Appeals from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Smith, Circuit Judge
Submitted: January 14, 2009
Before MURPHY and SMITH, Circuit Judges, and LIMBAUGH, District Judge.*fn1
Jasen Byers,*fn2 Edward D. Robertson, and Johnny D. Guess (collectively, "appellants"), each incarcerated for cocaine offenses, appeal from the district court's denial of their 18 U.S.C. § 3582(c)(2) motions for sentence reductions. They each filed their motions to reduce their sentences based on a recent amendment to the Guidelines, which, if applicable, reduces the base offense level derived from the cocaine base quantity involved in their offenses. But all three men were subject to a statutory mandatory minimum sentence, which became their Guidelines range pursuant to U.S.S.G. § 5G1.1(b). Each also received a downward departure from that range because the government filed downward departure motions. The district court*fn3 denied all three appellants' motions to reduce their sentences, finding that none of them were eligible for a further reduction of their sentences because the statutory mandatory minimum would still be the starting point for any departure. We affirm.
Byers pleaded guilty to conspiracy to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(a), and 846. The presentence investigation report (PSR) concluded that Byers's advisory Guidelines range was 168 to 210 months' imprisonment, but this range was overridden by the statutory mandatory minimum of 240 months' imprisonment. 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 minimum sentence shall be the guideline sentence.").
Prior to sentencing, the government filed a motion for downward departure, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), based on Byers's substantial assistance. The district court granted the government's motion and sentenced Byers to 150 months' imprisonment, followed by a five-year term of supervised release.
Thereafter, the government filed a motion pursuant to Federal Rule of Criminal Procedure 35 asking the district court to further reduce Byers's sentence based on cooperation subsequent to his original sentencing. The district court granted the motion, sentencing Byers to 96 months' imprisonment, followed by a five-year term of supervised release.
"On November 1, 2007, the Sentencing Commission's amendment of the Drug Quantity Table in U.S.S.G. § 2D1.1(c) with respect to offense levels for crack cocaine offenses became effective. U.S.S.G. Supp. to App. C, amend. 706 (2007). On December 11, 2007, the Sentencing Commission voted to make [Amendment 706] retroactive." United States v. Williams, 551 F.3d 182, 184 (2d Cir. 2009). As a result, application of Amendment 706 may retroactively reduce the base offense level for cocaine base offenses by two levels. See Application Note 10(D) to U.S.S.G. § 2D1.1.
Once apprised of the change in the law, Byers filed a motion to reduce his sentence pursuant to Amendment 706 and § 3582(c)(2). The court below denied Byers's motion, stating:
Defendant's guidelines range was subject to a mandatory minimum. An offense level of 31 and a criminal history category of V ordinarily yields a sentencing range of 168--210 months. However, the statutory minimum of 240 months effectively became the sentence, and the sentencing judge departed (pursuant to motions filed under 5K1 and 18 U.S.C. § 3553(3)(3)) based on that statutory minimum and sentenced Defendant to one hundred fifty months. The sentence was later reduced to ninety-six months pursuant to a Rule 35 motion. Applying the amended guidelines will not affect Defendant's sentence because the reductions were based on or "keyed" to the statutorily mandated minimum sentence of 240 months-a statutory minimum that still applies even if the amended guidelines are applied. While it is true that Defendant does not gain any benefit from the amended guidelines, it is also true that he was not "damaged" by the amended guidelines because they played no part in establishing his sentence.
Robertson pleaded guilty to possession with intent to distribute 50 grams or more of cocaine base ("Count One"), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and possession of firearms in furtherance of a drug trafficking crime ("Count Two"), in violation of 18 U.S.C. § 924(c). The PSR concluded that Robertson's advisory Guidelines range was 108 to 135 months' imprisonment for Count One, plus 60 months' imprisonment for Count Two. But Robertson's advisory Guidelines range was ...