United States v. Monica Poole ( 2008 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 08-2328
    U NITED S TATES OF A MERICA,
    Plaintiff-Appellee,
    v.
    M ONICA L. P OOLE,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Central District of Illinois.
    No. 05-CR-10066—Michael M. Mihm, Judge.
    A RGUED S EPTEMBER 9, 2008—D ECIDED D ECEMBER 19, 2008
    Before F LAUM, W ILLIAMS, and SYKES, Circuit Judges.
    S YKES, Circuit Judge. The district court denied Monica
    Poole’s motion to modify her sentence pursuant to 
    18 U.S.C. § 3582
    (c)(2) on the ground that she was ineligible for
    a reduction. Poole appeals, arguing that she is eligible for
    a sentence reduction under § 3582(c)(2) because her
    original sentence, subsequently reduced under Rule 35(b)
    of the Federal Rules of Criminal Procedure, was based on a
    2                                                  No. 08-2328
    sentencing range the Sentencing Commission has since
    lowered—specifically, Guidelines Amendment 706 pertain-
    ing to crack cocaine sentences. We affirm. The district court
    lacked subject-matter jurisdiction to revisit Poole’s sen-
    tence because it was based on a statutory minimum
    sentence, not a range the Commission has subsequently
    lowered.
    I. Background
    Monica Poole pleaded guilty to one count of distributing
    five or more grams of cocaine base in violation of 
    21 U.S.C. § 841
    (a)(1) and (b)(1)(B)(iii). At sentencing the district court
    first calculated Poole’s base offense level for crack cocaine
    pursuant to U.S.S.G. § 2D1.1. This calculation resulted in a
    guidelines range of 87-108 months. However, a prior felony
    drug conviction subjected her to a statutory minimum
    sentence of 120 months. 
    21 U.S.C. § 841
    (b)(1)(B). Because
    the district court’s initial calculation of Poole’s guidelines
    range was lower than the statutory minimum sentence, the
    district court sentenced her pursuant to the statutorily
    required minimum. See U.S.S.G. § 5G1.1(b).
    Nearly one year later, the government moved under Rule
    35(b) to have Poole’s original sentence reduced for substan-
    tial assistance to the government. The district court granted
    the government’s motion and, using Poole’s statutory
    minimum sentence as its starting point, reduced her
    sentence 25 percent to 90 months. Poole later moved for a
    further sentencing reduction pursuant to 
    18 U.S.C. § 3582
    (c)(2) on the basis of Guidelines Amendment 706,
    which lowered the base offense level for crack cocaine
    No. 08-2328                                                      3
    offenses under U.S.S.G. § 2D1.1 by two levels to ameliorate
    the 100:1 drug-quantity ratio between powder cocaine and
    crack. See U.S.S.G. app. C, amend. 706 (2007). She requested
    a sentence of 65 months based on a guidelines range that
    took Amendment 706 and her substantial-assistance
    reduction into account but that did not apply the statutory
    minimum.
    The district court held that Poole was ineligible for
    resentencing under § 3582(c)(2) because her sentence was
    not based on a sentencing range that Amendment 706 had
    subsequently lowered, but instead was based on the
    statutory minimum.
    II. Discussion
    The sole issue on appeal is whether the district court had
    jurisdiction to revisit Poole’s sentence under 
    18 U.S.C. § 3582
    (c)(2) based on Sentencing Guidelines Amendment
    706. Congress has authorized district courts to modify
    sentences in very limited circumstances. Section 3582(c)(2)
    permits a district court to revisit a sentence “in the case
    of a defendant who has been sentenced to a term of im-
    prisonment based on a sentencing range that has subse-
    quently been lowered by the Sentencing Commission.”1 We
    1
    A second clause in § 3582(c)(2) states that a district court may
    reduce a sentence “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
    (continued...)
    4                                                   No. 08-2328
    recently concluded that this language limits a district
    court’s subject-matter jurisdiction. United States v. Lawrence,
    
    535 F.3d 631
    , 637-38 (7th Cir. 2008). Accordingly, our
    analysis begins by asking whether Poole’s sentence was
    “based on” a sentencing range that Amendment 706 has
    subsequently lowered.
    The district court held, and we agree, that Poole’s
    sentence was “based on” a statutory minimum, not a
    sentencing range that Amendment 706 lowered. The
    district court initially calculated Poole’s base offense level
    pursuant to U.S.S.G. § 2D1.1, which Amendment 706 has
    subsequently lowered. This calculation resulted in a
    guidelines range of 87-108 months. However, a prior felony
    drug conviction subjected her to a statutory minimum
    sentence of 120 months. Because the statutory minimum
    exceeded the otherwise applicable guidelines range, the
    statutory minimum became Poole’s guidelines sentence.
    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 mini-
    mum sentence shall be the guideline sentence.”); United
    States v. Cordero, 
    313 F.3d 161
    , 166 (3d Cir. 2002) (under
    § 5G1.1(b) the statutory minimum “subsumes and dis-
    places the otherwise applicable guideline range”). Thus,
    1
    (...continued)
    by the Sentencing Commission.” United States v. Lawrence
    explains that this clause limits a court’s authority to reduce
    sentences once it has jurisdiction. 
    535 F.3d 631
    , 637-38 (7th Cir.
    2008).
    No. 08-2328                                                   5
    while Amendment 706 lowered Poole’s base offense level,
    it has not lowered the sentencing range on which her
    sentence was actually based—a statutory minimum
    sentence of 120 months’ imprisonment.
    Poole nevertheless argues that her sentence was “based
    on” a range that Amendment 706 has subsequently low-
    ered because the district court initially calculated a guide-
    lines range for her that the amendment has now altered.
    But this view ignores the fact that the district court’s initial
    guidelines calculation became academic once her prior
    drug felony was factored in, triggering the statutory
    minimum sentence. A sentence is not “based on” a range
    that Amendment 706 subsequently lowered for purposes
    of a § 3582(c)(2) motion if the defendant was ultimately
    sentenced pursuant to a statutory minimum, even if the
    district court initially calculated an otherwise applicable
    range that the amendment lowered.
    This conclusion is consistent with the position taken by
    other federal appellate courts that have considered the
    relationship between guidelines amendments and the plain
    language of § 3582(c)(2). See United States v. Johnson, 
    517 F.3d 1020
    , 1024 (8th Cir. 2008) (Amendment 706 had no
    effect on eligibility for resentencing where statutory
    minimum became the guidelines sentence under
    § 5G1.1(b)); United States v. Mullanix, 
    99 F.3d 323
    , 324 (9th
    Cir. 1996) (district court lacked authority to reduce sen-
    tence because it was based on statutory minimum, not an
    otherwise applicable range lowered by a separate amend-
    ment).
    6                                                  No. 08-2328
    The Sentencing Commission’s recently amended policy
    statement also supports our reading of § 3582(c)(2)’s
    jurisdictional language. In discussing a defendant’s
    eligibility for a sentence reduction under § 3582(c)(2),
    Application Note 1(A) states:
    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. Accord-
    ingly, a reduction in the defendant’s term of imprison-
    ment is not authorized under 18 U.S.C. 3582(c)(2) and
    is not consistent with this policy statement if . . . 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
    (e.g., a statutory mandatory minimum term of imprison-
    ment).
    U.S.S.G. § 1B1.10 cmt. n.1(A) (emphasis added).
    The Commission thus has indicated that defendants in
    precisely the same situation as Poole are not eligible for
    sentencing reconsideration under § 3582(c)(2). The Appli-
    cation Note confirms that Amendment 706 does not have
    the effect of lowering Poole’s guidelines range because the
    range applicable to her by operation of law was the
    statutory minimum term. See U.S.S.G. § 1B1.10 cmt. n.1(A);
    see also United States v. Moore, 
    541 F.3d 1323
    , 1328 (11th Cir.
    2008) (citing Note 1(A) to support holding that defendants’
    sentences were not based on initial base-offense-level
    calculations for crack cocaine where the district court
    ultimately applied separate guidelines for career offend-
    No. 08-2328                                                      7
    ers). Indeed, even if the district court had jurisdiction to
    revisit Poole’s sentence, Application Note 1(A) makes it
    clear that reducing her sentence would be inconsistent with
    the Sentencing Commission’s policy statement.2
    One twist in Poole’s case supplies an additional argu-
    ment, although one we ultimately find unpersuasive. Poole
    points to the fact that the district court subsequently
    reduced her sentence under Rule 35(b) of the Federal Rules
    of Criminal Procedure to a term of imprisonment below the
    statutory minimum and within her otherwise applicable
    guidelines range on the government’s “substantial assis-
    tance” motion. To the extent this is an argument that her
    reduced sentence was not also based on the statutory
    minimum sentence, Poole is incorrect.
    Rule 35(b) allows a district court to reduce a sentence for
    substantial assistance upon the government’s motion. It is
    one of few instances in which a court may disregard a
    statutory minimum sentence. See 
    18 U.S.C. § 3553
    (e).
    2
    We have concluded in two unpublished orders that Applica-
    tion Note 1(A) precludes a district court from reducing a
    sentence based on the statutory mandatory minimum for crack
    cocaine. United States v. Trapps, 289 F. App’x 953 (7th Cir. 2008);
    United States v. Luckey, 
    2008 WL 3929587
     (7th Cir. Aug. 25, 2008).
    In both cases we cited Application Note 1(A) for the proposition
    that any such reduction would violate the second clause of
    § 3582(c)(2), prohibiting reductions inconsistent with an ap-
    plicable policy statement. The Application Note speaks not
    only to the second clause of § 3582(c)(2) but also to the first
    requiring that a sentence be “based on” a subsequently lowered
    range in order to qualify for potential reduction.
    8                                                  No. 08-2328
    Although the district court granted Poole a statutorily
    authorized reduction under Rule 35(b), it used her original
    statutory minimum sentence as its starting point for
    issuing the reduction. Poole’s reduced sentence thus was
    in no way based on or affected by her otherwise applicable
    sentencing range, which Amendment 706 would have
    lowered. Accordingly, the sentence reduction under Rule
    35(b) did not vest the court with jurisdiction under
    § 3582(c)(2). See Johnson, 
    517 F.3d at 1024
     (“Since the district
    court used the 120 month mandatory minimum as its point
    of departure [for substantial assistance], resentencing is not
    warranted.”); Moore, 
    541 F.3d at 1330
     (holding that defen-
    dants were not eligible for § 3582(c)(2) consideration
    because even after applying a reduction for substantial
    assistance, the court still had not based their sentences on
    a range reduced by Amendment 706).
    Poole also suggests that our recent decision in United
    States v. Chapman, 
    532 F.3d 625
     (7th Cir. 2008), somehow
    affects her case. It is not entirely clear why she believes
    Chapman is relevant. Chapman affirmed a district court’s
    use of 
    18 U.S.C. § 3553
    (a) factors to grant a sentence
    reduction for substantial assistance under Rule 35(b) that
    was more modest than what the defendant’s substantial
    assistance may have warranted if considered alone. 
    532 F.3d at 628
    . Poole understands Chapman to stand for the
    proposition that a district court may rely on § 3553(a) in a
    Rule 35(b) proceeding to grant a sentence reduction beyond
    what a defendant’s substantial assistance is worth. Poole
    apparently questions the district court’s Rule 35(b) order in
    light of Chapman. However, because Poole did not appeal
    the district court’s Rule 35(b) order, and because we have
    No. 08-2328                                                  9
    already concluded that the district court lacks jurisdiction
    to consider a sentence reduction under § 3582(c)(2), we
    need not consider this argument.
    We note for completeness that Poole’s expansive reading
    of Chapman would allow a court to use the narrow
    resentencing authority granted under Rule 35(b) to engage
    in an entirely new sentencing inquiry in no way related to
    the question of a defendant’s substantial assistance. But
    Chapman stands only for the proposition that after calculat-
    ing the value of the defendant’s assistance to the govern-
    ment, a district court may ask whether § 3553(a) factors
    weigh in favor of or against granting a reduction equiva-
    lent to that level of assistance. See 
    532 F.3d at 628
    . The
    opinions of the Ninth and Eleventh Circuits that we cited
    in Chapman are also limited to that proposition. United
    States v. Manella, 
    86 F.3d 201
    , 204-05 (11th Cir. 1996) (“[T]he
    only factor that may militate in favor of a Rule 35(b) reduc-
    tion is the defendant’s substantial assistance. Nothing in
    the text of the rule purports to limit what factors may . . .
    militate in favor of granting a smaller reduction.”); see also
    United States v. Doe, 
    351 F.3d 929
    , 932 (9th Cir. 2003) (citing
    Manella for the same proposition). Indeed, these circuits
    have rejected the broader application of § 3553(a) that
    Poole now advocates for considering sentence reductions.
    See Doe, 
    351 F.3d at 933
    ; United States v. Chavarria-Herrara,
    
    15 F.3d 1033
    , 1037 (11th Cir. 1994). And contrary to Poole’s
    assertion, nothing in Chapman suggests that its holding
    10                                                   No. 08-2328
    applies to expand the district court’s jurisdiction to con-
    sider a § 3582(c)(2) sentence reduction.3
    For the foregoing reasons, the judgment of the district
    court is A FFIRMED.
    3
    As in United States v. Taylor, 
    520 F.3d 746
    , 748 (7th Cir. 2008),
    we decline to address whether application of the restrictions in
    U.S.S.G. § 1B1.10 is mandatory or advisory; the parties have not
    argued the matter.
    12-19-08