Argued on July 12, 2012
On Appeal from the United States District Court for the Middle District and the Eastern District of Pennsylvania (D. C. Nos. 3-07-cr-00393-001; 3-06-cr-00283-001; 2-07-cr-00283-001) District Judges: Honorable Michael M. Baylson, Honorable Thomas I. Vanaskie and Honorable James M. Munley
James V. Wade, Esquire Federal Public Defender Middle District of Pennsylvania Frederick W. Ulrich, Esquire Assistant Federal Public Defender Counsel for Appellants Albert Savani and Sean Herbert
Sarah S. Gannett, Esquire (Argued) Assistant Federal Defender Christy Unger, Esquire Brett G. Sweitzer, Esquire Assistant Federal Defender Supervising Appellate Attorney Leigh M. Skipper, Esquire Chief Federal Defender Federal Community Defender Office Eastern District of Pennsylvania Counsel for Appellant Richard Roe
Bernadette A. McKeon, Esquire Kathy A. Stark, Esquire Robert A. Zauzmer, Esquire (Argued) Office of the United States Attorney Counsel for Appellee
Before: FUENTES, HARDIMAN and ROTH, Circuit Judges
ROTH, Circuit Judge.
The question presented in this consolidated appeal is whether appellants, Albert Savani, Sean Herbert, and Richard Roe,  are eligible for reductions of their sentences pursuant to 18 U.S.C. § 3582(c)(2). In each case, the appellant was convicted of a cocaine base (crack) related offense, the government moved for a downward departure due to the appellant's substantial assistance, and the District Court granted the departure and sentenced the defendant below the statutory mandatory minimum. Shortly thereafter, the Fair Sentencing Act of 2010 (FSA) became law, and the United States Sentencing Commission approved Amendment 750, a retroactive amendment, which lowered the base offense levels applicable to crack cocaine offenses. In light of Amendment 750, appellants moved to further reduce their sentences.
Despite the government's willingness at the time of the original sentencing to have appellants sentenced below the mandatory minimum sentence, the government opposed the FSA motions in each case on the basis that the original sentences were governed by the mandatory minimums. The government contends that in this situation, in which the guidelines range is below the statutory mandatory minimum sentence, the mandatory minimum is defined as the "guideline sentence." Although the qualifying amount of cocaine base necessary to trigger the mandatory minimum sentence has now been increased, the government asserts nevertheless that the duration of the statutorily required minimum sentence, the "guideline sentence, " has not been changed; thus, the appellants are still subject to the mandatory minimum sentence. The district courts denied the motions on this basis.
On appeal, appellants contend that the district courts erred in denying their motions because (1) their terms of imprisonment were, at least in part, based on a sentencing range that has subsequently been lowered by the Sentencing Commission and (2) a sentence reduction is consistent with the applicable policy statements issued by the Sentencing Commission. With respect to the latter, appellants assert that this Court's interpretation in United States v. Doe, 564 F.3d 305 (3d Cir. 2009), of the term "applicable guideline range" is superseded by the Sentencing Commission's November 2011 revisions to the Guidelines, which included, for the first time, a definition of the phrase "applicable guideline range." For the reasons set forth below, we agree that Doe has been superseded. We conclude that defendants, who are convicted of crack cocaine offenses and whose original sentences were below the mandatory minimum applicable to them because of substantial assistance to the government, are not barred for policy reasons from seeking a reduction of sentence pursuant to § 3582(c)(2). We will, therefore, vacate the orders of the district courts and remand these cases for further proceedings.
The facts regarding Savani, Herbert, and Roe are essentially similar.
A. Albert Savani
In May 2008, Savani entered into a cooperation plea agreement with the government and pled guilty to one count of conspiracy to distribute, and to possess with intent to distribute, more than 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. At that time, the base offense level dictated by the crack cocaine guideline for this conviction was 30. See U.S.S.G. § 2D1.1(c) (Nov. 2007). Savani received a two-level reduction for his minor role in the offense and a three level reduction for acceptance of responsibility, yielding a total adjusted offense level of 25. Based upon his total offense level of 25 and a criminal history category of II, Savani's initial guideline sentencing range was 63-78 months of imprisonment. See U.S.S.G. § 5A. However, because of the amount of crack cocaine involved in the offense, Savani was subject to a ten-year mandatory minimum sentence, pursuant to 21 U.S.C. § 841(a)(1)(A). See U.S.S.G. § 1B1.1(h) (Nov. 2007). Therefore, his guideline sentence was deemed to be 120 months. 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.").
The plea agreement also provided that, if Savani provided substantial assistance to the government, the government might request the court to depart below the applicable mandatory minimum, the applicable guideline range, or both, when imposing his sentence. At Savani's sentencing, the government moved, pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5k1.1, for the court to depart from the mandatory minimum and to impose a sentence within the Sentencing Guidelines range of 63 to 78 months' imprisonment. The District Court not only granted the motion to depart, it departed further than the government had requested and imposed a sentence of 46 months, which was below the mandatory minimum.
Savani died on January 29, 2013.
B. Sean Herbert
In January 2008, Herbert entered into a cooperation plea agreement with the government and pled guilty to one count of possession with intent to distribute in excess of 50 grams of crack cocaine and powder cocaine, in violation of §§ 841(a)(1) and 841(b)(1)(A). In the plea agreement, the parties agreed that Herbert was involved in the distribution of more than 50 and less than 150 grams of crack cocaine and more than 300 grams and less than 400 grams of powder cocaine. They also agreed that a sentence within the applicable range of the Sentencing Guidelines would be a reasonable sentence. At that time, the base offense level dictated by the crack cocaine guideline for Herbert's conviction was 30. See § 2D1.1(c) (Nov. 2007). After receiving a three level downward adjustment, his total adjusted offense level was 27. Based upon this total offense level and his criminal history category of III, Herbert's initial guideline sentencing range was 87-108 months of imprisonment. See § 5A. However, because of the amount of crack cocaine involved in the offense, Herbert was subject to a ten-year mandatory minimum, under § 841(a)(1)(A). See § 1B1.1(h) (Nov. 2007). Therefore, the guideline sentence was deemed to be the 120 months mandatory minimum. See § 5G1.1(b).
The plea agreement also provided that if Herbert provided substantial assistance to the government, the government might request a departure below the statutory mandatory minimum and/or the guideline range. At Herbert's June 2008 sentencing, the government moved, pursuant to § 3553(e) and U.S.S.G. § 5k1.1, for the court to depart below the applicable mandatory minimum to impose a sentence of 110 months. The District Court granted the motion and, after considering additional factors, sentenced Herbert to 98 months of incarceration.
C. Richard Roe
In April 2008, Roe entered into a cooperation plea agreement with the government and pled guilty to two counts of distribution of five grams or more of crack cocaine and two counts of distribution of 50 grams or more of crack cocaine, all in violation of § 841(a)(1). As part of the plea agreement, he stipulated that his offense involved 189.6 grams of crack cocaine. At that time, the base offense level for that amount of crack cocaine was 32, see § 2D1.1(c) (Nov. 2007); Roe then received a three-level reduction for acceptance of responsibility, yielding a final offense level of 29. With this offense level and his criminal history category of V, Roe's initial guideline sentencing range was 140-175 months' imprisonment. See § 5A. However, due to a prior drug conviction, Roe was subject to a statutory mandatory minimum sentence of 240 months. See 21 U.S.C. § 841(b)(1)(B); § 1B1.1(h) (Nov. 2007). Because the mandatory minimum sentence exceeded the initial guideline sentencing range, the mandatory minimum became the guideline sentence. See § 5G1.1.
Roe's plea agreement also contained a provision that if he provided substantial assistance to the government, it might move for a sentence below the statutory mandatory minimum. At Roe's April 2008 sentencing, the government moved under § 5K1.1 and § 3553(e) for a reduction of Roe's sentence. The District Court granted the government's motion and sentenced Roe to 96 months' imprisonment.
D. Fair Sentencing Act of 2010
On August 3, 2010, after appellants' sentencings, the FSA became law. Designed as "[a]n Act To restore fairness to Federal cocaine sentencing, " United States v. Dixon, 648 F.3d 195, 197 (3d Cir. 2011) (quoting Fair Sentencing Act of 2010, Pub. L. 111–220, § 2, 124 Stat. 2372, 2372 (2010)), one provision of the FSA modified the mandatory minimum crack cocaine penalties by raising the quantities required to trigger the five-year and ten-year mandatory minimum penalties, id. (citing Pub. L. 111–220, § 2). These changes reduced the disparity in triggering quantity between powder cocaine and crack cocaine from 100:1 to approximately 18:1. Id.
The FSA also directed the Sentencing Commission to promulgate emergency amendments to conform the Sentencing Guidelines to the statutory changes. Id. (citing Pub. L. No. 111-220, § 8). The Sentencing Commission complied with this directive by issuing temporary emergency guideline amendments in 2010, see id. at 197-98 (citing U.S.S.G. Supp. to App. C, amend. 748 (Supp. 2010) (amending U.S.S.G. § 2D1.1(c)) (effective Nov. 1, 2010)), which became permanent and retroactively applicable on November 1, 2011, see U.S.S.G., App. C., amends. 750, 759. One of these, Amendment 750, amended U.S.S.G. § 2D1.1, reducing by the same 18:1 ratio the amount of crack cocaine necessary to trigger the mandatory minimums. See U.S.S.G., App. C., amend. 750.
Based upon Amendment 750, appellants filed motions for reduction of sentence pursuant to § 3582(c)(2). In all three cases, the district courts ...