09-3866 U.S. v. Guyton

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Sentencing
Crack cocaine

A defendant sentenced under the career offender guideline, but with a downward departure for substantial assistance, is not eligible for a retroactive reduction.

“[S]ection 1B1.10 takes for granted that a defendant who received a ‘downward departure’ in the pre-Booker era received a specific term of imprisonment below his applicable range. Specifically, section 1B1.10(b)(2)(B) states that if a district court considers a motion under section 3582(c)(2) pursuant to a retroactively-amended guideline range, the court may sentence below the amended range only if ‘the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing.’ (Emphasis added.) This provision assumes that ‘the applicable guideline range’ is the range established before a district court decides to depart or vary downward. E.g., United States v. Pembrook, 609 F.3d 381, 384-85 (6th Cir. 2010). Contra, United States v. Flemming, 617 F.3d 252, 266 n.20 (3d Cir. 2010); United States v. McGee, 553 F.3d 225, 228 (2d Cir. 2009). The provision in subsection (b)(2)(B) makes little sense if the departure itself is treated as providing the applicable ‘range.’”

Affirmed.

09-3866 U.S. v. Guyton

Appeal from the United States District Court for the Northern District of Indiana, Lozano, J., Hamilton, J.

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