Submitted May 21, 2013.
Joseph J. Karaszewski, United States Attorney's Office, Buffalo, N.Y. (William J. Hochul, Jr., United States Attorney's Office, Buffalo, N.Y., on the brief), for Appellee.
Jonathan I. Edelstein, Edelstein & Grossman, New York, N.Y., for Defendant-Appellant.
Before: NEWMAN, KEARSE, and POOLER, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
Under 18 U.S.C. § 3582(c)(2), a federal court may, in certain circumstances, reduce a defendant's term of imprisonment because of amendments to the United States Sentencing Guidelines (the " Guidelines" ). This sentencing appeal concerns the application of section 3582(c)(2) in the unusual context of a combination of Guidelines amendments, an amended statutory mandatory minimum, and a substantial assistance departure from a mandatory minimum authorized by 18 U.S.C. § 3553(e). The appeal presents three issues: (1) whether the Defendant-Appellant is eligible for any section 3582(c)(2) reduction, (2) whether a section 3553(e) departure from a
mandatory minimum displaces the mandatory minimum for purposes of Guidelines calculations, and whether the reductions in mandatory minimums made by the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372 (the " FSA" or the " Act" ) apply to a defendant sentenced before the effective date of the FSA whose sentence was reduced after that date pursuant to section 3582(c)(2).
These issues arise on an appeal by Defendant-Appellant Matthew Johnson from the May 25, 2012, order of the United States District Court for the Western District of New York (William M. Skretny, Chief Judge), granting his motion for a sentence reduction pursuant to section 3582(c)(2). Chief Judge Skretny reduced Johnson's sentence from 87 months to 78 months. Johnson contends that the Court's calculation of the reduction was improper and should have resulted in a range of 57-71 months.
We conclude that Johnson was not eligible for a reduction under section 3582(c)(2), that the mandatory minimum applicable to Johnson has not been displaced, and that the FSA does not apply to Johnson. In the absence of a cross-appeal by the Government, we affirm.
In May 2009, Johnson pled guilty to conspiracy to distribute and possess with intent to distribute 50 grams or more of a substance containing cocaine base (sometimes called " crack cocaine" ). At the time, the statutory minimum sentence for this offense was ten years' imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii) (2009). The plea agreement provided that the amount of cocaine base involved in Johnson's relevant conduct was between 150 and 500 grams. The agreement also provided that Johnson would cooperate in the investigation and prosecution of others, and if the Government was satisfied with his cooperation, it would move for a two-level downward departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1.
In the presentence investigation report (" PSR" ), the Probation Department determined that Johnson's base offense level was 32. See U.S.S.G. § 2D1.1(c)(4) (2008). With a three-level reduction for acceptance of responsibility, see id. § 3E1.1(a), (b), Johnson's adjusted offense level was 29. This adjusted offense level and a criminal history category (" CHC" ) of III resulted in an advisory sentencing range of 108-135 months. However, because the statutory minimum term of imprisonment was ten years, the Probation Department adjusted its recommended sentencing range to 120-135 months, pursuant to U.S.S.G. § 5G1.1(c)(2) (sentence may not be " less than any statutorily required minimum sentence" ).
Pursuant to the plea agreement, the Government moved for a substantial assistance departure, specifically a two-level reduction in the adjusted offense level ...