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United States v. Taylor

United States Court of Appeals, Sixth Circuit

April 18, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
BRYON TAYLOR, Defendant-Appellant

Argued June 11, 2013.

Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:03-cr-00422-1--Donald C. Nugent, District Judge.

ARGUED:

Jeffrey B Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant.

Ian D. Hoffman, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

ON BRIEF:

Jeffrey B Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant.

Ian D. Hoffman, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: BOGGS and DONALD, Circuit Judges; and STAMP, District Judge.[*] BOGGS, J., delivered the opinion of the court, in which STAMP, D.J., joined. DONALD, J., delivered a separate dissenting opinion.

OPINION

Page 542

BOGGS, Circuit Judge.

In 2004, defendant-appellant Bryon Taylor pled guilty to conspiracy to distribute and to possess, with intent to distribute, 392.2 grams of cocaine base (crack cocaine), in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(A), and 846. Although Taylor was subject to a 240-month statutory minimum penalty, the government moved for a downward departure based on substantial assistance, and Taylor was sentenced to 151 months of imprisonment and five years of supervised release. Following the Fair Sentencing Act of 2010 and the corresponding crack-cocaine-guideline amendments implemented by Amendment 750, Taylor moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court denied Taylor's motion, and Taylor now appeals. For the reasons that follow, we affirm the district court's order.

I

Taylor pled guilty to conspiracy to distribute and to possess, with intent to distribute, 392.2 grams of crack cocaine, in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(A), and 846. At the time of Taylor's sentencing in 2004, offenses involving more than 50 grams of crack cocaine carried a statutory minimum penalty of 10 years of imprisonment and, for a defendant who had " a prior conviction for a felony drug offense [that had] become final," the minimum penalty increased to 20 years' imprisonment. See 21 U.S.C. § 841(b)(1)(A) (2004). The government filed a sentencing enhancement, pursuant

Page 543

to 21 U.S.C. § 851, indicating that Taylor had a prior conviction for a felony drug offense and that he thus was subject to the statutory minimum penalty of 240 months' imprisonment.

In Taylor's plea agreement, the parties agreed that Taylor had a base offense level of 34 and a criminal-history category of VI and that the government would recommend a two-level reduction for acceptance of responsibility. Accordingly, Taylor had a final base offense level of 32 and a corresponding guideline range--as determined from the § 5A Sentencing Table--of 210-262 months.[1] See U.S.S.G. § 5A (2004). The lower limit of this range was increased to 240 months by virtue of the statutory minimum to which Taylor was subject. See U.S.S.G. § § 1B1.1(h) & 5G1.1(c) (2004). The government agreed to move for a downward departure based on Taylor's substantial assistance, allowing him to be sentenced below the statutory minimum. At Taylor's sentencing, the district judge granted the motion for a substantial-assistance departure, but rather than using Taylor's 240-month statutory minimum as the starting point for his downward departure, cf. United States v. Stewart, 306 F.3d 295, 332 (6th Cir. 2002) (holding that the statutory mandatory minimum is the appropriate starting point from which to calculate a downward departure for substantial assistance), the district judge simply subtracted an additional three levels from Taylor's base offense level[2]--resulting in a new base offense level of 29 and a guideline range of 151-188 months--and sentenced him to 151 months of imprisonment, the bottom of that range.

Years later, the Fair Sentencing Act of 2010 (FSA) increased the quantity of crack cocaine required to trigger the 20-year statutory minimum to which Taylor was subject from 50 grams to 280 grams. See 21 U.S.C. § 841(b)(1)(A) (2013). But Taylor's crime involved 392.2 grams of crack cocaine, and thus he would still have been subject to the same statutory minimum even if he had been sentenced after passage of the FSA. However, the 2011 crack-cocaine guideline amendments, also prompted by the FSA, did lower the § 2D1.1 base offense levels for crack-cocaine offenses and thus also lowered the § 5A guideline range to which Taylor would have been subject absent the existence of a statutory minimum. See U.S.S.G. Amend. 750. Taylor relied on this change in moving to modify his sentence pursuant to 18 U.S.C. § 3582(c).

The district court denied Taylor's request for a sentence reduction, holding that Amendment 750 did not have the effect of lowering Taylor's " applicable guideline range," and Taylor now appeals.

II

Normally, this court reviews a district court's denial of a motion to modify a sentence under 18 U.S.C. § 3582(c)(2) for abuse of discretion.

Page 544

See United States v. Moore, 582 F.3d 641, 644 (6th Cir. 2009). However, where a district court concludes, as it did here, that it lacks the authority under 18 U.S.C. § 3582(c)(2) to reduce a defendant's sentence, such a conclusion is a question of law that this court reviews de novo. See United States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010).

Under 18 U.S.C. § 3582(c)(2), a defendant is eligible for a sentence reduction if: (1) the defendant " has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission" ; and (2) such reduction is " consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c). We have clarified that to satisfy the second requirement, " a guidelines amendment must 'have the effect of lowering the defendant's applicable guideline range.'" United States v. Hameed, 614 F.3d 259, 269 (6th Cir. 2010) (Moore, J.) (quoting U.S.S.G. § 1B1.10(a)(2)(B)); see also United States v. Pembrook, 609 F.3d 381, 383 (6th Cir. 2010). Taylor claims that Amendment 750, which lowered the § 2D1.1 base offense levels for crack-cocaine offenses, entitles him to a sentence reduction under § 3582(c). Assuming without deciding that Taylor's sentence was based on § 2D1.1 and thus that he satisfies the first requirement for § 3852(c) sentence-reduction eligibility, Taylor's appeal fails, as Amendment 750 does not have the effect of lowering his " applicable guideline range."

Amendment 759 did, for the first time, provide an express definition for the term " applicable guideline range." It did so by amending Application Note 1(A) to U.S.S.G. § 1B1.10 to read: " 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)." U.S.S.G. § 1B1.10 cmt. n.1(A). In support of his sentence-reduction motion, Taylor argues that this new language indicates that all provisions of § 1B1.1(a) except § 1B1.1(a)(8)--the subsection that specifically incorporates any relevant statutory minimum--should be included in the definition of " applicable guideline range." As we recently held in United States v. Joiner, 727 F.3d 601, 606 (6th Cir. 2013), however, " the Application Note makes clear that the 'applicable guideline range' is the range that results from applying ยง 1B1.1(a) in its entirety, ...


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