Stark, Esquire

Robert A. Zauzmer, Esquire (Argued)

Office of the United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

3

____________

OPINION

____________

ROTH, Circuit Judge:

The question presented in this consolidated appeal is

whether appellants, Albert Savani, Sean Herbert, and Richard

Roe,1 are eligible for reductions of their sentences pursuant to

18 U.S.C. § 3582(c)(2). In each case, the appellant was

convicted of a cocaine base (crack) related offense, the

government moved for a downward departure due to the

appellant’s substantial assistance, and the District Court

granted the departure and sentenced the defendant below the

statutory mandatory minimum. Shortly thereafter,

the Fair Sentencing Act of 2010 (FSA) became law, and the

United States Sentencing Commission approved Amendment

750, a retroactive amendment, which lowered the base

offense levels applicable to crack cocaine offenses. In light

of Amendment 750, appellants moved to further reduce their

sentences.

Despite the government’s willingness at the time of the

original sentencing to have appellants sentenced below the

mandatory minimum sentence, the government opposed the

FSA motions in each case on the basis that the original

1

On February 27, 2012, Roe filed an unopposed motion to

proceed under pseudonym, which we will grant.

4

sentences were governed by the mandatory minimums. The

government contends that in this situation, in which the

guidelines range is below the statutory mandatory minimum

sentence, the mandatory minimum is defined as the

―guideline sentence.‖ Although the qualifying amount of

cocaine base necessary to trigger the mandatory minimum

sentence has now been increased, the government asserts

nevertheless that the duration of the statutorily required

minimum sentence, the ―guideline sentence,‖ has not been

changed; thus, the appellants are still subject to the mandatory

minimum sentence. The district courts denied the motions on

this basis.

On appeal, appellants contend that the district courts

erred in denying their motions because (1) their terms of

imprisonment were, at least in part, based on a sentencing

range that has subsequently been lowered by the Sentencing

Commission and (2) a sentence reduction is consistent with

the applicable policy statements issued by the Sentencing

Commission. With respect to the latter, appellants assert that

this Court’s interpretation in United States v. Doe, 564 F.3d

305 (3d Cir. 2009), of the term ―applicable guideline range‖

is superseded by the Sentencing Commission’s November

2011 revisions to the Guidelines, which included, for the first

time, a definition of the phrase ―applicable guideline range.‖

For the reasons set forth below, we agree that Doe has been

superseded. We conclude that defendants, who are convicted

of crack cocaine offenses and whose original sentences were

below the mandatory minimum applicable to them because of

substantial assistance to the government, are not barred for

policy reasons from seeking a reduction of sentence pursuant

to § 3582(c)(2). We will, therefore, vacate the orders of the

district courts and remand these cases for further proceedings.

5

I. Background

The facts regarding Savani, Herbert, and Roe are

essentially similar.

A. Albert Savani

In May 2008, Savani entered into a cooperation plea

agreement with the government and pled guilty to one count

of conspiracy to distribute, and to possess with intent to

distribute, more than 50 grams of crack cocaine, in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. At that

time, the base offense level dictated by the crack cocaine

guideline for this conviction was 30. See U.S.S.G. § 2D1.1(c)

(Nov. 2007). Savani received a two-level reduction for his

minor role in the offense and a three level reduction for

acceptance of responsibility, yielding a total adjusted offense

level of 25. Based upon his total offense level of 25 and a

criminal history category of II, Savani’s initial guideline

sentencing range was 63-78 months of imprisonment. See

U.S.S.G. § 5A. However, because of the amount of crack

cocaine involved in the offense, Savani was subject to a ten-

year mandatory minimum sentence, pursuant to 21 U.S.C.

§ 841(a)(1)(A). See U.S.S.G. § 1B1.1(h) (Nov. 2007).

Therefore, his guideline sentence was deemed to be 120

months. See U.S.S.G. § 5G1.1(b) (―Where 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.‖).

The plea agreement also provided that, if Savani

provided substantial assistance to the government, the

government might request the court to depart below the

6

applicable mandatory minimum, the applicable guideline

range, or both, when imposing his sentence. At Savani’s

sentencing, the government moved, pursuant to 18 U.S.C.

§ 3553(e) and U.S.S.G. § 5k1.1, for the court to depart from

the mandatory minimum and to impose a sentence within the

Sentencing Guidelines range of 63 to 78 months’

imprisonment. The District Court not only granted the

motion to depart, it departed further than the government had

requested and imposed a sentence of 46 months, which was

below the mandatory minimum.

Savani died on January 29, 2013.

B. Sean Herbert

In January 2008, Herbert entered into a cooperation

plea agreement with the government and pled guilty to one

count of possession with intent to distribute in excess of 50

grams of crack cocaine and powder cocaine, in violation of §§

841(a)(1) and 841(b)(1)(A). In the plea agreement, the

parties agreed that Herbert was involved in the distribution of

more than 50 and less than 150 grams of crack cocaine and

more than 300 grams and less than 400 grams of powder

cocaine. They also agreed that a sentence within the

applicable range of the Sentencing Guidelines would be a

reasonable sentence. At that time, the base offense level

dictated by the crack cocaine guideline for Herbert’s

conviction was 30. See § 2D1.1(c) (Nov. 2007). After

receiving a three level downward adjustment, his total

adjusted offense level was 27. Based upon this total offense

level and his criminal history category of III, Herbert’s initial

guideline sentencing range was 87-108 months of

imprisonment. See § 5A. However, because of the amount of

7

crack cocaine involved in the offense, Herbert was subject to

a ten-year mandatory minimum, under § 841(a)(1)(A). See §

1B1.1(h) (Nov. 2007). Therefore, the guideline sentence was

deemed to be the 120 months mandatory minimum. See §

5G1.1(b).

The plea agreement also provided that if Herbert

provided substantial assistance to the government, the

government might request a departure below the statutory

mandatory minimum and/or the guideline range. At Herbert’s

June 2008 sentencing, the government moved, pursuant to §

3553(e) and U.S.S.G. § 5k1.1, for the court to depart below

the applicable mandatory minimum to impose a sentence of

110 months. The District Court granted the motion and, after

considering additional factors, sentenced Herbert to 98

months of incarceration.

C. Richard Roe

In April 2008, Roe entered into a cooperation plea

agreement with the government and pled guilty to two counts

of distribution of five grams or more of crack cocaine and two

counts of distribution of 50 grams or more of crack cocaine,

all in violation of § 841(a)(1). As part of the plea agreement,

he stipulated that his offense involved 189.6 grams of crack

cocaine. At that time, the base offense level for that amount

of crack cocaine was 32, see § 2D1.1(c) (Nov. 2007); Roe

then received a three-level reduction for acceptance of

responsibility, yielding a final offense level of 29. With this

offense level and his criminal history category of V, Roe’s

initial guideline sentencing range was 140-175 months’

imprisonment. See § 5A. However, due to a prior drug

conviction, Roe was subject to a statutory mandatory

8

minimum sentence of 240 months. See 21 U.S.C.

§ 841(b)(1)(B); § 1B1.1(h) (Nov. 2007). Because the

mandatory minimum sentence exceeded the initial guideline

sentencing range, the mandatory minimum became the

guideline sentence. See § 5G1.1.

Roe’s plea agreement also contained a provision that if

he provided substantial assistance to the government, it might

move for a sentence below the statutory mandatory minimum.

At Roe’s April 2008 sentencing, the government moved

under § 5K1.1 and § 3553(e) for a reduction of Roe’s

sentence. The District Court granted the government’s

motion and sentenced Roe to 96 months’ imprisonment.

D. Fair Sentencing Act of 2010

On August 3, 2010, after appellants’ sentencings, the

FSA became law. Designed as ―[a]n Act To restore fairness

to Federal cocaine sentencing,‖ United States v. Dixon, 648

F.3d 195, 197 (3d Cir. 2011) (quoting Fair Sentencing Act of

2010, Pub. L. 111–220, § 2, 124 Stat. 2372, 2372 (2010)), one

provision of the FSA modified the mandatory minimum crack

cocaine penalties by raising the quantities required to trigger

the five-year and ten-year mandatory minimum penalties, id.

(citing Pub. L. 111–220, § 2). These changes reduced the

disparity in triggering quantity between powder cocaine and

crack cocaine from 100:1 to approximately 18:1. Id.

The FSA also directed the Sentencing Commission to

promulgate emergency amendments to conform the

Sentencing Guidelines to the statutory changes. Id. (citing

Pub. L. No. 111-220, § 8). The Sentencing Commission

complied with this directive by issuing temporary emergency

9

guideline amendments in 2010, see id. at 197-98 (citing

U.S.S.G. Supp. to App. C, amend. 748 (Supp. 2010)

(amending U.S.S.G. § 2D1.1(c)) (effective Nov. 1, 2010)),

which became permanent and retroactively applicable on

November 1, 2011, see U.S.S.G., App. C., amends. 750, 759.

One of these, Amendment 750, amended U.S.S.G. § 2D1.1,

reducing by the same 18:1 ratio the amount of crack cocaine

necessary to trigger the mandatory minimums. See U.S.S.G.,

App. C., amend. 750.

Based upon Amendment 750, appellants filed motions

for reduction of sentence pursuant to § 3582(c)(2). In all

three cases, the district courts denied the motions.2 These

appeals followed.

II. Jurisdiction

The district courts had jurisdiction pursuant to 28

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

and our review is plenary. Doe, 564 F.3d at 307 n.2.

III. Discussion

Congress has generally prohibited district courts from

―modify[ing] a term of imprisonment once it has been

imposed.‖ 18 U.S.C. § 3582(c). Section 3582(c)(2),

2

In Savani and Herbert, the district courts denied the

motions without explanation. In Roe, the court applied §

3582(c)(2) and concluded that a sentencing reduction would

not be consistent with the applicable policy statements issued

by the Sentencing Commission.

10

however, offers a limited exception to this general rule of

finality:

[I]n the case of a defendant who has been

sentenced to a term of imprisonment based on a

sentencing range that has subsequently been

lowered by the Sentencing Commission

pursuant to 28 U.S.C. 994(o), upon motion of

the defendant . . . the court may reduce the term

of imprisonment, . . . if such a reduction is

consistent with applicable policy statements

issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

In United States v. Flemming, 617 F.3d 252, 257 (3d

Cir. 2010), we interpreted this provision to provide that if a

defendant fails to satisfy either of these conditions, a

sentencing range lowered by the Sentencing Commission or a

reduction consistent with the applicable policy statements, the

court cannot consider a sentence reduction. Id. On the other

hand, if the defendant satisfies both requirements, the district

court may exercise its discretion to determine whether a

reduction of sentence is merited. Id.

In considering whether appellants are eligible for a

reduction of sentence, we turn first to the second condition

because that is the condition which we held in Doe prevented

offenders, who were subject to a mandatory minimum

sentence, from seeking relief under the FSA.

Doe also involved offenders who had been sentenced

below the mandatory minimum. John and Jane Doe were

11

sentenced respectively to 84 and 41 months’ imprisonment.

Doe, 564 F.3d at 307-08. Their sentences reflected a

downward departure, pursuant to 18 U.S.C. § 3553(e) and

U.S.S.G. § 5K1.1, from their statutory mandatory minimum

sentences of life imprisonment for John and 20 years for Jane.

Their mandatory minimums exceeded their initial guideline

sentencing ranges of 151-188 months imprisonment for John

and 121-151 months for Jane. Doe, 564 F.3d at 307-08.

After the Does were sentenced, the Sentencing Commission

promulgated Amendment 706, a retroactive amendment,

which revised § 2D1.1 by lowering the base offense levels for

most quantities of crack cocaine. Id. at 308. The Does then

filed motions for sentencing reductions under § 3582(c)(2),

id., contending that they were eligible for resentencing

because Amendment 706 lowered their ―applicable guideline

ranges,‖3 id. at 311.

Because at that time the Sentencing Guidelines failed

to contain a definition of the phrase ―applicable guideline

range,‖ the Doe Court examined the Application Instructions

contained in U.S.S.G. § 1B1.1 for guidance. Based upon its

interpretation of these instructions, the Court reasoned that

the Guidelines ―language and structure‖ established that the

3

The term ―applicable guideline range‖ appears in U.S.S.G.

§ 1B1.10, Reduction of Term of Imprisonment as a Result of

Amended Guideline Range (Policy Statement), which

provides for the reduction of sentences pursuant to §

3582(c)(2). One exclusion barring such a reduction occurs if

the amendment does not have the effect of lowering the

defendant’s ―applicable guideline range.‖ § 1B1.10(2)(B).

12

term ―applicable guideline range‖ in § 1B1.10(a)(2)(B)

referred to the sentence calculated under § 5G1.1(b). Id. at

311. In that regard, the Court noted that the Application

Instructions for the Guidelines specified that they must be

applied in a particular order, see U.S.S.G. § 1B1.1 (Nov.

2007), with the eighth and last step in the procedure being the

calculation of all statutory mandatory minimums under §

5G1.1(b). Therefore, although the crack cocaine offense level

along with the criminal history category guideline determined

the initial guideline sentencing range, it was not the

―applicable guideline range‖ because the mandatory

minimum sentence replaced it and served as the basis for

calculating the defendant’s final pre-departure sentence.4 See

Doe, 564 F.3d at 311. In other words, the Doe Court

concluded that ―applicable guideline range‖ referred to the

guideline sentence determined by the statutory mandatory

minimum, which was the end product under § 1B1.1(a).

Flemming, 617 F.3d at 262.

It is not disputed that this interpretation of ―applicable

guideline range‖ leaves appellants ineligible for relief.

However, the situation has changed. Since our Doe opinion,

the definition of ―applicable guideline range‖ has been added

to the guidelines by the retroactive November 2011

amendment which revised Application Note 1(A) to the

4

In a concurring opinion Judge Fuentes noted that the

language of § 1B1.10 ―barely favors the majority’s

interpretation‖ and that ―further guidance from the Sentencing

Commission‖ on the meaning of the term ―applicable

guideline range‖ would be beneficial. Doe, 564 F.3d at 318

(Fuentes, J., concurring).

13

commentary of § 1B1.10. According to the revised

commentary, the ―applicable guideline range‖ is ―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.‖

U.S.S.G. § 1B1.10 cmt. n.1(A) (2011). Appellants contend

that the Sentencing Commission intended this definition to

supersede Doe and to clarify that ―applicable guideline range‖

refers to the initial guideline range as determined by the

intersection of the offense level and criminal history category

under § 5A. The government, on the other hand, argues that

the newly provided definition supports the Doe Court’s

interpretation of ―applicable guideline range.‖

Although we, as a three-judge panel, are generally

bound by prior decisions of this Court, we ―may reevaluate a

precedent in light of intervening authority and amendments to

statutes or regulations.‖ Reich v. D.M. Sabia Co., 90 F.3d

854, 858 (3d Cir. 1996) (citing United States v. Joshua, 976

F.2d 844, 853 (3d Cir. 1992) (holding that a panel is ―free to

consider the [Sentencing] Commission’s [newly adopted

interpretive] commentary and, based thereon, reach a decision

contrary to the holdings of [prior precedent]‖)). Thus, in light

of the Commission’s amendments, we will revisit the Doe

Court’s prior interpretation of ―applicable guideline range.‖

We will keep in mind that guidelines commentary,

interpreting or explaining the application of a guideline, is

binding on us when we are applying that guideline because

we are obligated to adhere to the Commission’s definition.

See Stinson v. United States, 508 U.S. 36, 43 (1993).

In support of their position, appellants point out that

the terminology the Commission selected for the description

14

of ―applicable guideline range‖ mirrors, in-part, the language

of § 1B1.1(a)(7). Section 1B1.1(a)(7) requires the sentencing

court to calculate a defendant’s initial guideline sentence by

―[d]etermin[ing] the guideline range‖ from the table in § 5A

―that corresponds to the offense level and criminal history

category determined‖ in steps (a)(1)-(a)(6). § 1B1.1(a)(7)

(emphasis added). In Application Note 1(A) of § 1B1.10, the

Sentencing Commission defines ―applicable guideline range‖

as ―the guideline range that corresponds to the offense level

and criminal history category determined pursuant to §

1B1.1(a) . . . .‖ § 1B1.10 cmt. n.1(A) (2011) (emphasis

added).

We presume that this choice of language by the

Sentencing Commission is deliberate. Appellants contend

that the Sentencing Commission’s choice to incorporate this

language into the new definition of ―applicable guideline

range‖ demonstrates the Commission’s intent to define the

phrase as the initial guidelines sentencing range calculated

under § 5A; if the Commission had not intended such a result,

it would not have utilized this language. Appellants urge that

the sentencing range ascertained at § 1B1.1(a)(7) is the result

of the culmination of steps § 1B1.1(a)(1)-(a)(6), i.e., that the

steps of § 1B1.1(a)(1)-(a)(6) are the prerequisite steps the

sentencing court must proceed through before it can reach

step § 1B1.1(a)(7) and determine the range associated with

the offense level and criminal history category. Thus, the

definition’s reference to § 1B1.1(a), combined with the

inclusion of terminology that mirrors § 1B1.1(a)(7), indicates

that the Commission intended ―applicable guideline range‖ to

refer to the intersection between the offense level and

criminal history category at § 1B1.1(a)(7), not the sentence

15

required by a mandatory minimum as subsequently

determined at step § 1B1.1(a)(8).5

Although we find appellants’ argument logical,

nonetheless there is ambiguity in the Sentencing

Commission’s new definition of ―applicable guideline range.‖

It is not expressly stated that the Commission intended the

term ―applicable guidelines range‖ as calculated under §

1B1.1(a) to refer only to the steps of § 1B1.1(a)(1)-(a)(7) and

not to include § 1B1.1(a)(8). Accordingly, a second

interpretation exists, i.e., that a defendant’s ―applicable

guideline range‖ includes all eight steps delineated under §

1B1.1(a), including § 1B1.1(a)(8). This approach is

supported by the language of the amendment that the

―applicable guideline range‖ is ―determined before

consideration of any departure provision in the Guidelines

Manual or any variance.‖ § 1B1.10 cmt. n.1(A) (2011).

Sections 1B1.1(b) & (c) provide when departure provisions

and variances must be applied. This competing

interpretation, advocated by the government, assumes that

because the sentencing court must consider all eight steps of §

1B1.1(a) before it applies §§ 1B1.1(b) & (c), a defendant’s

―applicable guideline range‖ cannot be ascertained until all

eight steps of § 1B1.1(a) have been completed.

5

This reading conforms to the reality of the sentencing

process. A defendant is not assigned a new offense level or

criminal history category by operation of the mandatory

minimum. Rather, the guideline range that is applicable to

that offense level and criminal history category is simply

trumped by the mandatory minimum sentence when the

sentencing court applies step § 1B1.1(a)(8).

16

On the other hand, a reading of ―applicable guideline

range‖ as the range calculated at step § 1B1.1(a)(7) would be

entirely consistent with the Commission’s definition of the

phrase, as long as step § 1B1.1(a)(8) was considered before

applying §§ 1B1.1(b) and (c).

In the end, we must conclude that the definition of

―applicable guideline range‖ contained in the revised

Application Note 1(A) to the commentary of § 1B1.10 is

ambiguous. Because the definition provided by the

Sentencing Commission does not by itself resolve the issue,

we will examine other provisions of the Sentencing

Guidelines to determine whether they give us any insight into

the Commission’s definition.

A. 2011 Historical Notes for § 1B1.10

The Historical Notes for § 1B1.10 state that the

Commission revised Application Note 1 and defined

―applicable guideline range‖ ―to address an application issue‖

regarding ―when, if at all, the [sentencing] court applies a

departure provision.‖ U.S.S.G. § 1B1.10 Historical Notes

(Reason for Amendment). This need for clarification arose

because of a circuit split. Id. Several Courts of Appeals had

held that sentencing courts might consider some departures

before calculating a defendant’s applicable guideline range;

others had held that the applicable guideline range must be

determined prior to the court’s consideration of any

departures. Id. The Commission resolved this dispute by

amending the commentary and clarifying that the latter

approach was the proper one. Id. This explanation does not,

however, offer any insight into whether the Commission

intended the amendment to refer solely to the intersection

17

between the offense level and criminal history category, as

determined by the culmination of steps § 1B1.1(a)(1)-(a)(7),

or to the guideline sentence of a mandatory minimum

determined at step § 1B1.1(a)(8), the final step before

applying § 1B1.1(b) & (c).

Another concern with the Commission’s explanation

for the revision is the fact that at the time the Commission

defined ―applicable guideline range,‖ it was likely aware that

at least eleven Courts of Appeals had concluded that a

defendant was ineligible for a sentencing reduction in

circumstances in which the statutory mandatory minimum

exceeded the guideline range and the defendant received a

substantial assistance departure below the mandatory

minimum sentence. See, e.g., United States v. Roa-Medina,

607 F.3d 255, 260 (1st Cir. 2010); United States v. Williams,

551 F.3d 182, 186-87 (2d Cir. 2009); Doe, 564 F.3d at 311-

12; United States v. Hood, 556 F.3d 226, 234-35 (4th Cir.

2009); United States v. Carter, 595 F.3d 575, 580-81 (5th Cir.

2010); United States v. Johnson, 564 F.3d 419, 422-23 (6th

Cir. 2009); United States v. Poole, 550 F.3d 676, 679-80 (7th

Cir. 2008); United States v. Baylor, 556 F.3d 672, 673 (8th

Cir. 2009); United States v. Jackson, 577 F.3d 1032, 1034-36

(9th Cir. 2009); United States v. Williams, 549 F.3d 1337,

1339-42 (11th Cir. 2008); United States v. Cook, 594 F.3d

883, 886-89 (D.C. Cir. 2010). If the Commission intended to

overrule these Courts of Appeals, why did it not explicitly say

that it was doing so?

B. Application Note 3 for § 1B1.10

In addition to defining ―applicable guideline range,‖

the Commission also revised § 1B1.10 ―to change the

18

limitations that apply in cases in which the term of

imprisonment was less than the minimum of the applicable

guideline range at the time of sentencing.‖ U.S.S.G. §

1B1.10 Historical Notes (Reason for Amendment). After the

amendment, a defendant, whose original sentence had been

reduced below the applicable guideline range, could seek §

3582(c)(2) relief only if he had originally been granted the

reduced term as a result of substantial assistance to the

government. See § 1B1.10(b)(2)(B).

In addition, Application Note 3 provides examples of

how to calculate the reduced sentence under § 3582(c)(2). It

then discusses § 3582(c)(2) sentence reduction when the

defendant’s original sentence was reduced following a

government motion for substantial assistance, and states:

The provisions authorizing such a government

motion are 5K1.1 (Substantial Assistance to

Authorities) (authorizing, upon government

motion, a downward departure based on the

defendant’s substantial assistance); 18 U.S.C.

3553(e) (authorizing the court, upon

government motion, to impose a sentence below

a statutory minimum to reflect the defendant’s

substantial assistance); and Fed. R. Crim. P.

35(b) (authorizing the court, upon government

motion, to reduce a sentence to reflect the

defendant's substantial assistance).

U.S.S.G. § 1B1.10 Application Note 3 (2011) (emphasis

added).

Appearing as it does in a Commentary Section directed

at clarifying the reduction of sentences under § 3582(c)(2),

19

this last paragraph appears to contemplate that a defendant

who was sentenced below his applicable mandatory minimum

because he received a § 3553(e) reduction for substantial

assistance, might be eligible for a sentencing reduction. If we

were to hold that the ―applicable guideline range‖ language of

§ 1B1.10(a)(2)(B) rendered such a defendant ineligible for a §

3582(c)(2) reduction, what is the point of the above quoted

language in Application Note 3?

Another interpretation of this provision, however,

supports the government’s argument. In circumstances in

which the initial guideline range, as determined pursuant to §

1B1.1(a)(7), exceeds the mandatory minimum sentence, and

the government files a motion under § 5K1.1 and § 3553(e),

courts often depart below both the guideline range and the

mandatory minimum when imposing the final sentence.

Accordingly, the Application Note might simply clarify that,

in that scenario, a court may grant a comparable reduction

below the original guideline range but not below the

mandatory minimum.

C. U.S.S.G. § 5G1.1(b)

Section 5G1.1 supports Appellants’ reading of

―applicable guideline range‖ as the intersection between the

offense level and criminal history category, as calculated

under § 1B1.1(a)(7). In the sentencing process, after the court

completes its calculation under step § 1B1.1(a)(7), step §

1B1.1(a)(8) directs it to apply, among other provisions,

§ 5G1.1. Section 5G1.1, in turn, refers to the sentence that

has already been calculated under § 1B1.1(a)(7) as ―the

applicable guideline range.‖ U.S.S.G. § 5G1.1(b) (―Where a

statutorily required minimum sentence is greater than the

20

maximum of the applicable guideline range, the statutorily

required minimum sentence shall be the guideline sentence.‖

(emphasis added)). Thus, before the sentencing court

proceeds to complete the step at § 1B1.1(a)(8), the language

of § 5G1.1 provides that the ―applicable guideline range‖ has

already been determined.

D. Application Note 1(A) to U.S.S.G. § 1B1.10

The Commentary to § 1B1.10 supports the

government’s argument and adds further ambiguity to the

meaning of ―applicable guideline range.‖ Immediately

preceding the description of ―applicable guideline range,‖ the

commentary states that a sentencing reduction is not

authorized when ―the amendment does not have the effect of

lowering the defendant’s applicable guideline range because

of the operation of another guideline or statutory provision

(e.g., a statutory mandatory minimum term of

imprisonment).‖ § 1B1.10 cmt. n.1(A) (2011). Although

appellants assert that this provision addresses only those

situations in which the imposition of a sentence below the

mandatory minimum range was not due to a substantial

assistance departure, no such distinction is drawn in the

language of the Commentary. In regard to the above, the

District Court observed that it is difficult to imagine what

purpose the statement would serve if a mandatory minimum

sentence was irrelevant to the determination of the applicable

guideline range.

In sum, we conclude that our review of these

provisions has not helped us ascertain the meaning of the

Commission’s definition of ―applicable guideline range.‖

21

E. Rule of Lenity

In circumstances in which an ambiguous criminal

statute cannot be clarified by its ―text, structure, history, []

purpose,‖ Barber v. Thomas, ___ U.S. ___, 130 S. Ct. 2499,

2508 (2010), or reasonable inferences drawn from the overall

statutory scheme, the rule of lenity provides that we must

resolve that ambiguity in favor of the defendant. Flemming,

617 F.3d at 269 (quoting United States v Pollen, 978 F.2d 78,

85 (3d Cir. 1992)); see Reno v. Koray, 515 U.S. 50, 65 (1995)

(―The rule of lenity applies only if, after seizing everything

from which aid can be derived, we can make no more than a

guess as to what Congress intended.‖) (citations and internal

quotation marks omitted). Courts should not, however, apply

this rule whenever confronted with a difficult interpretative

question. Instead, its application is limited to instances in

which there is a ―grievous ambiguity or uncertainty in the

statute, such that the Court must simply guess as to what

Congress intended.‖ Barber, 130 S. Ct. at 2508-09 (citations

and internal quotation marks omitted). We have previously

held that the rule of lenity applies to the Sentencing

Guidelines. Flemming, 617 F.3d at 271-72.

As discussed above, we believe that the guidelines are

―grievous[ly] ambiguous‖ and hopelessly imprecise regarding

the Commission’s description of ―applicable guideline range‖

contained within the revised Application Note 1(A) to the

commentary of § 1B1.10. Without ―guess[ing]‖ what the

definition means, we cannot definitively resolve whether it

defines the phrase as the initial sentencing range calculated

under § 1B1.1(a)(7), or if it includes the statutory mandatory

minimum sentence determined at step § 1B1.1(a)(8). As both

interpretations are entirely plausible and nothing in the

22

guidelines provides definitive insight into the accuracy of

either reading, we conclude that we must apply the rule of

lenity and resolve the ambiguity in appellants’ favor. See

e.g., id. at 270-72; United States v. Bustillos-Penna, 612 F.3d

863, 868-69 (5th Cir. 2010) (applying rule of lenity to

conclude that a provision of the Sentencing Guidelines was

ambiguous).6

6

We are aware that our decision today conflicts with the

Eleventh Circuit’s decision in United States v. Glover, 686

F.3d 1203 (11th Cir. 2012). There, the defendant was

convicted of a crack-related offense and had an initial

guidelines range—188-235 months’ imprisonment—that was

below his mandatory minimum of life in prison. Id. at 1204.

The defendant received a downward departure for substantial

assistance and a sentence of 204 months’ imprisonment. Id.

at 1205. The defendant sought a sentence reduction pursuant

to 18 U.S.C. § 3582(c)(2) based on Amendments 750 and

759, but the Eleventh Circuit held that he was ineligible

because ―[the defendant]’s guidelines range was—and still

is—life in prison.‖ Id. at 1208.

We believe the Eleventh Circuit’s decision was based on an

incorrect interpretation of the phrase ―applicable guidelines

range.‖ The Glover court began, as we did, by highlighting

the importance of the phrase ―applicable guideline range‖ to

the ultimate determination of whether a defendant ―has been

sentenced to a term of imprisonment based on a sentencing

range that has subsequently been lowered,‖ 18 U.S.C. §

3582(c)(2). See Glover, 686 F.3d at 1206. However, the

Eleventh Circuit only analyzed the phrase as it appears in

U.S.S.G. § 1B1.10(a)(2)(B) and Application Note 1(A) before

23

In reaching this result we note that we cannot view the

guidelines and the definition of ―applicable guideline range‖

in a vacuum. First, we must keep in mind that the Sentencing

Commission recognizes that defendants who provide

substantial assistance deserve special consideration. See 76

Fed. Reg. 41332-01, 41334 (July 7, 2011) (noting that ―[t]he

guidelines . . . have long recognized that defendants who

provide substantial assistance are differently situated than

other defendants,‖ and stating that the revisions

―appropriately maintain[] this distinction and further[] the

deciding that § 3582(c), § 1B1.10(a)(2)(B), and Application

Note l(A) ―all make it clear that . . . an amendment that alters

the initial calculation of a guidelines range is not to be applied

in a case where the difference in the initial calculation would

have made no difference because a mandatory minimum

would have trumped the initial calculation and dictated the

final guidelines range anyway.‖ See Glover, 686 F.3d at

1206. If the provisions the Eleventh Circuit analyzed were

the full extent of the relevant statutory language, we would

agree that ―applicable guidelines range‖ refers to the

mandatory minimum and not to the initial guidelines range.

But the Eleventh Circuit did not address the use of

―applicable guidelines range‖ as it appears in U.S.S.G. §

5G1.1(b). As we have explained, we cannot reconcile the

Sentencing Commission’s use of the phrase in § 5G1.1(b)—

which unquestionably refers to the initial guidelines range

and not to the mandatory minimum—with the Eleventh

Circuit’s reading of the phrase in U.S.S.G. § 1B1.10(a)(2)(B)

and Application Note 1(A). For that reason, we reach a

different conclusion than Glover.

24

purposes of sentencing‖). Also, we must be cognizant of the

general policies underlying the FSA and Amendment 750.

As discussed above, after Congress adopted the FSA to

remedy the disparity between crack and powder cocaine

penalties, it directed the Sentencing Commission to

promulgate emergency amendments to conform the

guidelines to the statutory changes. One of these

amendments, Amendment 750, retroactively lowered the

crack cocaine base offense levels in § 2D1.1 to reflect the

reduced 18:1 ratio between powder and crack cocaine

adopted by the FSA.

If Appellants had been sentenced after Amendment

750 took effect, their initial guideline ranges, which served as

the basis for their sentences, would have been lower. If we

had interpreted ―applicable guidelines range‖ in the manner

that the government suggests, it would render appellants

ineligible for sentencing reductions merely because they were

sentenced prior to the adoption of retroactive Amendment

750. Such a result is antithetical to the Fair Sentencing policy

concerns that motivated Congress in passing the FSA. See

Flemming, 617 F.3d at 271-72.7

IV. Conclusion

For the above reasons, we hold that, when a defendant

was subject to a mandatory minimum term and was sentenced

7

For the reasons stated above, insofar as United States v.

Hippolyte, --- F.3d ----, No. 11-15933, 2013 WL 978695

(11th Cir. Mar. 14, 2013), differs in the definition of

―applicable guideline range,‖ we find it unpersuasive.

25

to a term pursuant to the guidelines but below the mandatory

minimum as a result of a § 3553 motion by the government,

and when the sentencing range is later lowered by the

Sentencing Commission pursuant to 28 U.S.C. § 994(o), that

defendant is eligible to move for reduction of sentence

pursuant to § 3582(c)(2). Because the district courts that

sentenced these defendants either held that the defendant was

not eligible for a reduction because of the mandatory

minimum or did not state whether the § 3553 motion was

being denied as a matter of law because of the mandatory

minimum or a matter of discretion, we will vacate the orders

and remand the Herbert and Roe cases to their respective

courts for further proceedings in accord with Freeman v.

United States, --- U.S. ----, 131 S. Ct. 2685, 2695 (2011)

(Sotomayor, J., concurring) and with the discretion of the

district courts. Because Savani died while his appeal was

pending, we will dismiss the appeal as moot and remand this

case to the district court to abate the judgment of sentence.

United States v. DeMichael, 461 F.3d 414, 417 (3d Cir.

2006).

26

FUENTES, Circuit Judge, concurring in part and concurring

in the judgment:

I join the judgment vacating Herbert‟s and Roe‟s

sentences. I concur with the majority that the new definition

of “applicable guideline range” provided by Amendment 759

to the Sentencing Guidelines, which clarifies when a

defendant is eligible for resentencing based on certain

substantive amendments to the Guidelines, supersedes our

holding in United States v. Doe, 564 F.3d 305 (3d Cir. 2009).

Ante at 13-14. I write separately because, unlike the majority,

I do not find any ambiguity in the new definition of

“applicable guideline range.” In my view, the Federal

Sentencing Act of 2010 (“FSA”), made applicable to Herbert

and Roe (“Petitioners”) through Amendment 750 to the

Guidelines, lowered their “guideline range that corresponds to

the offense level and criminal history category determined

pursuant to § 1B1.1(a).” U.S.S.G. § 1B1.10 app. n.1(A)

(2011); see also U.S.S.G. app. C., amend. 750 (Nov. 1, 2011).

Accordingly, I would hold that Petitioners are eligible for

resentencing under 18 U.S.C. § 3582(c)(2) based on the plain

text of Amendment 759. I would not resort to the rule of

lenity when a clear answer is provided by the language of the

Guidelines.

A. The Text of the Application Notes to Section 1B1.10

To be eligible for resentencing consistent with 18

U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, Petitioners must

meet two requirements: (1) their sentences must be “based

on” a Guidelines range, and (2) an applicable Guidelines

amendment must have “the effect of lowering” that range.

United States v. Thompson, 682 F.3d 285, 290 (3d Cir. 2012).

1

The relevant issue here is whether Petitioners meet the second

part of this test based on the Fair Sentencing Act amendments

to the crack-cocaine Guidelines, which ultimately turns on

whether the amendments lowered Petitioners‟ “applicable

guideline range.”

In Doe we held that defendants such as Petitioners who

were convicted of crack-cocaine related offenses and exposed

to a statutory mandatory minimum sentence that exceeded

their guideline range, calculated under U.S.S.G.

§ 1B1.1(a)(7), but were sentenced below that minimum

pursuant to a substantial assistance motion based on U.S.S.G.

§ 5K1.1, were ineligible for resentencing. See Doe, 546 F.3d

at 309. We reasoned that “applicable guideline range,” a term

then not defined by the Guidelines, referred to the statutory

minimum sentence calculated at step 8 of the sentencing

process, which was not affected by the crack-cocaine

amendments. Id. at 312. We rejected the contention that

“applicable guideline range” referred to the range calculated

based on the defendant‟s offense level and criminal history

category, under step 7 of the initial sentencing calculation,

U.S.S.G. § 1B1.1(a)(7). Id. at 311.1

Amendment 759, however, for the first time defined

“applicable guideline range” by amending Application Note

1(A) of § 1B1.10. The effect of this amendment is that the

Guidelines now explain that “[e]ligibility for [resentencing]

1

These steps were designated as (a) through (h) before

November 1, 2010 but on that date were re-designated as (1)

through (8) in order to “adopt[] the three-step approach

followed by a majority of circuits in determining the sentence

to be imposed.” U.S.S.G. app. C, amend. 741 (effective Nov.

1, 2010).

2

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

amendment . . . that lowers . . . 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.” U.S.S.G. § 1B1.10 app.

n.1(A) (2011) (emphasis added); see also U.S.S.G. app. C.,

amend. 759 (Nov. 1, 2011).

This language could not be clearer in demonstrating

that our conclusion in Doe was incorrect. Following the

Application Note‟s reference to § 1B1.1(a), it is immediately

obvious that only under one of the steps listed in that section

does the court “[d]etermine[s] the guideline range . . . that

corresponds to the offense level and criminal history category

determined”—step 7, which is set forth in § 1B1.1(a)(7). In

other words, as the majority agrees, the language of the

calculation mandated by § 1B1.1(a)(7) is the exact language

that appears in the provision governing eligibility for

resentencing, § 1B1.10, Application Note 1(A). See ante at

15-16. Indeed, one of the provisions explicitly cross-

references the first. Accordingly, the natural reading is that

Application Note 1(A)‟s reference to the range calculated

“pursuant to § 1B1.1(a)” means the guideline range calculated

in step 7 of § 1B1.1(a).

The Government‟s contention that the definition of

“applicable guideline range” may continue to refer to the

mandatory minimum sentences of step 8, § 1B1.1(a)(8), falls

flat for that reason—under no other step of § 1B1.1(a) is a

range determined based on a previously calculated offense

level and a criminal history. As the majority recognizes, the

computation of mandatory minimums at step 8 does not

3

involve sentence “ranges” or the recalculation of offense

levels or criminal history categories. See id. at 16 n.5.

Nevertheless, the Government insists that the reference

to § 1B1.1(a) in the amended Note 1(A) is ambiguous

because “[i]t is not expressly stated that the Commission

intended the term „applicable guideline range‟ as calculated

under § 1B1.1(a) to refer only to the steps of § 1B1.1(a)(1)-

(a)(7) and not to include § 1B1.1(a)(8).” The majority

appears to credit that argument. Id. at 16.

But, in this context, we ought to reject reading

ambiguity into the statute based on what it did not but could

have said. It is true that the cross-reference in Application

Note 1(A) is to § 1B1.1(a) generally and not specifically to

§ 1B1.1(a)(7). However, an explicit reference to clause (7) is

not needed, given that the language of Note 1(A) already

exactly tracks the language of clause (7). Requiring any

further granularity from each cross-reference that may appear

in the Guidelines is overkill. After all, the definition of

“applicable guideline range” in Note 1(A) also mentions the

“offense level and criminal history category determined

pursuant to § 1B1.1(a)” without specifically noting that the

referenced “offense level” is determined under clauses (1)-(5)

of § 1B1.1(a), or that the noted “criminal history category” is

determined under clause (6) of § 1B1.1(a). No one would

argue that such references are ambiguous because they do not

particularly list the relevant subsection of § 1B1.1(a).

Accepting the Government‟s argument would inject

ambiguity into an otherwise “logical” reading of a statute,

4

ante at 16, based on what the statute does not say. In my

view, this violates basic tenets of statutory construction.2

The Government also seizes on the second clause in

the new definition of “applicable guideline range,” which

specifies that such range is “determined before consideration

of any departure provision in the Guidelines Manual or any

variance.” According to the Government, because all eight

steps in § 1B1.1(a), including the mandatory minimum, are

calculated before the consideration of departures or variances,

“applicable guideline range” could also refer to the

mandatory minimum.

But the reference to when the “applicable guideline

range” is determined does not matter for purposes of this

2

To be fair, the Government‟s argument was recently

accepted by the Eleventh Circuit in a case where the

defendant, unlike the Petitioners, was sentenced to the

mandatory minimum. United States v. Hippolyte, __ F.3d __,

No. 11-15933, 2013 WL 978695 (11th Cir. Mar. 14, 2013).

The Court reasoned that the reference to § 1B1.1(a) must be a

reference to step 8 because under § 1B1.1(a) “one necessarily

is required to take into account the mandatory minimum

sentences that may be statutorily required,” id., at *4, but

despite this held that Hippolyte was ineligible for

resentencing because “the new definition of applicable

guideline range . . . nowhere mentions statutorily required

mandatory minimum sentences” and “has nothing to do with

mandatory minimums.” Id. Because it is inconsistent to

conclude that the new resentencing eligibility criteria both has

“nothing to do” with mandatory minimums but also refers to

the mandatory minimums calculated at step 8 of § 1B1.1(a), I

find unpersuasive the reasoning of Hippolyte.

5

analysis. The guideline range calculated at step 7 of

§ 1B1.1(a) is “determined before consideration of any

departure provision in the Guidelines Manual or any

variance.” While it is true that the mandatory minimum of

step 8 is also determined “before consideration” of departures

or variances, so too are all the other calculations mandated by

§ 1B1.1(a). The argument could only work by inserting the

word “immediately” so that the definition of “applicable

guideline range” would be that which is “determined

immediately before consideration” of any departure or

variance. But that is not what Application Note 1(A) says.

The Government‟s remaining arguments based on the

Application Notes to § 1B1.10 are not persuasive. The

additional language in Application Note 1(A) merely clarifies

that regardless of the effect of a substantive amendment on

the range calculated at step 7, a defendant is not eligible for

resentencing if he was instead sentenced to a statutory

minimum and not to a sentence based on the guideline range.

But this is irrelevant in the cases before us as Petitioners were

not sentenced to a statutory mandatory minimum. But see

United States v. Glover, 686 F.3d 1203 (11th Cir. 2012)

(refusing to grant relief under Amendment 759 to defendant

not sentenced to statutory minimum); United States v.

McClain, 691 F.3d 774 (6th Cir. 2012) (same). And there is

no basis in the language of Application Note 3 to draw a

distinction between defendants whose guidelines range was

higher than their mandatory minimums and those whose

range was below it, and a reading supporting such result is

contrary to the clear statutory purpose of the FSA—to lower

the sentences of all crack-cocaine offenders. See also Doe,

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

6

In sum, because I believe that the language of the

statute at issue here makes clear that the FSA and its

amendments had the effect of lowering Petitioners‟

“applicable guideline range,” no foray into other provisions of

the Guidelines is necessary, nor do we need to invoke the rule

of lenity. Our role is to give meaning to these plain words in

light of the overall purpose of the statute, and in particular the

amendments to the crack-cocaine guidelines mandated by the

FSA. Our statutory inquiry should be at an end. See Conn.

Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“[I]n

interpreting a statute, a court should always turn first to [this]

one, cardinal canon before all others. . . . When the words of a

statute are unambiguous, then, this first canon is also the last:

judicial inquiry is complete.”) (internal quotation marks

omitted).3

B. Third Circuit Cases Decided Since The Enactment

of Amendment 759

3

The other provisions the majority cites do not change this

analysis. The failure of the Historical Notes to § 1B1.10 to

explicitly endorse my reading of “applicable guidelines

range” does not inject ambiguity into the clear language of

the statute. Were a statute‟s legislative history‟s failure to

endorse a proposed reading of a statute a sufficient reason to

reject such reading, few statutory interpretation cases would

be resolved by the courts.

7

The Government also contends that cases decided

since the enactment of Amendment 759 support its view that

the approach in Doe remains good law. I disagree.

The most relevant cases are those involving career

offenders, where we have held that defendants exposed to

career offender guidelines but granted departures from those

guidelines are not eligible for resentencing under crack-

cocaine amendments. See, e.g., United States v. Ware, 694

F.3d 527, 529, 530 (3d Cir. 2012); United States v. Barney,

672 F.3d 228, 231-32 (3d Cir. 2012). But Ware and Barney

are consistent with my reading of “applicable guideline

range” because in career offender cases the applicable

guideline range is still calculated at step 7. That range is

based on an applicable offense level and criminal history

category that the career offender guidelines may have altered

at step 6 of the calculation. In such context, it makes perfect

sense to say that the “applicable guideline range . . . is „the

range dictated by the Career Offender Guidelines.‟” Ware,

694 F.3d at 535 (quoting Barney, 672 F.3d at 232). Although

a court may then calculate an alternative guideline range after

granting a departure, it remains the case that the career

offender guidelines range is calculated at step 7, and that such

range is not affected by the FSA. By contrast, when a

defendant is exposed to a statutory minimum, neither the

offense level nor criminal history category change—the range

corresponding to those levels has already been calculated at

step 7.

C. Whether Petitioners’ Sentences Were “Based On” a

Guidelines Range

8

Petitioners must also demonstrate that their sentence

was “based on” a Guidelines range. See Thompson, 682 F.3d

at 290. Herbert‟s substantial cooperation agreement stated

the parties‟ view that the crack-cocaine range was reasonable.

When the District Court granted the Government‟s motion for

a sentence below the mandatory minimum, it also adopted the

crack-cocaine guideline range and sentenced defendant within

that range. Thus, Herbert‟s sentence was factually “based on”

a guidelines range.

The Government nevertheless has suggested that our

decision in United States v. Winebarger, 664 F.3d 388, 396

(3d Cir. 2011), means that Herbert‟s sentence could not

legally be “based on” a guidelines range. In Winebarger,

which was decided after Herbert was sentenced, we held that

it was improper for a sentencing court to consider factors

other than those relating to the defendant‟s assistance in

deciding how far below the statutory minimum to depart, but

did not preclude consideration of the seriousness of the

offense in deciding to limit the scope of a departure.

Winebarger, 664 F.3d at 396 (citing United States v. Casiano,

113 F.3d 420, 430 (3d Cir. 1997)). Thus, Winebarger does

not categorically preclude defendants like Herbert from

meeting the first part of the test required for resentencing.4

D. Conclusion

4

In a subsequent submission the Government conceded that

Winebarger does “not play a role in the government‟s

primary argument.” Govt. 28(j) Letter of June 25, 2012 at 4-

5. Nevertheless, the Government still contends that “a below-

mandatory sentence resting on a cooperation motion is never

„based on‟ an alternative guideline range.” Id. at 5.

9

I do not disagree with the majority‟s analysis of why

application of the rule of lenity would also require us to

vacate Petitioners‟ sentences. See ante at 22-26. But to

justify application of the rule in the first place, we must face

more than “a difficult interpretative question.” Id. at 22. I do

not find such grievous ambiguity.

Although these cases appear to be frustratingly

complex, they are not. While the parties foray into other

cases and other provisions of the Guidelines, this is

unnecessary because our post-Doe jurisprudence has not

addressed squarely the issue presented here; only Amendment

759 speaks directly to that question and does so in a clear

manner. That amendment, in my view, clearly states that the

“applicable guideline range” of a defendant is calculated at

§ 1B1.1(a)(7), even if he is exposed to a statutory mandatory

minimum. I would give effect to this language by deciding

this case as a matter of statutory construction. Nothing in the

remainder of the application notes to § 1B1.10 or other

provisions of the Guidelines changes this result. So long as

the defendant was not sentenced to the statutory minimum, he

is eligible for resentencing based on the FSA.

Accordingly, I concur in the judgment vacating

Petitioners‟ sentences but cannot join the reasoning used to

reach that result.

10