Appeal from a March 27, 2008 judgment of the United States District Court for the District of Connecticut (Hall, J.) denying defendant-appellant Darius McGee's motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) and the so-called crack amendments. VACATED AND REMANDED.
Argued: December 10, 2008
Before: POOLER, RAGGI, and LIVINGSTON, Circuit Judges.
In this decision, we address the narrow question of whether a defendant such as appellant Darius McGee, who at sentencing was designated a career offender but granted a departure so that he was ultimately sentenced based on the crack cocaine (cocaine base) guidelines, is eligible for a reduced sentence pursuant to the so-called crack amendments. As we recently discussed in United States v. Williams, --F.3d--, 2009 WL 32564, at *2 (2d Cir. 2009), these amendments came about on November 1, 2007, when the United States Sentencing Commission promulgated Amendment 706, which amended the Drug Quantity Table in United States Sentencing Guidelines Section 2D1.1(c). U.S.S.G. Supp. to App. C, amend. 706 (2008). The effect of Amendment 706 is to provide a two-level reduction in base offense levels for crack cocaine offenses. See id.*fn1
McGee contends that he is eligible for this two-level reduction because, at sentencing, the district court, though designating him a career offender, see U.S.S.G. § 4B1.1, ultimately based his sentence on the crack cocaine guidelines after downwardly departing based on a finding that the career offender classification overrepresented his criminal history, see U.S.S.G. § 4A1.3(b). Thus, applying the 2001 Sentencing Guidelines, the district court sentenced McGee to 115 months based on a post-departure sentencing range that was calculated as follows: a base offense level of twenty-six (the level corresponding to at least five grams but less than twenty grams of crack cocaine) under U.S.S.G. § 2D1.1(c)(7), minus three levels for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a total offense level of twenty-three and criminal history category of six, and consequently a sentencing range of ninety-two to 115 months imprisonment. McGee asserts that after applying Amendment 706 as well as the three-level reduction under U.S.S.G. § 3E1.1, his total offense level is now twenty-one and his sentencing range seventy-seven to ninety-six months. The district court rejected this argument. Noting that defendants sentenced as career offenders are unaffected by Amendment 706, the district court agreed with the government that McGee was ineligible for a reduced sentence because his pre-departure range, i.e., his career offender guideline range and not the crack cocaine guideline range, was the "applicable guideline range" affected by Amendment 706.
We have jurisdiction under 28 U.S.C. § 1291, and though recognizing the issue to be a very close one, we hold that McGee is eligible for a reduced sentence, vacate the district court's decision, and remand for reconsideration of McGee's 18 U.S.C. § 3582(c)(2) motion for a reduced sentence.
We review the district court's interpretation of the statute and the Guidelines de novo. See Williams, 2009 WL 32564, at *3; United States v. Kerley, 544 F.3d 172, 179 (2d Cir. 2008). It is well established that "[a] district court may not generally modify a term of imprisonment once it has been imposed." Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir. 2007). One of the limited exceptions to this rule exists when the sentencing range under which the defendant was sentenced is subsequently lowered by the Sentencing Commission. Section 3582(c)(2) states:
[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 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 that 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) (emphasis added).
At the outset, we note that we are not presented with the question of whether a defendant who is sentenced as a career offender, but does not receive a downward departure, qualifies for a reduced sentence under the amendments. The consensus is that such a defendant would not. See United States v. Thomas, 524 F.3d 889, 890 (8th Cir. 2008) (per curiam); Sharkey, 543 F.3d at 1239; Moore, 541 F.3d at 1327-28; see also United States v. Liddell, 543 F.3d 877, 882 n.3 (7th Cir. 2008) (stating same in dicta). Rather, the question we must answer is whether the fact that the district court granted a downward departure under U.S.S.G. § 4A1.3 from the career offender guideline range down to the crack guideline range, upon finding that the career offender status overstated defendant's criminal history, renders McGee eligible for the two-level sentence reduction.
From our review of the record, it is apparent that McGee was sentenced "based on" a sentencing guideline range that was subsequently lowered by the Sentencing Commission because the district court premised McGee's ultimate sentence on the crack cocaine guidelines. Indeed, had the amendments been in place at the time of sentencing, it is likely that the district court would have given McGee a sentence within the now reduced guideline range of 77 to 96 months. For, in granting the departure, the district court explicitly stated that it was departing from the career offender sentencing range "to the level that the defendant would have been in absent the career offender status calculation and consideration," thereby accepting the government's contention that the appropriate category for McGee was that into which he "would have fallen absent the career offender effect upon his guideline calculation."
The government nevertheless objects to McGee's claim of eligibility, stating as follows:
(1) a court may reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) only "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission"; and (2) U.S.S.G. § 1B1.10, which is a policy statement, indicates that its reference to the "guideline range applicable to th[e] defendant" refers to the pre-departure (rather than post-departure) sentencing range. As relevant here, that policy statement provides that a reduction in a defendant's sentence is not authorized where the amendment in question, in this case Amendment 706, "does not have the effect of lowering the defendant's applicable guideline range." Id. § 1B1.10(a)(2)(B). To assess whether a reduction is warranted, a district court is instructed to determine the Guidelines range "that would have been applicable to the defendant if the amendment(s) to the guidelines . . . had been in effect at the time the defendant was sentenced," while leaving "all other guideline application decisions unaffected." Id. § 1B1.10(b)(1). And after stating the general rule that "the court ...