UNITED STATES of America, Plaintiff-Appellee, v. Daryl Marcus PEMBROOK, Defendant-Appellant, 609 F.3d 381

BOGGS, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. ROGERS, J. (pp. 387-92), delivered a separate dissenting opinion. OPINION BOGGS, Circuit Judge. In 1997, Daryl Marcus Pembrook pleaded guilty to possession with intent to distribute crack cocaine. Under U.S.S.G. § 4B1.1, Pembrook was a career offender. At sentencing, Pembrook prevailed upon the district court to depart downward from his career-offender guideline range to a sentence stated with reference to the analogous range for his crack-cocaine offenses.

A decade later, Pembrook filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that Amendment 706 to the crack-cocaine guidelines had lowered his applicable guideline range. The district court denied his motion, on the grounds that Pembrook’s applicable guideline range was his career-offender range—not his crack-cocaine range — and Amendment 706 did not affect that range. Pembrook now appeals. Because we conclude that Pembrook’s applicable guideline range was his career-offender range, and Amendment 706 did not have the effect of lowering that range, we affirm.

I On December 19, 1997, Pembrook appeared before the United States District Court for the Western District of Tennessee and pleaded guilty to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). The Presentenee Investigation Report (PSR) determined that Pembrook qualified as a career offender because he was twenty-six years old, his instant conviction was a controlled-substance felony, and he had two prior controlled-substance felony convictions.

Consequently, Pembrook had a total offense level of thirty-four and a criminal history category of VI, resulting in a guideline range of 262-367 months. At Pembrook’s sentencing hearing, neither party objected to the PSR, and the district court determined that Pembrook’s guideline range was 262-367 months.

Pembrook moved for a downward departure pursuant to U.S.S.G. §§ 4A1.3 and 5K2.0, arguing that his “criminal history category significantly over representad] the seriousness of his past conduct,” and that his case “presented] circumstances and factors that really put his cases outside of the heartland of cases covered by the Guidelines.” The district court proved sympathetic to Pembrook’s arguments and decided to grant Pembrook a downward departure.

The court observed that “if the defendant were not qualified as a Career Criminal, which he is, he would be looking at 188 to 235 months of incarceration.” After hearing from the Government, the district court decided to impose a 200-month sentence. The court explicitly stated that this sentence was within the guideline range that would have applied to Pembrook had he not qualified as a career offender.

Nearly ten years after Pembrook was sentenced, the United States Sentencing Commission adopted Amendment 706 to the Sentencing Guidelines, which retroactively reduced the base offense level for most crack-cocaine offenses. Shortly thereafter, on June 6, 2008, Pembrook filed a motion with the district court, seeking a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2). Pembrook contended that he was eligible for such a reduction because the district court had originally imposed a sentence “based on” his crack-cocaine guideline range, and Amendment 706 lowered that range.

The district court, however, concluded that Pembrook was not eligible for a sentence reduction because Pembrook’s applicable guideline range was his career-offender range, not his crack-cocaine range, and Amendment 706 did not affect that range. The district court therefore denied Pembrook’s motion. Pembrook timely appealed. II On appeal, Pembrook claims that the district court erred when it concluded that he was ineligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We review a district court’s denial of a motion to modify a sentence under § 3582(c)(2) for an abuse of discretion.

United States v. Perdue, 572 F.3d 288, 290 (6th Cir.2009). A district court abuses its discretion when it relies on clearly erroneous findings of fact, applies the law improperly, or uses an erroneous legal standard. Ibid. A district court may modify a defendant’s sentence only as authorized by statute. Ibid.

Section 3582(c)(2) authorizes a district court to reduce a defendant’s sentence when (1) the defendant “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),” and (2) “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added).

The applicable policy statement, U.S.S.G. § 1B1.10, provides that “[a] reduction in the defendant’s term of imprisonment is not consistent with this policy statement [if] ... [a]n amendment [to the Guidelines] does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B) (emphasis added). Accordingly, a defendant is ineligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) unless an amendment to the Sentencing Guidelines lowers the defendant’s “applicable guideline range.” See United States v.

Washington, 584 F.3d 693, 700 (6th Cir.2009) (“When Congress granted the district courts authority to reduce otherwise valid sentences pursuant to § 3582(c)(2), it explicitly restricted judicial discretion by incorporating the Commission’s policy statements.... ”). In this case, Pembrook contends that his “applicable guideline range” is the guideline range that the sentencing court referenced after it chose to depart downward pursuant to U.S.S.G. §§ 4A1.3 and 5K2.0 — that is, his crack-cocaine guideline range.

Pembrook therefore concludes that he is eligible for a sentence reduction based on Amendment 706 to the Sentencing Guidelines. Our circuit has not yet addressed the meaning of “applicable guideline range” in this context. Pembrook’s position finds support in recent decisions by the Second and Fourth Circuits, which have held that when a sentencing court uses its authority under U.S.S.G. § 4A1.3 to depart downward from the career-offender guideline range to the crack-cocaine guideline range, the defendant’s applicable guideline range is his crack-cocaine range. United States v.

Munn, 595 F.3d 183, 192-93 (4th Cir. 2010); United States v. McGee, 553 F.3d 225, 229-30 (2d Cir.2009). These courts have concluded that such a defendant is eligible for a sentence reduction based on Amendment 706. Munn, 595 F.3d at 192; McGee, 553 F.3d at 230. In contrast, the Eighth and Tenth Circuits have held that a defendant’s applicable guideline range is “the range produced under the guidelines’ sentencing table after a correct determination of the defendant’s total offense level and criminal history category but prior to any discretionary departures.” United States v.

Darton, 595 F.3d 1191, 1197 (10th Cir.2010); see also United States v. Blackmon, 584 F.3d 1115, 1116-17 (8th Cir. 2009); United States v. Tolliver, 570 F.3d 1062, 1066 (8th Cir.2009). The Eighth and Tenth Circuits have therefore concluded that § 3582(c)(2) does not authorize a sentence reduction for a defendant who received a downward departure from the career-offender range to the crack-cocaine range. Darton, 595 F.3d at 1197; Blackmon, 584 F.3d at 1116-17; Tolliver, 570 F.3d at 1066-67.

After a review of U.S.S.G. § 1B1.10 and related guidelines, we agree with the Eighth and Tenth Circuits, and hold that the term “applicable guideline range” in U.S. S.G. § 1B1.10 refers to a defendant’s pre-departure guideline range. The language of U.S.S.G. § 1B1.10 itself (the policy statement applicable to retroactive sentence reductions after amendments) offers some support for this position.

U.S.S.G. § 1B1.10(b)(2) states that a district court may not reduce a defendant’s sentence to a term below an amended guideline range unless “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, [in which case] a reduction comparably less than the amended guideline range ... may be appropriate.” U.S.S.G. § 1B1.10(b)(2)(B) (emphasis added).

This provision specifically refers to the defendant’s applicable guideline range as the guideline range that applied before the sentencing court decided to depart or vary downward. It thus weighs in favor of interpreting the defendant’s applicable guideline range as his pre-departure guideline range. The most persuasive support for this reading of “applicable guideline range,” however, emerges from U.S.S.G. § 1B1.1, which sets forth the “Application Instructions” for the Sentencing Guidelines and establishes the specific order in which courts are to apply guideline provisions.

See U.S.S.G. § 1B1.1; Tolliver, 570 F.3d at 1065-66. The first six steps in the instructions involve calculating the defendant’s total offense level and criminal history category. U.S.S.G. §§ 1B1.1(a)-(f). The next two steps in the instructions direct the sentencing court to “[djetermine the guideline range ... that corresponds to the [defendant’s] offense level and criminal history category” and then to “determine ... the sentencing requirements” for that “particular guideline range.” Id. §§ 1B1.1(g)-(h).

Only after the court has determined the defendant’s guideline range and corresponding sentencing requirements is the court instructed to “Meier to Parts H and K of

Chapter Five, Specific Offender Characteristics and Departures, and to any other policy statements or commentary in the guidelines that might warrant consideration in imposing sentence.” Id. § 1B1.1(i) (emphasis added). This plainly indicates that a defendant’s guideline range is “the range produced under the guidelines’ sentencing table after a correct determination of the defendant’s total offense level and criminal history category but prior to any discretionary departures.” Darton, 595 F.3d at 1197; see also Tolliver, 570 F.3d at 1065-66.

Consistent with this reasoning, the application notes to U.S.S.G. § 1B1.1 define the term “departure” to mean imposition of a sentence outside the applicable guideline range or of a sentence that is otherwise different from the guideline sentence; and ... for purposes of 4A1.3 (Departures Based on Inadequacy of Criminal History Category), assignment of a criminal history category other than the otherwise applicable criminal history category, in order to effect a sentence outside the applicable guideline range. U.S.S.G. § 1B1.1 comment, (n. 1(E)) (emphasis added).

Under this definition, “a departure only exists apart from the applicable guideline range; there is no such thing as a departure to the applicable guideline range.” Darton, 595 F.3d at 1194 (citing Tolliver, 570 F.3d at 1066). This leads inescapably to the conclusion that a defendant’s applicable guideline range under U.S.S.G. § 1B1.10 is his predeparture guideline range. Note 1(

E) specifically says that a departure is “outside the applicable guideline range,” and it would thus be nonsensical to have an “applicable guideline range” that is the result of a departure. Cf. United States v. Er penbeck, 532 F.3d 423, 441 (6th Cir.2008) (indicating that courts should interpret the Sentencing Guidelines as a coherent whole and give consistent meaning to terms throughout the Guidelines). We recognize, however, that the Fourth Circuit rejected this reasoning — at least as it applies to a departure under U.S.S.G. § 4A1.3 — in United, States v. Munn, 595 F.3d at 192-95.

In Munn, the court focused on U.S.S.G. § 1B1.1(f), which instructs a sentencing court to “[determine the defendant’s criminal history category as specified in Part A of

Chapter Four” prior to calculating the defendant’s guideline range. Based on this instruction, the Munn court reasoned that a sentencing court must grant the § 4A1.3 departure— which appears in Part A of

Chapter Four — before determining the defendant’s applicable guideline range. Munn, 595 F.3d at 192. The Munn court therefore concluded that, “under the Application Instructions, [a § 4A1.3 departure] is a departure to, as opposed to a departure from, the applicable guideline range.” Id. at 193. Turning to the definition of “departure” that appears in the application notes to § 1B1.1, the Munn court observed that the Sentencing Commission only added that definition in 2003, and that a court “must apply the Guidelines edition in effect when [the defendant] was sentenced.” Id. at 193 (citing U.S.S.G. § 1B1.11(a)).

Because the defendant in Munn was sentenced in 2001, the court determined that it was inappropriate “to rely, to [the defendant’s] detriment, on the after-the-fact definition of ‘departure.’ ” Ibid. The Munn court’s analysis is not persuasive. As Judge Duncan observed in her well-reasoned dissent from Munn, U.S.S.G. § 4A1.3 “itself belies the [Munn court’s] conclusion[s].” 595 F.3d at 196 (Duncan, J., dissenting). In its present form, § 4A1.3 authorizes a “downward departure” if the defendant’s criminal history category overstates the seriousness of the defendant’s past crimes. U.S.S.G. § 4A1.3(b)(l).

According to the commentary to § 4A1.3, the term “downward departure” in § 4A1.3 has the same meaning that it has in the commentary to § 1B1.1— it is a “departure that effects a sentence less than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise less than the guideline sentence.” U.S.S.G. § 1B1.1 comment, (n. 1(E)) (emphasis added); see also U.S.S.G. § 4A1.3 comment, (n.l) (incorporating the definition of “downward departure” from U.S.S.G. § 1B1.1 comment. (n. I)).

This definition indicates that a § 4A1.3 departure is a departure from the applicable guideline range, not a departure to the applicable guideline range. Likewise, earlier versions of § 4A1.3 authorized a sentencing court to impose “a sentence departing from the otherwise applicable guideline range.” U.S.S.G. § 4A1.3 (1997) (emphasis added). This language clearly assumed that § 4A1.3 would “be applied while determining what sentence to impose after having calculated the applicable guideline range, and not while determining the criminal history category before having calculated the applicable guideline range.

The contrary

interpretation, illogieally, [would] give[] the sentencing court no applicable guideline range from which to depart.” Munn, 595 F.3d at 196 (Duncan, J., dissenting). Further, U.S.S.G. § 1B1.1(

f) does not actually support the Munn court’s position. As Judge Duncan noted: Subsection (

f) of [U.S.S.G. § 1B1.1] does not state, “Apply Part A of

Chapter 4,” but rather, “Determine the defendant’s criminal history category as specified in Part A of

Chapter Four.” USSG § 1B1.1(f). Given the language quoted above, USSG § 4A1.3 does not involve calculating [the defendant’s] criminal history category but instead involves imposing a particular sentence. Thus, subsection (

f) does not in fact require applying USSG § 4A1.3 before [calculating the defendant’s guideline range]. Instead, the relevant instruction does not come until [the last step in the Application Instructions], which provides: “Refer to ... any other policy statements or commentary in the guidelines that might warrant consideration in imposing sen-fence.” 595 F.3d at 196-97 (Duncan, J., dissenting). We therefore reject the Munn court’s reasoning.

In sum, then, a defendant’s applicable guideline range for the purposes of U.S.S.G. § 1B1.10 is the range that applies before the sentencing court grants any discretionary departures. As a result, in this ease, Pembrook’s applicable guideline range was his career-offender range, not the crack-cocaine range to which the district court departed under U.S.S.G. §§ 4A1.3 and 5K2.0. It follows that Amendment 706 to the Sentencing Guidelines did not have the effect of lowering Pembrook’s applicable guideline range, and Pembrook is not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).

The district court therefore did not abuse its discretion when it denied Pembrook’s motion for a reduction of sentence. Ill For the reasons stated above, we AFFIRM the order of the district court. . We have previously held "that a district court may not grant a motion for a reduction in sentence premised upon Amendment 706 if the defendant seeking the reduction was originally sentenced as a career offender," Perdue, 572 F.3d at 292, even if the defendant received a multi-level downward departure pursuant to U.S.S.G. § 5K1.1, see id. at 290; see also United States v. Lockett, 341 Fed.Appx. 129, 131 (6th Cir.2009).

However, the court reached that conclusion without specifically addressing the meaning of "applicable guideline range." . The McGee court addressed this argument and conceded that it was "not without force,” 553 F.3d at 228, but ultimately concluded that the language of U.S.S.G. § IB 1.10(b)(2)(

B) alone was insufficient to establish that "applicable guideline range” referred to the defendant’s pre-departure range, see id. at 228-29. . Invoking the rule of lenity, the dissent suggests that the term "applicable guideline range” is ambiguous and should therefore be interpreted in favor of the defendant. See infra pp. 391-92. However, as Barber v. Thomas recently reaffirmed, the rule of lenity does not automatically apply whenever a statute exhibits any ambiguity — especially not if the language of the statute, though not entirely unambiguous, admits to a natural reading.

See 560 U.S. -, 130 S.Ct. 2499, 2508-09, 2501-11, - L.Ed.2d -, 2010 WL 2243706, at *9, *11 (2010). Rather, "the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress intended.” Id. at *9, 2508-09 (internal quotation marks and citations omitted). That is not the case here. . Notably, this reasoning would not apply to a § 5K2.0 departure, which appears in

Chapter 5 of the Guidelines. . U.S.S.G. § 5K2.0 also incorporates this definition of "downward departure.” See U.S.S.G. § 5K2.0 comment, (n.l). . U.S.S.G. § 5K2.0 similarly authorized a "departure from the applicable guideline range.” U.S.S.G. § 5K2.0 (1997) (emphasis added). In fact, § 5K2.0 still provides that "[l]he sentencing court may depart from the applicable guideline range.” U.S.S.G. § 5K2.0 (2009) (emphasis added). . We also note that the Munn court's approach does not appear to reflect actual practice.

As this case illustrates, a district court will generally grant a § 4A 1.3 (or § 5K2.0) departure only after calculating the defendant’s guideline range (and the PSR will almost always present the defendant's guideline range without any departures). . This reading of the term “applicable guideline range” appears consistent with the purpose of 18 U.S.C. § 3582(c)(2). By its terms, § 3582(c)(2) seeks to allow a sentence reduction only when the Sentencing Commission has determined that a defendant’s original sentencing range was excessive.

See 18 U.S.C. § 3582(c)(2) (authorizing a sentence reduction only when the Sentencing Commission has both lowered a defendant's sentencing range and refrained from issuing a policy statement that is inconsistent with such reduction). In this case, the Sentencing Commission has never determined that the defendant’s original sentencing range was excessive — at all relevant times, Pembrook has qualified as a career offender under the Guidelines, and his career-offender range has remained constant.

It was only the sentencing court that determined that Pembrook's career offender range was excessive, acting under its departure authority, rather than by recalculating or altering the "applicable guideline range.”