                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0508n.06

                                           No. 09-5668                                  FILED
                                                                                    Aug 13, 2010
                             UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE EASTERN
v.                                                       )        DISTRICT OF TENNESSEE
                                                         )
CLIFTON MAXWELL,                                         )                 OPINION
                                                         )
       Defendant-Appellant.                              )



BEFORE: BATCHELDER, Chief Circuit Judge, and MOORE and COLE, Circuit Judges.

       COLE, Circuit Judge. Defendant-Appellant Clifton Maxwell challenges the district court’s

denial of his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Maxwell

originally received a sentence lower than the otherwise-applicable statutory minimum following the

Government’s motion for a downward departure for substantial assistance pursuant to 18 U.S.C.

§ 3553(e). The district court later determined that he was ineligible for a sentence reduction under

§ 3582(c)(2) because his sentence was not based on a range set out in the United States Sentencing

Guidelines Manual (“the Guidelines” or “U.S.S.G.”) that subsequently had been reduced by the

United States Sentencing Commission (“Sentencing Commission”). Because we find that no

subsequently reduced Guidelines range is applicable to Maxwell, we AFFIRM the district court’s

decision.
No. 09-5668
United States v. Maxwell

                                       I. BACKGROUND

       On February 8, 2002, a confidential informant purchased .8 grams of crack-cocaine from

Maxwell in a transaction that was recorded by law enforcement. During the subsequent police

investigation, cooperating co-conspirators admitted to obtaining large amounts of crack from

Maxwell for distribution in Tennessee. On September 4, 2003, Maxwell was arrested. A search of

his residence resulted in the seizure of seventy bags of heroin, a small quantity of marijuana, drug

paraphernalia, a bulletproof vest, a .380 caliber semi-automatic pistol, a .45 caliber pistol, and

ammunition for both weapons. On September 23, a grand jury returned a four-count indictment

against him, charging him with (1) conspiracy to distribute and possess with intent to distribute

cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A); (2) distribution of cocaine base,

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (3) distribution of heroin, in violation of

§§ 841(a)(1) and (b)(1)(c); and (4) possession of a firearm in furtherance of a drug-trafficking

offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). On January 7, 2004, the United States filed a

Notice of Enhanced Penalties pursuant to 21 U.S.C. § 851 based on his two prior convictions for

felony drug offenses.

       On April 27, 2004, Maxwell appeared before the district court and entered a plea of guilty,

pursuant to a written plea agreement, to Counts One and Four of the indictment. The agreement

stipulated that, from approximately September 2001 to September 2004, he knowingly and

intentionally conspired with at least one other person to distribute and possess with intent to

distribute 1.5 kilograms of cocaine base (crack-cocaine) and seventy bags of heroin, weighing

approximately 12 grams. The agreement provided that Maxwell would cooperate with the United

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United States v. Maxwell
States and that if, in the Government’s opinion, he provided substantial assistance, the Government

would file a motion for a downward departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).

(Id.) The agreement also provided that, if Maxwell complied with its terms, the Government would

not oppose a two-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a),

and would move for an additional level reduction, pursuant to U.S.S.G. § 3E1.1(b), if Maxwell’s

offense level was sixteen or greater.

       On July 19, 2004, the United States Probation and Pretrial Services Office issued a

Presentence Report (“PSR”). Using the 2003 version of the Guidelines, the PSR calculated

Maxwell’s base offense level at thirty-eight, which was lowered to thirty-five for Maxwell’s

acceptance of responsibility, and his criminal history category at six. Based on this adjusted offense

level and criminal history category, the Guidelines range was set at 292 to 365 months. Because of

Maxwell’s two previous felony drug convictions, however, he was subject to a statutorily mandated

minimum sentence of life imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(A). He also was subject

to a consecutive minimum term of five years’ imprisonment for the firearms offense.

       No objections were filed to the PSR. On June 23, 2004, prior to Maxwell’s sentencing, the

Government filed a motion for a downward departure pursuant to 18 U.S.C. § 3553(e) and U.S.S.G.

§ 5K1.1, recommending a sentence within the otherwise-applicable Guidelines range of 292 to 365

months, plus five consecutive years for the firearms offense. At the sentencing hearing on June 26,

2004, the district court granted the Government’s motion and, stating that it had “no ability to

evaluate the extent of Maxwell’s cooperation other than what the government has [said] in their . . .

motion,” sentenced Maxwell to 328 months’ imprisonment for the drug offense and 60 months for

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United States v. Maxwell
the firearms offense, to be served consecutively, followed by 10 years of supervised release. (R. 99,

Tr. of Sentencing Hr’g 17.)

       On March 3, 2008, following the Sentencing Commission’s enactment of Amendment 706

to the Guidelines—which, as further amended by Amendment 711, reduced the base offense level

for most offenses involving crack-cocaine—Maxwell moved for a reduction of sentence pursuant

to 18 U.S.C. § 3582(c)(2). On May 12, 2009, the district court denied the motion, reasoning that,

because Maxwell was sentenced “based on the mandatory minimum rather than on a guideline range

that was subsequently reduced, Amendment 706 would not have lowered the applicable guideline

range and does not authorize a reduction in defendant’s sentence.” (R. 106, Order Den. Mot. to

Reduce Sentence 2.) This appeal followed.

                                          II. ANALYSIS

       We review de novo a district court’s determination that a defendant is ineligible for a

sentence reduction. United States v. Curry, No. 08-1732, 2010 WL 455364, at *3 (6th Cir. Feb. 10,

2010). A district court may modify a defendant’s sentence only as provided by statute. See 18

U.S.C. § 3582(c) (stating that courts “may not modify a term of imprisonment once it has been

imposed” other than pursuant to statutory exceptions). One such exception is set out in 18 U.S.C.

§ 3582(c)(2), which provides that a district court may reduce a sentence that is based on a

subsequently lowered Guidelines range as long as the reduction is in accordance with applicable

Policy Statements in the Guidelines:

       [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 or the

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No. 09-5668
United States v. Maxwell
       Director of the Bureau of Prisons, or on its own motion, the court may reduce the
       term of imprisonment, after considering the factors set forth in section 3553(a) to the
       extent they are applicable, if such a reduction is consistent with applicable policy
       statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

       One such Policy Statement is U.S.S.G. § 1B1.10, which identifies the Guidelines

amendments (including Amendments 706 and 711) that may be applied retroactively and stipulates

which defendants may benefit from them:

       (1) In General.—In a case in which a defendant is serving a term of imprisonment,
           and the guideline range applicable to that defendant has subsequently been
           lowered as a result of an amendment to the Guidelines Manual listed in
           subsection (c) below, the court may reduce the defendant’s term of
           imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C.
           § 3582(c)(2), any such reduction in the defendant’s term of imprisonment shall
           be consistent with this policy statement.

       (2) Exclusions.—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—

             (A) none of the amendments listed in subsection (c) is applicable to the
                 defendant; or

             (B) an amendment listed in subsection (c) does not have the effect of lowering
                 the defendant’s applicable guideline range.

U.S.S.G. § 1B1.10(a). Thus, under the combination of § 3582(c)(2) and § 1B1.10(a), a defendant

may be eligible for a sentence reduction when (i) he has been sentenced “based on” a Guidelines

range that subsequently has been lowered and (ii) the Guidelines range “applicable to” the defendant

has been lowered as the result of an amendment listed in § 1B1.10(c).




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No. 09-5668
United States v. Maxwell
       Maxwell claims that he qualifies for such a reduction because Amendment 706, as further

amended by Amendment 711, has the effect of lowering his applicable Guidelines range of 292 to

365 months to 235 to 293 months. Noting that the district court, in sentencing him to 328 months’

imprisonment for the drug offense, relied on the Government’s recommendation that he be sentenced

within the otherwise-applicable Guidelines range, he argues that his sentence should be construed

as being “based on” this range. Because we find that no Guidelines range subsequently lowered by

the Sentencing Commission is applicable to Maxwell, however, we need not address whether the

district court’s reliance on the otherwise-applicable Guidelines range in calculating the value of

Maxwell’s substantial assistance satisfies the “based on” requirement of § 3582(c)(2). Cf. United

States v. Doe, 564 F.3d 305, 309 (3d Cir. 2009) (finding it unnecessary to address § 3582(c)(2)’s

“based on” requirement because § 1B1.10’s “applicable to” requirement was not met).

       In considering whether a defendant’s sentence is “based on” a Guidelines range that

subsequently has been lowered, we look to “what the district court actually said and did at the

original sentencing.” See United States v. Hameed, No. 09-3259, 2010 WL 2976048, at *5 (6th Cir.

July 26, 2010) (internal quotation marks omitted). By contrast, when we consider whether a

subsequently lowered Guidelines range is “applicable to” the defendant, we look to whether the

sentencing framework established by statute and the Guidelines permits or requires consideration

of that range in determining the defendant’s final sentence. See id. at *8; cf. United States v.

Pembrook, No. 08-6452, 2010 WL 2499656, at *3-*4 (6th Cir. June 11, 2010) (focusing on the

Application Instructions to the Guidelines set out in U.S.S.G. § 1B1.1 in concluding that the crack-

cocaine Guidelines range was inapplicable to the defendant). Here, the PSR calculated Maxwell’s

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No. 09-5668
United States v. Maxwell
adjusted offense level as thirty-five and his criminal history as six, resulting in a Guidelines range

of 292 to 365 months. This Guidelines range, as Maxwell notes, subsequently has been lowered by

Amendment 706. But this range was not “applicable to” Maxwell because his two previous felony

drug convictions rendered him subject to a statutorily mandated minimum sentence of life

imprisonment. Nor was this range applicable to the district court’s calculation of a downward

departure from this minimum under 18 U.S.C. § 3553(e). “[T]he appropriate starting point for

calculating a downward departure under 18 U.S.C. § 3553(e) is the mandatory minimum itself,”

United States v. Stewart, 306 F.3d 295, 332 (6th Cir. 2002), and “only factors relating to a

defendant’s cooperation may influence the extent of [the] departure.” United States v. Bullard, 390

F.3d 413, 416 (6th Cir. 2004) (internal quotation marks and brackets omitted). Thus, application of

the subsequently lowered Guidelines range was neither permitted nor required in calculating the

mandatory minimum sentence or the downward departure from it.1

        Maxwell also argues that allowing a sentence reduction pursuant to § 3582(c)(2) only when

the requirements of § 1B1.10 are met effectively treats the Guidelines as mandatory, in violation of

United States v. Booker, 543 U.S. 220 (2005), and Kimbrough v. United States, 552 U.S. 85 (2007).

Since Maxwell filed his appeal, however, the Supreme Court has rejected this argument in

addressing the related question of whether treating as binding § 1B1.10’s requirement that a sentence



       1
         That the district court, in determining the extent of the departure, followed the
Government’s recommendation that Maxwell be sentenced within the original Guidelines range
is not relevant to the “applicable to” analysis. What the court actually did at sentencing is the
subject of the “based on” inquiry, not the “applicable to” inquiry, which focuses on what the
court was permitted and required to do.

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No. 09-5668
United States v. Maxwell
reduction under § 3582(c)(2) be no greater than the amended Guidelines range implicates Booker.

Dillon v. United States, No. 09-6338, 2010 WL 2400109 (U.S. June 17, 2010). The Court reasoned

that, because a sentence reduction under § 3582(c)(2) is not a full resentencing, the statutory

requirement that the reduction comport with the Sentencing Commission’s Policy Statements,

including § 1B1.10, does not raise the constitutional issues at issue in Booker. See id. at *5-*7.

While the question addressed in Dillon is slightly different than that at issue here, the Court’s

reasoning forecloses Maxwell’s challenge.

                                      III. CONCLUSION

       For all the reasons above, we AFFIRM the district court’s denial of Maxwell’s motion for

a sentence reduction pursuant to § 3582(c)(2).




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No. 09-5668
United States v. Maxwell
        ALICE M. BATCHELDER, Chief Judge, concurring in part and dissenting in part.

I concur in the majority’s judgment that Clifton Maxwell is ineligible for a sentence reduction under

18 U.S.C. § 3282(c). However, I disagree with the implication that, in the case of a defendant who

was sentenced pursuant to a statutory minimum, we must look both to whether the sentence was

“based on” a Guidelines range that subsequently has been lowered, and whether the Guidelines range

“applicable to” the defendant has been lowered. Rather, as I explained in United States v. Hameed,

No. 09-3259 (6th Cir. July 26, 2010), “in cases such as the one before us here, this two-part test

collapses into one question: was the defendant sentenced pursuant to a statutory minimum?” Id.,

slip op. at 16 (Batchelder, C.J., concurring in part and dissenting in part).

        While the majority opinion comes to the correct conclusion, it is curious that it does not cite

to United States v. Johnson, 564 F.3d 419 (6th Cir. 2009), which — as even Maxwell concedes —

controls the outcome of this case. In Johnson, a defendant convicted of conspiring to distribute crack

cocaine had a calculated Guidelines’ range of 235 to 293 months, but he was also subject to a

mandatory minimum sentence of 240 months pursuant to 21 U.S.C. § 841(b)(1)(A). Prior to his

sentencing, the government moved for a departure pursuant to 18 U.S.C. § 3553(e), based on

Johnson’s substantial assistance. The district court granted the motion and sentenced him to 108

months. Years later, after Amendment 706 reduced the crack cocaine offense levels, Johnson moved

for an additional sentence reduction, which the district court denied. We affirmed the district court,

making no distinction between the “based on” and “applicable to” prongs that the majority seeks to

promote. Instead, we clearly held that in cases such as Johnson’s, the defendant “was not in fact

sentenced based on a Guidelines range that was subsequently reduced. Rather, his sentence was

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United States v. Maxwell
based on the mandatory minimum imposed by 21 U.S.C. § 841(b)(1)(A), which remained unchanged

by Guidelines Amendment 706.” Johnson, 564 F.3d at 423. Thus, in cases such as these — and

Maxwell’s is indisputably one of them — we do not look to “what the district court actually said and

did at the original sentencing,” United States v. Hameed, No. 09-3259, slip op. at 7, as that is

inapposite. Instead, we merely inquire as to whether the defendant was sentenced pursuant to a

statutory minimum. If the answer is in the affirmative, then “where a statutorily required minimum

sentence is greater than the maximum of the applicable guidelines range, the statutorily required

minimum sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b).




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