USA v. Marie Tate

Filing

OPINION filed : AFFIRMED, decision not for publication. Eugene E. Siler , Jr., Authoring Circuit Judge; Richard Allen Griffin, Circuit Judge and Jane Branstetter Stranch, Concurring Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0463n.06
Case No. 12-3635

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIE TATE,
Defendant-Appellant.

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Jun 27, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

BEFORE: SILER, GRIFFIN, and STRANCH, Circuit Judges.
SILER, Circuit Judge. In 2005, the district court sentenced Marie Tate to 168 months’
imprisonment for a crack cocaine offense and being a convicted felon in possession of firearms.
In 2010, Congress enacted the Fair Sentencing Act (the “FSA”) and the Sentencing Commission
promulgated amendments to the United States Sentencing Guidelines (the “Guidelines”) to lower
penalties for crack cocaine convictions. Consequently, Tate filed a motion under 18 U.S.C.
§ 3582(c)(2) for a sentence reduction pursuant to the FSA and the amended Guidelines. The
district court denied her motion, reasoning that Tate was ineligible for relief under § 3582(c)(2).
She appeals that decision, and for the reasons that follow, we AFFIRM.

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I.
In 2004, Tate pleaded guilty to two counts of unlawful possession of a firearm in
violation of 18 U.S.C. § 922(g) and one count of possession with intent to distribute more than
50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The plea
agreement attributed 114 grams of crack cocaine to Tate, which generated a base offense level of
32 under USSG § 2D1.1 (the “drug quantity range”), but acknowledged that Tate was subject to
a mandatory minimum sentence of 240 months’ imprisonment.
At the sentencing hearing, the district court granted the government’s motion for a
downward departure based on substantial assistance, enabling the district court to pierce the
mandatory minimum and sentence Tate to less than 240 months’ imprisonment. The district
court accepted the sentencing calculations the government provided, including a base offense
level of 34 and a criminal history category of IV, that represented the lowest point on the
sentencing matrix to encompass her mandatory minimum. It found that after accounting for her
substantial assistance, Tate’s adjusted offense level should be 32 with a criminal history category
IV, which yielded a sentencing range of 168 to 210 months. Ultimately, the district court
sentenced Tate to the low end of the range, 168 months’ imprisonment.
In 2011 and again in 2012, Tate moved for a sentence reduction pursuant to the FSA and
Guidelines amendments, and the district court denied both motions. Tate appeals the denial of
her second § 3582(c)(2) motion and presents a single issue for our resolution: whether the district
court erred in finding Tate ineligible for a sentence reduction.1

1

Tate did not appeal the denial of her first § 3582(c)(2) motion.
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II.
We typically review decisions concerning sentence reductions for abuse of discretion, but
where the district court determined that the defendant is ineligible for a sentence reduction
altogether, we review the decision de novo. United States v. Johnson, 569 F.3d 619, 622-23 (6th
Cir. 2009). Tate contends that the FSA’s new mandatory minimums and the amended
Guidelines’ lowered offense levels each independently operate to qualify her for a sentence
reduction. Her contentions are not supported by law.
III.
Among its several sections, the FSA increased the amount of crack cocaine necessary to
trigger

the

mandatory

minimum

sentences

for

drug

offenders

like

Tate

under

21 U.S.C. § 841(b)(1). Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372 (2010). Tate argues that
the district court should apply the FSA to her 2005 sentence to reduce her 20-year mandatory
minimum to 10 years.

However, the FSA’s “new mandatory minimums do not apply to

defendants sentenced before it took effect,” and neither the Constitution nor § 3582(c)(2)
provides a basis for circumventing this interpretation. United States v. Blewett, 746 F.3d 647,
650 (6th Cir. 2013) (en banc), cert. denied, 134 S. Ct. 1779 (2014). Therefore, Tate’s 240-month
statutory mandatory minimum remains applicable to her sentence.
IV.
In Amendment 750, the Sentencing Commission altered the Guidelines to increase drug
quantities that trigger certain penalties under USSG § 2D1.1, so that had Tate been sentenced
according to the amended Guidelines, the base offense level for her drug conviction involving
114 grams of crack cocaine would have been 28 instead of 32. USSG App’x C, Amend. 750; see
United States v. Bell, 731 F.3d 552, 554 (6th Cir. 2013). Thus, Amendment 750 lowered her

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drug quantity range.

Unlike the FSA’s new mandatory minimums, this amendment is

retroactive. USSG App’x C, Amend. 759; see United States v. Jackson, 678 F.3d 442, 444 (6th
Cir. 2012). Tate argues that § 3582(c)(2) provides her an avenue through which she can take
advantage of the amended Guidelines to obtain a sentence reduction.
District courts engage in a two-step inquiry to determine whether the defendant is entitled
to a sentence reduction under § 3582. First, the defendant’s sentence must have been “based on
a sentencing range that has subsequently been lowered by the Sentencing Commission[.]”
United States v. Hameed, 614 F.3d 259, 262 (6th Cir. 2010) (quoting 18 U.S.C. § 3582(c)(2)).
Second, an amendment to the Sentencing Guidelines must have lowered the defendant’s
“applicable guideline range.” United States v. Pembrook, 609 F.3d 381, 383 (6th Cir. 2010).
Because we have already held that the FSA did not lower Tate’s mandatory minimum but
Amendment 750 did lower her drug quantity range, Tate must show that her sentence was “based
on” the drug quantity range, which was also her “applicable guideline range.”
A.
To determine whether a given sentence was “based on” a particular sentencing range, we
must look 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)).
At sentencing, the district court took “into account the statutory mandatory minimum of 20 years
and [] Tate’s subsequent cooperation,” and determined that her adjusted offense level was 32. It
thus adopted the government’s proposal to start with a base offense level of 34, the lowest
offense level on the sentencing matrix that corresponded to the mandatory minimum at Tate’s
criminal history category, and reduce that by two levels for her substantial assistance. If based
on the drug quantity range, the district court would have calculated a base offense level of 32,

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not 34. Accordingly, the sentence was “based on” the mandatory minimum, not the drug
quantity.
Tate contends that the drug quantity guideline was a relevant part of the district court’s
analytic framework. In the plea agreement, the parties agreed that her base offense level based
on the amount of drugs attributed to her under § 2D1.1 was 32. At sentencing, the only reference
the district court made that could possibly relate to the drug quantity range was that it accepted
the calculations in the plea agreement, but it never mentioned the drug quantity range in
imposing its sentence.
The allusion to the plea agreement alone does not support a conclusion that the district
court based its sentence on the drug quantity range. We held in Hameed that “a district judge’s
mere calculation of the sentencing range under § 2D1.1 does not render a defendant’s sentence
‘based on’ the [drug quantity] range if that range is subsequently trumped by another provision
of the [G]uidelines.” 614 F.3d at 262. Here, the district court did not even calculate the § 2D1.1
range—it simply mentioned the plea agreement that cited the § 2D1.1 drug quantity offense level
and the 240-month mandatory minimum.
In Freeman v. United States, 131 S. Ct. 2685 (2011), Justice Sotomayor, whose opinion
represents the binding decision of the split court, see United States v. Thompson, 714 F.3d 946,
949 (6th Cir. 2013), determined that “[t]o 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, 131 S. Ct. at 2695 (Sotomayor, J.,

concurring). Using this definition, we held in Thompson that the simple fact that the district
court “acknowledged that the sentence contemplated by the plea agreement was ‘sufficient and
not greater than necessary to comport with’” factors necessary to obtain a downward variance,

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was insufficient to infer that the court’s sentence was “based on” the drug quantity range.
Thompson, 714 F.3d at 950. The district court based its sentence on the career offender range,
not the drug quantity range. Id. Here, the district court’s mere reference to the plea agreement is
insufficient to satisfy the “based on” requirement of the § 3582(c)(2) test. Instead, it began its
sentencing calculation at the offense level that corresponded to the mandatory minimum and
departed downward from there.
We addressed an analogous situation in United States v. Williams, 512 F. App’x 594 (6th
Cir. 2013). In that case, the defendant pleaded guilty to three counts of crack distribution and
one count of being a felon in possession of a firearm. Id. at 596. At sentencing, the district court
acknowledged that his base offense level was 32 under the § 2D1.1 drug quantity table, but
declared that the defendant was subject to a 20-year mandatory minimum. Id. It applied an
offense level of 34, which corresponded to the 20-year mandatory minimum, before awarding a
two-level decrease for acceptance of responsibility, granting a two-level downward departure for
substantial assistance, and sentencing the defendant to 135 months’ imprisonment. Id. at 598.
We agreed with the district court’s decision to deny the motion for a sentence reduction, because
the defendant’s sentence was not factually “based on” a sentencing range that had been
subsequently lowered—the § 2D1.1 drug quantity range. Id.
The outcome in Williams is consistent with our prior decision in Johnson. Id. The
defendant in Johnson was convicted of conspiring to distribute between 500 grams and 1.5
kilograms of crack cocaine, which generated a Guidelines sentencing range of 235 to 293 months
under § 2D1.1, but he was also subject to a 240-month mandatory minimum. Johnson, 564 F.3d
at 420. Therefore, his “effective Guidelines range was 240 to 293 months of imprisonment.” Id.
at 421. The district court granted him a downward departure and sentenced him to 108 months’

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imprisonment.

Id.

We found that the district court based its sentence on the mandatory

minimum, reasoning that “if [the defendant] were resentenced today, the amended Guidelines
would still require a sentence of 240 months, and the court would be departing from this same
240-month baseline if again presented with the government’s substantial-assistance motion.” Id.
at 423. At Tate’s resentencing, the district court would likewise still depart from the 240-month
mandatory minimum. Our decisions in Williams and Johnson mandate a conclusion that Tate’s
sentence was not based on the drug quantity range.
Tate argues that we should follow Jackson to reach a contrary conclusion. This case is
readily distinguishable from Jackson, wherein we determined that “[w]hen the original
sentencing judge decides to vary from the career offender guideline range to some other range, it
is fair to say that the sentence imposed is ‘based on’ the adopted range and not the career
offender range.” 678 F.3d at 444. The district court in Jackson departed downward from the
career offender range to the drug quantity range, but here, the district court departed from the
mandatory minimum downward based on Tate’s substantial assistance; it did not depart to
another range. Id. Moreover, Jackson has limited application in § 3582(c)(2) proceedings
because that case involved a unique procedural posture: we reviewed the defendant’s sentence on
direct appeal, “in the immediate wake of the [passage of the FSA] after a district judge explicitly
delayed sentencing in hopes of the Act’s imminent passage.” United States v. Riley, 726 F.3d
756, 761 (6th Cir. 2013). Accordingly, the precedential authority of Jackson is minimal in this
case.
Determining whether a sentence is based on a given Guidelines range “is a fact-driven,
common-sense inquiry about whether a sentence is ‘derived exclusively’ from a particular
sentencing scheme.” United States v. McClain, 691 F.3d 774, 778 (6th Cir. 2012). While “it

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may be ‘sufficiently clear that a district court used [the drug quantity range] to select a final
sentence even though it did not say so,’” id., when evaluating the particular circumstances of
Tate’s sentencing, we are compelled to hold that the district court did not base its sentence on the
drug quantity range. Rather, the district court’s sentence was derived exclusively from the
mandatory minimum, which remains unchanged by the FSA or the amended Guidelines.
Accordingly, Tate’s motion was properly denied.
B.
Were we to find otherwise, Tate would still fail to satisfy the second part of the § 3582
test requiring the Sentencing Commission to lower her “applicable guideline range.”

See

Pembrook, 609 F.3d at 383. In Application Note 1A, the Guidelines define the 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.” USSG § 1B1.10 App. n.1A.
This provision further states that a sentence reduction is not authorized under § 3582(c)(2) if the
relevant amendment “is applicable to the defendant but the amendment does not have the effect
of lowering the defendant’s applicable guideline range because of the operation of another
guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment).”
Id. In these two sentences of Application Note 1A, the Guidelines twice explain that where a
mandatory minimum exceeds an otherwise applicable range, the mandatory minimum becomes
the applicable guideline range.
First, the applicable guideline range is determined by applying USSG § 1B1.1(a), a
provision that contains eight subsections, the last of which reads: “For the particular guideline
range, determine from Parts B through G of Chapter Five the sentencing requirements and

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options related to probation, imprisonment, supervision conditions, fines, and restitution.”
USSG § 1B1.1(a)(8); see United States v. Joiner, 727 F.3d 601, 604-05 (6th Cir. 2013). Part G
of Chapter Five incorporates the mandatory minimum into § 1B1.1(a) and provides that the
mandatory minimum that exceeds an otherwise applicable range is the applicable guideline
range. USSG § 5G1.1(b); see USSG § 1B1.10 App. n.1A; Joiner, 727 F.3d at 605. Second,
Application Note 1A more specifically states that a defendant cannot satisfy the “applicable
guideline range” requirement of the § 3582(c)(2) test where a statutory mandatory minimum
trumps an otherwise applicable guideline range. See USSG § 1B1.10 App. n.1A. The district
court’s piercing of the mandatory minimum does not undermine the applicability of § 1B1.10.
See Joiner, 727 F.3d at 605-06; Williams, 512 F. App’x at 600-01.
Because Tate’s mandatory minimum exceeded her drug quantity range, the mandatory
minimum became her applicable guideline range. The new mandatory minimums in the FSA do
not apply to defendants sentenced before its passage, so Tate’s applicable guideline range has not
been lowered and remains 240 months. See Joiner, 727 F.3d at 609.
We have previously found each of Tate’s arguments in opposition unavailing. Her
position that the applicable guideline range must be distinct from the mandatory minimum
sentence based on the intentional varied usage of the terms “range” and “sentence” in
§§ 1B1.1(a) and 5G1.1 has been rejected. See Joiner, 727 F.3d at 606; Williams, 512 F. App’x at
601. We have also rejected Tate’s contention that USSG § 1B1.10(b)(2)(B), which permits a
court to reduce a sentence to below the applicable guideline range had it also done so in the
original sentencing, would be rendered obsolete under our construction of the term applicable
guideline range. See Joiner, 727 F.3d at 606-07; Williams, 512 F. App’x at 602. Finally, our
recent en banc decision in Blewett undermines Tate’s argument that our interpretation of

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§ 3582(c)(2) violates the notion of fundamental fairness that seeks to avoid the unjust result of
more serious offenders and those not providing substantial assistance being able to take
advantage of newly reduced guidelines, while less serious offenders and those providing
substantial assistance are unable to obtain sentence reductions. As a result, we hold that Tate
also fails to satisfy the applicable guideline range requirement for obtaining a sentence reduction
under § 3582.
AFFIRMED.

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JANE B. STRANCH, concurring in the judgment. I reluctantly concur in the result
reached by the majority opinion. I do so only because I am bound by recent cases denying
sentencing reductions under 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10 to defendants who were
initially subject to a statutory minimum sentence, even though the statutory minimum sentence
was not imposed because the government moved to depart downward for substantial assistance.
See United States v. Taylor, 749 F.3d541 (6th Cir. 2014); United States v. Joiner, 727 F.3d 601
(6th Cir. 2013); United States v. Williams, 512 F. App’x 594 (6th Cir. 2013). The majority
applies Joiner, Williams, and other cases to reach a similar result in Tate’s case. I do not agree
that Tate’s sentence was “based on” a statutory minimum sentence that was not actually imposed
at the original sentencing, nor do I believe that the statutory minimum should be denominated the
“applicable guideline range” so that Tate is denied eligibility for a sentencing reduction under
§ 3583(c)(2) and USSG § 1B1.10(a)(1). Because Tate’s sentence was actually “based on” the
drug guideline, USSG § 2D1.1, which has been subsequently lowered by the Sentencing
Commission, I would hold Tate is eligible for a sentencing reduction.
At the original sentencing, the district court attributed a drug quantity of 114 grams of
crack cocaine to Tate. That drug amount, combined with a statutory sentencing enhancement,
subjected Tate to a statutory minimum sentence of imprisonment of twenty years or 240 months
under 21 U.S.C. § 841(a) & (b)(1)(A). Under the version of USSG § 2D1.1 in effect at the time
of sentencing, Tate had a base offense level of 32, which increased by two levels to 34 due to her
possession of firearms. With no reduction for acceptance of responsibility, Tate’s total offense
level remained at 34. Level 34 and criminal history category IV produced an advisory guideline
range of 210 to 262 months of imprisonment. By operation of USSG § 5G1.1, the statutory

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minimum raised the bottom of Tate’s guideline range so that she faced 240 to 262 months of
imprisonment.
The government did not ask the district court to sentence Tate to 240 months or more in
prison. Instead, the government sought to reward Tate for the substantial assistance she provided
to the government in investigating and prosecuting other defendants. To facilitate that reward,
the government moved for downward departure, essentially under 18 U.S.C. § 3553(e) and
USSG § 5K1.1, to allow the court to sentence Tate below the statutory mandatory minimum,
which was also the bottom of the guideline range. The district court granted the motions and
lowered Tate’s offense level to 32. With a criminal history category of IV, the guideline range
was 168 to 210 months. The court imposed a sentence of 168 months of imprisonment on the
drug conviction and 120 months imprisonment on the firearm convictions, to be served
concurrently.
Section 3553(e) provides that a district court “shall have the authority to impose a
sentence below a level established by statute as a minimum sentence so as to reflect a
defendant’s substantial assistance in the investigation or prosecution of another person who has
committed an offense,” but only “[u]pon motion of the [g]overnment.” Section 5K1.1 similarly
provides that the district court “may depart from the guidelines” based on the defendant’s
substantial assistance, but only “[u]pon motion of the government.” Only the government holds
the power to render a cooperating defendant eligible for a substantial assistance departure from
the statutory minimum sentence or the guideline range. See United States v. Hawkins, 274 F.3d
420, 426 (6th Cir. 2001). Once the government makes a motion for downward departure based
on substantial assistance, the district court has authority to decide whether a departure is

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appropriate and the extent of any such departure. United States v. Rosenbaum, 585 F.3d 259,
264 (6th Cir. 2009).
The government’s conscious choice to make a motion under § 3553(e) and/or § 5K1.1
constitutes a knowing and voluntary waiver of the right to enforce the statutory minimum
sentence or the guideline range. The Sentencing Commission recognized the government’s
ability to waive its rights in the commentary to § 2D1.1:
Where a mandatory (statutory) minimum sentence applies, this mandatory
minimum sentence may be “waived” and a lower sentence imposed (including a
downward departure), as provided in 28 U.S.C. § 994(n), by reason of a
defendant’s “substantial assistance in the investigation or prosecution of another
person who has committed an offense.” See § 5K1.1 (Substantial Assistance to
Authorities).
USSG § 2D1.1, comment. (n.7) (2007). See also USSG § 2D1.1, comment. (n. 23) (2013).
Note the Sentencing Commission’s language: a statutory minimum sentence may be
waived, and Congress provided by statute that only the government has the power to initiate the
waiver by making a motion under § 3553(e). Similarly, the government waives the right to
request a sentence within a guideline range when it makes a motion to depart downward for
substantial assistance under § 5K1.1. The government’s waiver allows the district court to
impose a sentence below the statutory minimum or below the bottom of the guideline range. See
United States v. Doe, 731 F.3d 518, 528 (6th Cir. 2013) (Cole, J., concurring in part and
concurring in the judgment) (noting that a substantial assistance motion “effectively ‘waive[s]’
the mandatory minimum” and “[w]ithout a mandatory minimum at work, nothing prevents
Amendment 750 from having ‘the effect of lowering’ the sentence the [defendant] did receive”).
See also Taylor, 749 F.3d at 552 (Donald, J., dissenting) (observing that the “sole function” of a
§ 3553(e) motion “is to render the normal statutory minimum inoperative”).

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“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’”
United States v. Olano, 507 U.S. 725, 733 (1993). “Waiver, unlike mere forfeiture, extinguishes
[the] ability to raise the claim at all.” United States v. Moore, 93 F. App’x 887, 892 n.6 (6th Cir.
2004).
Where the government affirmatively chooses to move for a downward departure for
substantial assistance under § 3553(e) or § 5K1.1 or both, the government waives—that is, it
intentionally relinquishes or abandons—its right to enforce the statutory minimum sentence or
the guideline range. The government’s waiver extinguishes its ability to make two arguments in
a future sentencing reduction proceeding under § 3582(c)(2).
First, the government’s waiver precludes it from asserting that the defendant’s sentence
was actually “based on” the very same statutory minimum sentence that the government
knowingly and voluntarily waived at the original sentencing. Second, the government’s waiver
prevents it from contending that the “applicable guideline range” referred to in USSG
1B1.10(a)(1) is the statutory minimum sentence and therefore, the defendant is ineligible for a
sentencing reduction because he has not shown that he was sentenced under a guideline range
that “has subsequently been lowered as a result of an amendment to the Guidelines Manual.”
USSG § 1B1.10(a)(1).
We routinely enforce knowing and voluntary waivers of rights made by criminal
defendants. See e.g., United States v. Hockenberry, 730 F.3d 645, 672 (6th Cir. 2013); United
States v. Wendlandt, 714 F.3d 388, 398 (6th Cir. 2013). We should likewise enforce knowing
and voluntary waivers made by the government.

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At Tate’s original sentencing, the government waived the statutory minimum sentence of
240 months. Her sentence was, in fact, “based on” the drug guideline and not on the statutory
minimum sentence. See Freeman v. United States, 131 S. Ct. 2685, 2695 (Sotomayor, J.,
concurring in the judgment) (“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.”) Section 2D1.1 served “as the basis or foundation” for Tate’s sentence.
Because the sentence was “based on” a drug guideline that was subsequently lowered by the
Sentencing Commission in Amendments 750 and 759, I would hold that Tate is eligible for a
sentencing reduction under § 3582(c)(2) and USSG § 1B1.10. The district court should decide
whether to grant Tate a sentencing “reduction comparably less than the amended guideline
range” to reward her for her substantial assistance. USSG § 1B1.10(b)(2)(B).
Accordingly, if I were writing on a clean slate, I would find Tate eligible for a sentencing
reduction and remand the case to the district court for resentencing. Where the government
expressly waives application of a statutory minimum as it did here, we should enforce that
waiver in a subsequent sentencing reduction proceeding under § 3582(c)(2). We should not
allow the government to resurrect a position that it knowingly and voluntarily disclaimed at the
original sentencing.

The majority opinion, and cases cited therein, unfairly absolve the

government of its express waiver and wrongly penalize the defendant by denying eligibility for a
sentencing reduction that unquestionably exists.
I may be bound by our case precedent, but I am not required to agree with it. I concur
only in the judgment.

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