Submitted Under Third Circuit L.A.R. 34.1(a) September 7,
Appeal from the United States District Court for the Middle
District of Pennsylvania (D.C. No. 1-06-cr-00043-001)
District Judge: Honorable Christopher C. Conner
D. Marchioli Office of United States Attorney Attorney for
A. Krauss Office of Federal Public Defender Attorney for
Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges.
HARDIMAN, CIRCUIT JUDGE
Rivera-Cruz appeals an order of the United States District
Court for the Middle District of Pennsylvania denying his
motion for a sentence reduction. The relevant statute (18
U.S.C. § 3582(c)(2)) authorizes sentence reductions for
defendants initially "sentenced to a term of
imprisonment based on" a United States Sentencing
Guidelines (USSG) range that was later lowered by the United
States Sentencing Commission. In Koons v. United
States, 138 S.Ct. 1783 (2018), the Supreme Court held
that such relief is unavailable to a defendant whose
Guidelines range is "scrapped" in favor of a
statutory mandatory minimum sentence. Id. at
1787-88. We now hold that the same is true where, as here, a
statutory maximum displaces the defendant's
pleaded guilty to distributing and possessing with intent to
manufacture and distribute cocaine hydrochloride, in
violation of 21 U.S.C. § 841(a)(1). The quantity of
drugs involved yielded a base offense level of 32,
see USSG § 2D1.1(c)(4) (2006), and the United
States Probation Office recommended a two-level firearm
enhancement and a two-level obstruction of justice
enhancement. Based on a total offense level of 36 and a
criminal history category of VI, Rivera-Cruz's
presentence report (PSR) calculated his Guidelines range as
324-405 months' imprisonment. Because Rivera-Cruz's
offense carried a statutory maximum of 240 months'
imprisonment, however, the PSR fixed his Guidelines range at
that number. See 21 U.S.C. § 841(b)(1)(C); USSG
§§ 1B1.1(a)(8), 5G1.1(a).
Rivera-Cruz's March 2010 sentencing hearing, the District
Court adopted the PSR's findings and agreed that
"because the statutory maximum penalty is 20 years, the
[G]uideline sentence is restricted to 240 months." App.
122. The District Court then considered the Government's
motion for a downward departure under USSG § 5K1.1 to
account for Rivera-Cruz's substantial assistance to the
Government. The Government requested a sentence of 25 months
below the mandatory maximum, or 215 months' imprisonment.
After discussing the relevant factors in § 5K1.1, the
District Court announced that it would grant the motion. In
accordance with Third Circuit precedent, it calculated the
extent of the departure in terms of "offense levels as
opposed to specific quantities of time." App. 127;
see also United States v. Fumo, 655 F.3d 288, 316-17
(3d Cir. 2011) (explaining that, unlike a variance, a
departure "change[s] the Guidelines range" and thus
requires the sentencing court to "calculate a final
guideline offense level and . . . range"). The Court
settled on a five-level departure to an offense level of 31,
noting that the Government-recommended sentence of 215 months
fell "approximately in the middle" of the
corresponding range of 188-235 months' imprisonment. App.
127. It then sentenced Rivera-Cruz to 188 months'
imprisonment. Rivera-Cruz unsuccessfully appealed his
conviction and sentence. United States v.
Rivera-Cruz, 401 Fed.Appx. 677, 678 (3d Cir. 2010).
years later, the Sentencing Commission adopted Guidelines
Amendment 782, which retroactively reduced Rivera-Cruz's
base offense level by two. See USSG App. C, Amdt.
782 (2014); id. § 1B1.10(d); see also
28 U.S.C. § 994(o). With a total offense level of 34
(consisting of a base offense level of 30 and the
aforementioned enhancements) and the same criminal history
category, Rivera-Cruz's applicable Guidelines range would
have been 262-327 months' imprisonment. Because of the
statutory maximum, however, Rivera-Cruz's Guidelines
range remained fixed at 240 months.
2016, Rivera-Cruz requested a sentence reduction under 18
U.S.C. § 3582(c)(2), citing Amendment 782. In addition
to requiring that a defendant's initial sentence be
"based on" a subsequently lowered range, §
3582(c)(2) requires that a Guidelines amendment cited in
support of a § 3582(c)(2) motion "have the effect
of lowering the defendant's applicable guideline
range." USSG § 1B1.10(a)(2)(B); 18 U.S.C. §
3582(c)(2) (requiring all sentence reductions to be
"consistent with applicable policy statements,"
including USSG § 1B1.10(a)(2)(B)). Rivera-Cruz
acknowledged that the 240-month statutory maximum supplanted
his initial Guidelines range both before and after Amendment
782. He nevertheless argued that, in light of his five-level
downward departure, Amendment 782 effectively reduced his
offense level from 31 to 29, which "ha[d] the effect of
lowering [his] applicable guideline range," §
1B1.10(a)(2)(B), from 188-235 months' imprisonment to
151-188 months. And because the District Court used his
otherwise applicable-i.e., pre-maximum-Guidelines
range of 324-405 months' imprisonment as a baseline for
its downward departure, he argued, his sentence was
"based on" a range lowered by the Sentencing
Commission as required by 18 U.S.C. § 3582(c)(2). Citing
the District Court's original bottom-of-the-range
sentence, Rivera-Cruz requested a 151-month sentence.
District Court denied Rivera-Cruz's motion. It did not
determine whether Rivera-Cruz was initially sentenced
"based on" a later lowered range, instead reasoning
that, because of the statutory maximum, Amendment 782 had no