                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 14a0163p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 UNITED STATES OF AMERICA,                                       ┐
                                        Plaintiff-Appellant,     │
                                                                 │
                                                                 │         Nos. 13-5697/5700
            v.                                                   │
                                                                  >
                                                                 │
 JOE EDWARD WEBB,                                                │
                                      Defendant-Appellee.        │
                                                                 ┘
                            Appeal from the United States District Court
                          for the Middle District of Tennessee at Nashville.
            Nos. 3:09-cr-00044-1; 3:10-cr-00015-1—Aleta Arthur Trauger, District Judge.
                                         Argued: January 22, 2014
                                    Decided and Filed: July 28, 2014

                 Before: CLAY and DONALD, Circuit Judges; MAYS, District Judge.*

                                            _________________

                                                 COUNSEL

ARGUED: Harold B. McDonough, Jr., UNITED STATES ATTORNEY’S OFFICE, Nashville,
Tennessee, for Appellant. Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE,
Nashville, Tennessee, for Appellee. ON BRIEF: Harold B. McDonough, Jr., UNITED
STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellant. Michael C. Holley,
FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for Appellee.

         CLAY, J., delivered the opinion of the court, in which MAYS, D.J., joined. DONALD,
J. (pp. 13–16), delivered a separate dissenting opinion.




        *
           The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of Tennessee,
sitting by designation.




                                                       1
Nos. 13-5697/5700                    United States v. Webb                      Page 2

                                         _________________

                                              OPINION
                                         _________________

        CLAY, Circuit Judge. Defendant Joe Edward Webb pleaded guilty to drug offenses in
two different cases. Based on his status as a career offender and a belief that the career offender
guideline range was excessive and improper in this case, the district court sentenced Defendant
to the pre-Fair Sentencing Act (“FSA”), Pub. L. No. 111–220, 124 Stat. 2372 (2010), crack
cocaine mandatory minimum sentence of 240 months imprisonment. Defendant later filed a
motion under 18 U.S.C. § 3582(c)(2) for retroactive application of the new Sentencing
Guidelines in effect after passage of the FSA. The district court found that Defendant was
entitled to seek a reduction of his sentence and subsequently resentenced Defendant to
188 months for each count in the first case and for the second case. The government now
appeals the district court’s resentencing, claiming that the district court lacked the authority to
reduce Defendant’s sentence pursuant to § 3582(c)(2).

        For the reasons that follow, we REVERSE the district court’s order and REMAND with
instructions to reinstate the initial sentence.

                                                  I.

                                          BACKGROUND

A.      Charges and Plea Agreement

        Defendant was charged in two different cases for various drug-related offenses. On
February 25, 2009, Defendant was charged in the first case with seventeen counts, including
charges of conspiracy to distribute and possess with intent to distribute fifty grams or more of a
mixture and substance containing a detectable amount of cocaine base and conspiracy to
distribute and possess with intent to distribute a quantity of a mixture and substance containing a
detectable amount of cocaine, both in violation of 21 U.S.C. §§ 841(a)(1) and 846, as well as
additional counts related to cocaine possession and distribution. On January 14, 2010, Defendant
was charged in a second case with attempt to possess and distribute 500 grams or more of
Nos. 13-5697/5700                  United States v. Webb                       Page 3

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The government filed an information for
both cases, recommending an enhancement for a prior drug conviction. The following day,
Defendant entered guilty pleas in the first case for the first two counts charging him with
conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base
and conspiracy to distribute and possess with intent to distribute cocaine and in the second case
for attempt to possess with intent to distribute 500 grams or more of cocaine, all in violation of
21 U.S.C. §§ 841(a)(1) and 846. Defendant acknowledged in his plea agreement that he would
face a mandatory minimum sentence of twenty years as to the first count and a minimum of ten
years under the information in the second case. At the time, Defendant agreed to provide
substantial assistance to the government, and the government agreed to file a motion for
downward departure in the event that Defendant fulfilled his promise to cooperate. See U.S.S.G.
§ 5K1.1; 18 U.S.C. § 3553(e).

B.      Initial Sentencing Hearing

        The sentencing hearing, which was originally scheduled for April 12, 2010, was
continued a number of times until January 3, 2011. Before the hearing actually occurred,
Congress passed the FSA, which raised the amount of cocaine required for triggering the
mandatory minimum sentence for crack cocaine offenses from 5 grams to 28 grams and from
50 grams to 280 grams. Pub. L. No. 111–220, 124 Stat. 2372. Additionally, Congress directed
the Sentencing Commission to lower the accompanying offense levels for quantities of cocaine
base.

        In preparation for the sentencing hearing, the government filed a notice on December 28,
2010, explaining that Defendant had violated the plea agreement by failing to provide substantial
assistance as originally promised. Therefore, in this notice, the government indicated that it
would not file a motion for a downward departure due to Defendant’s failure to comply with the
terms of the guilty plea.

        The probation office prepared a final presentence report (“PSR”), which considered the
lowered offense level under the FSA. The PSR determined that the total offense level was 36,
the criminal history level was IV, and the resulting sentencing range was 188 to 235 months.
However, based on Defendant’s two previous criminal convictions for robbery and sale of a
Nos. 13-5697/5700                         United States v. Webb                              Page 4

controlled substance, the probation office stated in the final PSR that Defendant qualified as a
career offender as defined in U.S.S.G. § 4B1.1, and as a result, his offense level was 37.1 The
PSR then adjusted the level to 34 for acceptance of responsibility pursuant to U.S.S.G.
§§ 3E1.1(a), (b). Ultimately, the probation office recommended a total offense level of 34 and a
criminal history category of VI, yielding a sentencing range of 262 to 327 months.

        During the sentencing hearing, the district court reviewed the PSR and found that the
guideline range was, in fact, 262 to 327 months, stating as follows:

        I am going to accept the Pre-sentence Report as my findings of fact on all issues
        and on the application of the Guidelines.
        Mr. Webb qualifies under the Advisory Guideline system as a Career Offender,
        therefore his Offense Level is a 34.
        His Criminal History Category is VI.
        The resulting Guideline Range is 262 to 327 months.

(R. 87, 1/3/2011 Partial Tr. of Sentencing Hr’g, at 259–60.)2 Shortly thereafter, the district court
again stated that “[t]he Guideline range here . . . is 262 to 327 months.” (Id. at 261.) However,
the district court also found that the career offender guideline range was excessive and stated the
following:

        But given Mr. Webb’s relatively young age, the fact that one of the offenses that
        made him a Career Offender was committed when he was 14, and that he was at
        the Taft facility, apparently until he was 18 -- so he was off on a bad path before
        then. And then I am sure did nothing but learn more ways to commit crimes
        during the four years that he was incarcerated as a teenager, an impressionable
        teenager. I feel that the minimum-mandatory of 20 years is plenty of time. I see
        really no difference in the effect upon Mr. Webb or on reflecting the seriousness
        of the offense or promoting respect for the law or being a just punishment or
        protecting the public from further crimes by giving him a sentence of 240 months
        as opposed to a sentence [of] 280 months. What difference does it make?
        Twenty years is a long time, and I feel the minimum-mandatory twenty years


        1
          The first of these qualifying offenses occurred when Defendant was fourteen years old and he took part in
a robbery that resulted in serious injuries to a store clerk who was hit over the head with an iron bar or pipe.
Defendant was tried as an adult for that offense and was sentenced to four years in the Taft Youth Development
Center. The second offense was a felony conviction for the sale of less than half of a gram of cocaine. Defendant
did not serve prison time for that conviction.
        2
            Citations to the record are accompanied by reference to Page ID numbers.
Nos. 13-5697/5700                           United States v. Webb                                   Page 5

        concurrent on these offenses is sufficient to meet all of the purposes of
        sentencing. So that is my sentence.

(Id. at 263–64.) As a result, the district court varied the sentence downward to the pre-FSA
mandatory minimum for a crack cocaine offense—from a range of 262 to 327 months to
240 months.3 The district court issued its judgment on January 6, 2011.

C.      Resentencing

        On July 19, 2012, Defendant filed a pro se motion pursuant to § 3582(c)(2) to obtain
retroactive application of the new Sentencing Guidelines for crack cocaine offenses.                                 The
probation office prepared a supplement to the PSR, and the district court directed the government
to file a response to the supplement. The government filed responses in opposition to the
motion, and the district court appointed a federal public defender to represent Defendant in the
matter. Through counsel, Defendant filed supplemental motions for relief under § 3582(c)(2),
and the government once again filed its responses.

        The district court found that Defendant was entitled to seek a reduction on Count One of
the first case because the court did not base Defendant’s sentence on the career offender
guidelines. The court stated as follows:

        As the sentencing hearing transcript makes clear, this court rejected the Career
        Offender guideline range of 262 to 327 months and, instead, sentenced the
        defendant to the statutory minimum mandatory term for the crack cocaine charge
        of 240 months. . . . [T]hat minimum mandatory has been reduced by the Fair
        Sentencing Act to 120 months from 240 months. . . . [A]bsent the Career Offender
        enhancements, it is clear that the sentencing range would be lower.

(R. 92, Mem. and Order, at 356–57 (internal citation omitted).) However, at that time, the court
found that Defendant was not eligible for a sentence reduction for the second count in the first
case or for the second case because those charges did not involve crack cocaine and instead
concerned powder cocaine, sentences to which the FSA did not apply.4 In a separate order, the
district court requested that the probation office recalculate the offense level under the FSA. The

        3
          Although the sentencing hearing occurred after the FSA was enacted on August 3, 2010, the district court
applied the pre-FSA mandatory minimum sentence.
        4
            Contradicting this original order, the district court later reduced Defendant’s sentences on all three counts.
Nos. 13-5697/5700                   United States v. Webb                          Page 6

probation office’s supplemental PSR accounted for the FSA’s new mandatory minimum
sentence for the crack cocaine offense, which was reduced from twenty years to ten years.

       At the resentencing hearing held on April 11, 2013, the district court resentenced
Defendant for both counts in the first case and for the second case. The district court discussed
the rationale for resentencing:

       [A]lthough . . . I asked the probation office to do the calculations for me without
       the career offender enhancement, the range with the career enhancement is the
       proper place to start because Mr. Webb does qualify as a career offender, and so
       the starting point is an offense level of 34 and a criminal history category of VI,
       which leaves us with the same range we had at the first sentencing, which is
       262 to 327 months. In that sentencing, for all the factors I elucidated, and I’ll go
       over some of them now, I found that for this particular defendant, the career
       offender guideline -- first of all, career offender applying for these two offenses
       that pushed him into that category, there were mitigating circumstances, and since
       that time we have had this Sentencing Commission report come out criticizing the
       career offender guideline, and I decided to sentence the defendant to the minimum
       mandatory, ignoring the career offender enhancement to his guideline range for a
       lot of different reasons.

(R. 106, 4/11/2013 Tr. of Resentencing Hr’g, at 459.)          Therefore, the district court based
resentencing on the FSA and the Sentencing Commission’s amendments to the crack cocaine
guidelines. The district court replaced the previous sentences with a 188-month prison term for
each count in the first case and for the second case.           Each of the sentences would run
concurrently and would be followed by a period of supervised release.

       The government objected to the reduced sentences as procedurally and substantively
unreasonable and filed a timely notice of appeal in each of the cases.

                                                 II.

                                          DISCUSSION

A.     Standard of Review

       Generally, “[a] motion for modification made under 18 U.S.C. § 3582(c)(2) is reviewed
for an abuse of discretion.” United States v. Carter, 500 F.3d 486, 490 (6th Cir. 2007). “A
district court abuses its discretion when it relies on clearly erroneous findings of fact, applies the
Nos. 13-5697/5700                   United States v. Webb                         Page 7

law improperly, or uses an erroneous legal standard.” United States v. Pembrook, 609 F.3d 381,
383 (6th Cir. 2010). When applying an abuse of discretion standard, “[t]his Court should reverse
the district court’s decision only if it is ‘firmly convinced that a mistake has been made.’”
United States v. Moore, 582 F.3d 641, 644 (6th Cir. 2009) (quoting McCombs v. Meijer, Inc.,
395 F.3d 346, 358 (6th Cir. 2005)).

       However, “[w]e review the district court’s determination of the defendant’s eligibility for
a sentence reduction de novo.” United States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011). See
also United States v. Johnson, 569 F.3d 619, 623 (6th Cir. 2009) (“Where . . . the district court
does not simply decline to use its authority under § 3582(c)(2) but instead rules that it has no
authority to reduce the defendant’s sentence under the statute, the district court’s conclusion . . .
is reviewed de novo.”). In that situation, “[t]he question becomes whether the district court
lacked authority to modify the defendant’s sentence,” which is a question of law. United States
v. Payton, 617 F.3d 911, 913 (6th Cir. 2010). See also United States v. Baylor, 556 F.3d 672,
673 (8th Cir. 2009) (“Whether the district court properly determined it had the authority to
modify a sentence under 18 U.S.C. § 3582(c)(2) is a legal question reviewed de novo”); United
States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008) (“The scope of a district court’s authority in
a resentencing proceeding under § 3582(c)(2) is a question of law that we review de novo”);
United States v. Caraballo, 552 F.3d 6, 9 (1st Cir. 2008) (“[T]his case requires us to
determine . . . whether the district court had authority to act under section 3582(c)(2). That is
purely a question of statutory interpretation . . . [which] engenders de novo review.”). Therefore,
this Court applies de novo review to determine whether the district court had authority under
§ 3582(c)(2) to reduce Defendant’s sentence.

B.     Sentence Reductions Under 18 U.S.C. § 3582(c)(2)

       As this Court has repeatedly acknowledged, “[g]enerally speaking, once a court has
imposed a sentence, it does not have the authority to change or modify that sentence unless such
authority is expressly granted by statute.” United States v. Curry, 606 F.3d 323, 326 (6th Cir.
2010); see also United States v. Thompson, 714 F.3d 946, 948 (6th Cir. 2013).                Section
3582(c)(2) provides such a statutory exception. Under § 3582(c)(2), a court may reduce a
defendant’s prison sentence if the defendant
Nos. 13-5697/5700                  United States v. Webb                        Page 8

       has been sentenced to a term of imprisonment based on a sentencing range that
       has subsequently been lowered by the Sentencing Commission . . . after
       considering the factors set forth in section 3553(a) to the extent that they are
       applicable, if such a reduction is consistent with applicable policy statements
       issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). Therefore, the statute “does not authorize a sentencing or resentencing
proceeding.” Dillon v. United States, 560 U.S. 817, 825 (2010). Instead, the statute grants
district courts the authority to reduce “an otherwise final sentence in circumstances specified by
the Commission.” Id.

       A district court follows two steps when determining whether a sentence reduction is
appropriate.   First, the district court determines the defendant’s eligibility for a sentence
reduction. Thompson, 714 F.3d at 948. A defendant must meet two conditions to be eligible for
resentencing: “(1) the defendant [must] ha[ve] been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the Sentencing Commission; and
(2) such reduction [must be] consistent with applicable policy statements issued by the
Sentencing Commission.” United States v. Riley, 726 F.3d 756, 758 (6th Cir. 2013) (internal
quotation marks omitted). Next, if the court determines that the defendant is eligible for a
sentence reduction, “[t]he court may then ‘consider whether the authorized reduction is
warranted, either in whole or in part, according to the factors set forth in § 3553(a).’” Thompson,
714 F.3d at 949 (quoting Dillon, 560 U.S. at 826).

C.     Defendant’s Sentence was Not “Based On” a Sentencing Range Subsequently
       Lowered by the Sentencing Commission

       To qualify for a sentence reduction under § 3582(c)(2), Defendant must have been
sentenced under a sentencing range that was subsequently lowered by the Sentencing
Commission.     “In determining whether a sentence was based on a subsequently lowered
guideline range in a plain-meaning sense of the words, we must consider whether the original
sentence was, in fact, based on such a range . . . .” United States v. Hameed, 614 F.3d 259, 264
(6th Cir. 2010) (internal quotation marks omitted).        “To ask whether a particular term of
imprisonment is ‘based on’ a Guidelines sentencing range is to ask whether that range serves as
the basis or foundation for the term of imprisonment.” Freeman v. United States, 131 S. Ct.
2685, 2695 (2011) (Sotomayor, J., concurring); see also Thompson, 714 F.3d at 949 (recognizing
Nos. 13-5697/5700                   United States v. Webb                          Page 9

that Justice Sotomayor’s concurrence is the narrowest, and therefore controlling, opinion in
Freeman). To make this determination, this Court “look[s] to ‘what the district court actually
said and did at the original sentencing.’” Hameed, 614 F.3d at 264 (quoting United States v.
Hargrove, 628 F. Supp. 2d 241, 244 (D. Mass. 2009)).

       Although the parties disagree as to the applicability of Freeman and the appropriate
approach to “based on,” it is irrelevant in this case. Regardless of which standard applies, the
district court did not refer to the crack cocaine guidelines during the sentencing hearing and
therefore did not base the sentence on the crack cocaine sentencing guidelines. The district court
explained in its Memorandum and Order dated February 14, 2013, that “[a]s the sentencing
hearing transcript makes clear, this court rejected the Career Offender guideline range of 262 to
327 months and, instead, sentenced the defendant to the statutory minimum mandatory term for
the crack cocaine charge of 240 months.” (R. 92, Mem. and Order, at 356–57.) What the district
court appears to have done at the sentencing hearing was find that the career offender guidelines
were applicable, disagreed with their application to this defendant, and varied downward to the
pre-FSA crack cocaine mandatory minimum, without making reference to the crack cocaine
guidelines or the disparity between crack and powder cocaine sentencing.

       The career offender guidelines were not subsequently lowered, and therefore,
§ 3582(c)(2) cannot apply to provide a sentence reduction for Defendant.              See Thompson,
714 F.3d at 949–50 (holding that where the district court varied downward from the career
offender guidelines without making reference to the crack/powder disparity or the crack cocaine
sentencing guidelines, the sentence was still “based on” the career offender guidelines, not some
other guidelines that were subsequently reduced by the Sentencing Commission); United States
v. Scott, 523 F. App’x 370, 371 (6th Cir. 2013).

       Even if Defendant’s sentence was improperly “based on” the pre-FSA mandatory
minimum for crack cocaine, this is still insufficient to give the district court authority to grant the
resentencing motion under § 3582(c)(2). Although Defendant was sentenced after the FSA’s
enactment and therefore the new mandatory minimums were already in effect, “the Sixth Circuit
has held that a defendant who is sentenced by reference to a statutory minimum, rather than the
Sentencing Guidelines governing crack cocaine offenses, cannot appeal to the retroactive
Nos. 13-5697/5700                        United States v. Webb                               Page 10

amendments to the crack cocaine guidelines as a basis for relief under § 3582(c)(2).” United
States v. Redding, No. 04–80057, 2013 WL 3745890, at *1 (E.D. Mich. July 16, 2013) (citing
United States v. McPherson, 629 F.3d 609, 611–12 (6th Cir. 2011)). As the en banc Court
explained in United States v. Blewett, § 3582(c)(2) “applies only to sentencing ranges decreased
by the Sentencing Commission in accordance with § 994(o).                        In the Fair Sentencing Act,
Congress, not the Sentencing Commission, lowered these mandatory minimum criminal
penalties.” 746 F.3d 647, 656 (6th Cir. 2013) (internal quotation marks omitted).5 Therefore,
even if Defendant’s sentence was based on the pre-FSA crack cocaine mandatory minimums,
Defendant is ineligible for a sentence reduction under § 3582(c)(2) because his sentence was not
“based on” a sentencing range that was subsequently lowered.

D.      No Amendment to the Guidelines had the Effect of Lowering the “Applicable
        Guideline Range”

        During the resentencing hearing and in its Memorandum and Order, the district court
stated that it based Defendant’s sentence on the crack cocaine guideline range, despite never
making such a statement during the initial sentencing hearing. This Court does not generally
consider a district court’s post-sentencing clarification of a defendant’s sentence when making
the “based on” determination. Instead, this Court considers “what the district court actually said
and did at the original sentencing.” Hameed, 614 F.3d at 264 (internal quotation marks omitted).
However, even assuming that Defendant’s ultimate sentence was “based on” the crack cocaine
guideline range in § 2D1.1, the sentence must also be consistent with applicable policy
statements issued by the Sentencing Commission. See Dillon, 560 U.S. at 819. The policy
statement contained in § 1B1.10(a)(2) states as follows:

        A reduction in the defendant’s term of imprisonment is not consistent with this
        policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if—

                      (A) none of the amendments listed in subsection (c) is
                         applicable to the defendant; or

        5
          See also United States v. Collins, 520 F. App’x 434, 436 (6th Cir. 2013) (“[Section] 3582(c)(2), by its own
terms, applies only to guidelines amendments and not to statutory penalty changes”); United States v. Coats, 530 F.
App’x 553, 555 (6th Cir. 2013) (internal quotation marks omitted) (“Because the Sentencing Commission’s
amendments to the crack cocaine guidelines have no effect on statutory minimum sentences mandated by Congress,
Coats’s sentence was not based on a sentencing range that has subsequently been lowered by the Sentencing
Commission.”).
Nos. 13-5697/5700                       United States v. Webb                              Page 11

                     (B) an amendment listed in subsection (c) does not have
                        the effect of lowering the defendant’s applicable
                        guideline range.

U.S.S.G. § 1B1.10(a)(2). A defendant’s “applicable guideline range” is not necessarily the
sentencing range upon which his sentence was “based” under the first prong of the § 3582(c)(2)
analysis.    Rather, the Guidelines commentary defines “applicable guideline range” as “the
guideline range that corresponds to the offense level and criminal history category determined
pursuant to § 1B1.1(a), which is determined before consideration of any departure provision in
the Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A); see also United States
v. Pembrook, 609 F.3d at 384 (finding that “applicable guideline range” means a “defendant’s
pre-departure guideline range”).6 Therefore, if a district court varies downward from the initially
calculated sentencing range to some other range, the ultimate sentence may be “based on” the
latter range, but the “applicable guideline range” remains the original pre-departure range.

        In this case, Defendant’s “applicable guideline range” was and is the guideline range
pursuant to § 1B1.10(a), “which is determined before consideration of any departure . . . or any
variance.”     U.S.S.G. § 1B1.10 cmt. n.1(A).              Before the district court varied downward,
Defendant’s applicable guideline range was his career offender range of 262 to 327 months. The
district court acknowledged during the resentencing hearing that “the range with the career
enhancement is the proper place to start because [Defendant] does qualify as a career offender.”
(R. 106, 4/11/2013 Tr. of Resentencing Hr’g, at 459 (emphasis added).) Even assuming that
Defendant’s ultimate sentence was “based on” the crack cocaine guideline in § 2D1.1, he
qualified as a career offender and his “applicable guideline range” has not changed.                         The
retroactive amendments to the Sentencing Guidelines changed the drug quantity tables in
§ 2D1.1, but they made no changes to the career offender provision in § 4B1.1. See United
States v.Tillman, 511 F. App’x 519, 521 (6th Cir. 2013) (explaining that “[a] defendant whose

          6
           Defendant asserts that Application Note 1(A) is invalid because it was not enacted pursuant to proper
procedure and notice under the Administrative Procedure Act (“APA”). Defendant is unable to cite any authority
adopting this position, and every circuit to consider the APA argument has upheld the Note’s validity. See, e.g.,
United States v. Johnson, 703 F.3d 464, 467–69 (8th Cir. 2013); United States v. Berberena, 694 F.3d 514, 526–27
(3d Cir. 2012); United States v. Horn, 679 F.3d 397, 406–07 (6th Cir. 2012); United States v. Fox, 631 F.3d 1128,
1132 (9th Cir. 2011). Additionally, this Court rejects Defendant’s argument that the Application Note is
inconsistent with § 3582(c)(2). Rather than conflicting with the statutory language, the Note explains the meaning
of the statute’s terms.
Nos. 13-5697/5700                   United States v. Webb                   Page 12

sentence is based upon the career offender sentencing guideline cannot benefit from Amendment
750 because that amendment did not lower the career offender sentencing guidelines range”);
United States v. Reeves, 717 F.3d 647, 650 (8th Cir. 2013) (“Because Reeves was sentenced
under the career offender provision, Amendments 750 and 759, which modified the drug
quantity provision, are irrelevant.”).

       Defendant’s applicable guideline range is the career offender range of 262 to 327 months.
Because that range has not been lowered by any amendments to the Guidelines, a reduction in
Defendant’s sentence fails to meet the second prong of the eligibility determination under §
3582(c)(2).

                                               III.

                                         CONCLUSION

       The district court erred by finding it had the authority under § 3582(c)(2) to reduce
Defendant’s sentence. The original sentence was not based on a sentencing range that was
subsequently reduced and no amendment to the Guidelines had the effect of lowering
Defendant’s “applicable guideline range.” Therefore, because the district court lacked authority
to grant Defendant’s motion for resentencing, we REVERSE the district court’s order and
REMAND with instructions to reinstate the initial sentence.
Nos. 13-5697/5700                        United States v. Webb                              Page 13

                                            _________________

                                                   DISSENT
                                            _________________

        BERNICE B. DONALD, Circuit Judge, dissenting. In January 2010, Joe Edward Webb
pleaded guilty to one count of attempted possession with intent to distribute and two counts of
conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 846. In his
plea agreement, Webb acknowledged that his entry of a guilty plea on the count charging him
with conspiracy to distribute fifty grams of cocaine base (“crack-cocaine”) would subject him to
a mandatory-minimum sentence of twenty years’ imprisonment. (R. 51, Pg ID # 83-84). The
plea agreement also indicated, however, that Webb had entered into a cooperation agreement
whereby the Government would file a motion for a below-minimum sentence of 180 months
under 18 U.S.C. § 3553(e) in exchange for Webb’s substantial assistance. (R. 20, Pg ID # 95-
96).

        In the months that followed, the Government sought several continuances to delay
Webb’s sentencing hearing (R. 52-67). After having delayed Webb’s sentencing hearing for
almost a year, the Government ultimately notified the district court, in December 2010, that it
would not file a motion for a downward departure in Webb’s case after all, as he had failed to
provide substantial assistance. (R. 68).

        Meanwhile, in the period between Webb’s entry of the guilty plea and his sentencing
hearing, Congress passed the Fair Sentencing Act (“FSA”), which amended the framework for
mandatory-minimum sentences in crack-cocaine cases. Pub. L. No. 111-220, 124 Stat. 2372.1
Under the new statutory framework promulgated by the FSA, Webb’s conviction yielded a lesser
mandatory-minimum sentence of ten years’ imprisonment, rather than the twenty-year minimum
referenced in the plea agreement. (R. 92, Pg ID # 356-57).




        1
          Webb entered his guilty plea on January 15, 2010, and was scheduled to be sentenced on April 12, 2010.
Due to several continuances, however, Webb’s sentencing hearing did not take place until nearly a year after the
entry of his guilty plea, on January 3, 2011. In the interim, Congress passed the FSA, which was signed into law on
August 3, 2010.
Nos. 13-5697/5700                  United States v. Webb                        Page 14

       After the passage of the FSA, a circuit split emerged as to whether defendants like
Webb—whose convictions stemmed from conduct prior to its passage but who were sentenced
after the FSA’s enactment—should benefit from its more lenient mandatory minimums. At the
time of Webb’s sentencing hearing, in January 2011, the prevailing case law in this Circuit,
established by United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010), held that
defendants like Webb should be sentenced in accordance with the mandatory minimums in effect
at the time of the offense, irrespective of the FSA’s enactment.

       The Supreme Court eventually resolved the post-FSA circuit split and abrogated
Carradine in Dorsey v. United States, 132 S. Ct. 2321 (2012), by holding that the more lenient
penalties in the FSA applied to all defendants sentenced after its effective date. Id. at 2326; see
also United States v. Hogg, 723 F.3d 730, 732 (6th Cir. 2013) (explaining that Dorsey abrogated
Carradine by holding that all defendants sentenced after the FSA’s passage were entitled to “the
‘new, more lenient’ statutory penalties . . . for crack cocaine offenses [even if the relevant
offense conduct predated its enactment].”). Because the Supreme Court had yet to decide Dorsey
when Webb was sentenced, however, the district court was bound by Carradine, which required
it to apply the pre-FSA minimum in his case. When the district court declined to apply the
career-offender guidelines recommended in Webb’s PSR, it therefore reverted to the pre-FSA
mandatory-minimum penalty of twenty years’ imprisonment, rather than applying the post-FSA
minimum of ten years, as Dorsey would later require.

       Based on the foregoing, Webb filed a motion for a sentence reduction under 18 U.S.C
§ 3582, arguing that he was entitled to a lower sentence in light of Dorsey. (R. 85). The district
court granted the motion and resentenced Webb to 180 months. The Government appealed the
district court’s order, arguing that it lacked authority to grant Webb’s motion for a sentence
reduction under 18 U.S.C § 3582(c)(2) because Webb’s previous sentence was not based on a
guidelines range that had “subsequently been lowered by the Sentencing Commission.”

       As the majority correctly observes, the district court’s determination as to whether Webb
was eligible for a sentence reduction under 18 U.S.C § 3582 is a question of law that this Court
reviews de novo. I agree with the majority’s overview of the relevant inquiry in determining
whether any particular defendant is entitled to resentencing under that statute and I agree with its
Nos. 13-5697/5700                  United States v. Webb                       Page 15

conclusion that Webb is not entitled to relief thereunder, because his sentence was not based on a
guidelines range that has since been amended.        I disagree with the majority’s conclusion,
however, that Webb’s sentence was based on the career-offender guidelines. The district court
expressly declined to adopt the PSR’s recommendation that Webb be sentenced in accordance
with the career-offender guidelines because Webb was only fourteen when he committed one of
the offenses that triggered his career-offender status.            Having rejected the PSR’s
recommendation under the career-offender guidelines, the district court then sentenced Webb to
the pre-FSA mandatory-minimum.

       Because Webb was sentenced to a pre-FSA mandatory minimum after the statute’s
enactment, he is clearly entitled to a sentence reduction under Dorsey. His motion for a sentence
reduction under 18 U.S.C § 3582, however, is not the proper procedural vehicle for seeking that
relief, since that statute only applies to individuals who were sentenced under the guidelines. See
United States v. Passmore, 503 F. App'x 340, 342 (6th Cir. 2012) (explaining that 18 U.S.C
§ 3582 does not apply to individuals who were sentenced in accordance with statutory
minimums), cert. denied, 133 S. Ct. 968 (2013). Where a defendant’s claim of entitlement to a
reduced sentence is based on a new retroactive decision of the Supreme Court, the proper
procedural vehicle for seeking a sentence reduction is a motion under 28 U.S.C. § 2255. See id.
Therefore, because Webb’s eligibility for a lower sentence is based on the Supreme Court’s
decision in Dorsey, 28 U.S.C. § 2255 is the proper avenue for obtaining the relief he seeks.

       In other cases where inmates have filed a motion under 18 U.S.C. § 3582 that should
have been filed under 28 U.S.C. § 2255, district courts have construed such motions liberally as
§ 2255 motions. See Hughlett v. United States, No. 1:13 Civ. 204, 1:10 Cr. 84 (E.D. Tenn. Oct.
22, 2013) (denying relief pursuant to Dorsey under § 3582(c)(2) but granting motion under
§ 2255); accord United States v. Little, No. 10-20170 (E.D. Mich. Oct. 29, 2013); see also
United States v. Bennett, No. 3:10 Cr. 84 (W.D.N.C. Jan. 16, 2013). Due to the potential
consequences of treating any motion as a § 2255 motion (because it may foreclose the
availability of relief on other issues under § 2255 in the future), the district court is in a much
better position to determine whether taking a liberal view of Webb’s § 3582 motion is
appropriate in this case. Accordingly, I would REMAND to the district court so that it may
Nos. 13-5697/5700                  United States v. Webb                    Page 16

determine whether Webb’s motion for a sentence reduction should be construed as a motion
under § 2255. I would further instruct the district court to permit Webb to re-file his current
motion under § 2255, based on his eligibility for relief under Dorsey.
