USA v. Jerome Syke

Filing

FILED OPINION (ARTHUR L. ALARCON, DIARMUID F. O'SCANNLAIN and BARRY G. SILVERMAN) AFFIRMED. Judge: ALA Authoring,FILED AND ENTERED JUDGMENT. [7905478]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEROME SYKES,
Defendant-Appellant.





No. 10-50399
D.C. No.
2:04-cr-00484GHK-1
OPINION

Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted
September 1, 2011—Pasadena, California
Filed September 26, 2011
Before: Arthur L. Alarcón, Diarmuid F. O’Scannlain, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Alarcón

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COUNSEL
Sean K. Kennedy, Federal Public Defender and Matthew B.
Larsen (argued), Deputy Federal Public Defender, Los Angeles, California for the defendant-appellant.
André Birotte Jr., United States Attorney, Robert E. Dugdale
and David M. Herzog (argued), Assistant United States Attorneys, Los Angeles, California for the plaintiff-appellee.

OPINION
ALARCÓN, Circuit Judge:
Jerome Sykes appeals from the district court’s denial in
part of his motion to reduce his sentence pursuant to 18
U.S.C. § 3582(c)(2). He contends that the district court’s
modification of his sentence to the 120-month mandatory
minimum term pursuant to 21 U.S.C. § 841(b)(1)(A) constituted the application of a new sentence, in violation of Dillon
v. United States, 130 S. Ct. 2683 (2010), and that the sentence
the court ordered violates Apprendi v. New Jersey, 530 U.S.
466 (2000). We affirm because we conclude that the district
court’s application of the 120-month mandatory minimum
term pursuant to § 841(b)(1)(A) did not constitute the imposition of a new sentence.
I
A
On February 24, 2004, Jerome Sykes was indicted in the
United States District Court for the District of Nevada on four
counts of distribution of a controlled substance. In accordance
with a written plea agreement, he pled guilty on May 17,
2004, to Count 1 of the indictment, distribution of at least 5

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grams of a substance containing cocaine base, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B)(iii) (1999); and Count 4, distribution of at least 50 grams of a substance containing
cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(iii) (1999).
Sykes admitted at his plea hearing that he had, in fact, distributed “at least 50 grams of a mixture or substance that contained cocaine base.” The court informed him that it was
required to impose a mandatory minimum sentence of five
years for Count 1 and ten years for Count 4. Sykes stated that
he understood, and confirmed that he still wished to plead
guilty.
At his sentencing hearing on August 23, 2004, the district
court calculated his mandatory1 Sentencing Guidelines range
at 121 to 151 months.2 The district court did not state in that
hearing that he was subject to a mandatory minimum term. It
sentenced him to a low-end sentence of 121 months.3
1

Sykes was sentenced prior to the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), in which the Court held that the
Guidelines are only advisory. Id. at 250-65.
2
Although the district court did not state the section of the Sentencing
Guidelines on which it relied, the parties agreed and stipulated in the plea
agreement that Sykes would be sentenced with a base offense level of 34
pursuant to U.S.S.G. § 2D1.1.
3
The judgment entered by the district court on August 23, 2004, correctly reflects that Sykes was charged in Count 4 with “Distribution of a
Controlled Substance in violation of Title 21 USC 841(a)(1),
(b)(1)(A)(iii).” The amended judgment, entered on August 8, 2010, in
which the sentence was modified pursuant to Sykes’ motion under 18
U.S.C. § 3582(c)(2), however, erroneously provides that Sykes was
charged in Count 4 of the indictment with “Distribution of a Controlled
Substance in Violation of TITLE 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii).”
The reporter’s transcript of the plea proceedings reflects that the district
court correctly informed Sykes that he was charged in Count 4 with a violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) and stated that the mandatory statutory sentence for that crime was ten years. In the August 23,
2004, sentencing proceedings, Sykes’ counsel correctly stated that his client was “facing at least a ten year mandatory minimum sentence.” Reporter’s Transcript at 5. The parties have not challenged the obvious harmless
clerical error in the amended judgment.

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B
On November 1, 2007, the U.S. Sentencing Commission
promulgated Amendment 706 to the Sentencing Guidelines.
U.S.S.G. app. C, amend. 706 (Supp. 2007). Amendment 706
“modifies drug quantity thresholds in the Drug Quantity Table
[of § 2D1.1]” by adjusting those quantities downward two
offense levels, “so as to assign, for crack cocaine offenses,
base offense levels corresponding to guideline ranges that
include the statutory minimum penalties.”4 Id. (emphasis
omitted). Under Amendment 706, “50 grams of cocaine base
are assigned a base offense level of 30 (97 to 121 months at
Criminal History Category I, which includes the ten-year (120
month) statutory minimum for such offenses).” Effective May
3, 2008, the Sentencing Commission revised policy statement
§ 1B1.10 to include Amendment 706 in the list of amendments to the Guidelines which apply retroactively. U.S.S.G.
§ 1B1.10(c) (eff. May 3, 2008).
On February 18, 2009, Sykes filed a motion pursuant to 18
U.S.C. § 3582(c)(2)5 to reduce his sentence based on Amendment 706. In his motion, Sykes argued,
4

Unless the career offender provision of the Sentencing Guidelines
applies, offenders convicted under 21 U.S.C. § 841(b)(1)(A) are sentenced
pursuant to U.S.S.G. § 2D1.1.
5
18 U.S.C. § 3582(c)(2) provides as follows:
(c) Modification of an imposed term of imprisonment.—The
court may not modify a term of imprisonment once it has been
imposed except that—
....
(2) in the case of a defendant who 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), . . . the court may reduce
the term of imprisonment, 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.

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First, the amendment to § 2D1.1 and the Sentencing
Commission’s decision to make it retroactive means
the Court may reduce Mr. Sykes’s sentence and
impose a new sentence under 18 U.S.C.
§ 3582(c)(2). Second, there is no mandatory minimum because the requirements of Apprendi have not
been satisfied. There was no allegation in the indictment, let alone a finding by the court, that the
cocaine base in question was ‘crack,’ as required by
the Ninth Circuit’s recent decision in United States
v. Hollis, 490 F.3d 1149 (9th Cir. 2007),6 see id. at
1156.
In a written order filed on August 6, 2010, the district court
calculated the applicable amended Sentencing Guidelines as
97 to 121 months pursuant to § 2D1.1. It further held that the
mandatory minimum was applicable, and because that mandatory minimum statutory sentence was 120 months, it modified
Sykes’ sentence under the amended version of § 2D1.1 to 120
months. We have jurisdiction over Sykes’ timely appeal pursuant to 28 U.S.C. § 1291.
II
In the § 3582(c)(2) proceeding, Sykes argued that the statutory minimum sentence of 120 months was not “imposed” at
the time of his original sentencing. Instead, the district court
6
Prior to oral argument in this matter, the Supreme Court abrogated
Hollis in DePierre v. United States, 131 S. Ct. 2225 (2011). In DePierre,
the Supreme Court rejected the contention that the term “cocaine base,”
as used in 21 U.S.C. § 841, refers solely to “crack cocaine.” Id. at 223132. The Court noted that “there is no ‘settled meaning’—scientific or
otherwise—of ‘cocaine base’ . . . to apply to § 841(b)(1).” Id. at 2232 n.8.
It concluded that “cocaine base” as used in that section “refers generally
to cocaine in its chemically basic form.” Id. at 2227-28. By this phrase,
it referred to the molecule C17H21NO4, which is found in freebase and
coca paste as well as crack. Id. at 2231. Accordingly, Sykes’ counsel conceded at oral argument that his Hollis argument was moot.

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imposed a sentence of 121 months pursuant to the Sentencing
Guidelines range applicable to a base offense level of 34 and
Criminal History Category I under U.S.S.G. § 2D1.1. Before
this court, Sykes argues that the district court’s imposition of
the mandatory statutory minimum in the § 3582(c)(2) proceeding constituted a resentencing rather than a sentence
modification. Therefore, he maintains that his sentence must
be vacated and this case should be remanded for a sentence
reduction pursuant to the amended Sentencing Guidelines
range, without regard to the mandatory minimum term under
§ 841(b)(1)(A)(iii).
The denial of a motion to modify a sentence pursuant to
§ 3582(c)(2) is reviewed for abuse of discretion. United States
v. Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009). A district
court’s refusal to depart below the statutory minimum sentence is reviewed de novo, “because that decision involve[s]
a question of law and not the exercise of discretion.” United
States v. Wipf, 620 F.3d 1168, 1169 (9th Cir. 2010).
Before the district court, the parties relied on United States
v. Hicks, 472 F.3d 1167 (9th Cir. 2007). In Hicks, we held
that, even where the defendant had been originally sentenced
prior to United States v. Booker, 543 U.S. 220 (2005), Booker
nonetheless applied in sentence modification proceedings
conducted pursuant to § 3582(c)(2). Hicks, 472 F.3d at 117172. We stated, “Booker was not a mere statutory change
which can be set aside to allow us to pretend it is 1993 for the
purpose of modifying Hicks’ sentence; rather, it provides a
constitutional standard which courts may not ignore by treating Guidelines ranges as mandatory in any context.” Id. at
1173. Sykes argued that, like Booker, “Apprendi and its progeny are not a mere statutory change,” and that, under Hicks,
the district court was required to apply Apprendi in modifying
his sentence. The Government asserted that the tension faced
by a district court in determining whether to treat the Guidelines as mandatory in a § 3582(c)(2) proceeding would not
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§ 3582(c)(2) “does not permit, let alone require, a district
court to reconsider non-Guidelines-related claims, constitutional or otherwise . . . .”
[1] Prior to issuance of the district court’s order, the
Supreme Court abrogated Hicks in Dillon v. United States,
130 S. Ct. 2683 (2010). The Court held that, because
§ 3582(c) proceedings are governed by the policy statements
issued by the Sentencing Commission, and because the policy
statement encompassed in U.S.S.G. § 1B1.10 “instructs courts
proceeding under § 3582(c)(2) to substitute the amended
Guidelines range while ‘leav[ing] all other guideline application decisions unaffected[,]’ ” a district court is not required
to apply Booker in § 3582(c)(2) proceedings. Id. at 2688-89,
2692-93 (quoting U.S.S.G. § 1B1.10)). Interpreting the text
and scope of § 3582(c)(2), the Court concluded that “Congress intended to authorize only a limited adjustment to an
otherwise final sentence and not a plenary resentencing proceeding.” Id. at 2691. With respect to the constitutional concerns presented by Dillon, the Court stated, “We are aware of
no constitutional requirement of retroactivity that entitles
defendants sentenced to a term of imprisonment to the benefit
of subsequent Guidelines amendments. Rather, § 3582(c)(2)
represents a congressional act of lenity intended to give prisoners the benefit of later enacted adjustments to the judgments reflected in the Guidelines.” Id. at 2692.
[2] Because § 3582(c)(2) proceedings are limited by the
policy statements of the Sentencing Commission, we have
held that district courts may not vary below the reduced
Guidelines range in modifying the defendant’s sentence.
United States v. Fox, 631 F.3d 1128, 1130-33 (9th Cir. 2011),
petition for cert. filed, ___ U.S.L.W. ___ (U.S. June 10, 2011)
(No. 10-11130); see also Freeman v. United States, 131 S. Ct.
2685, 2692-93 (2011) (“[T]he policy statement seeks to isolate whatever marginal effect the since-rejected Guideline had
on the defendant’s sentence. Working backwards from this
purpose, § 3582(c)(2) modification proceedings should be

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available to permit the district court to revisit a prior sentence
to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the [plea] agreement.”).
[3] Sykes’ sentencing range under the Guidelines in effect
on the date of his sentencing, August 23, 2004, was 121 to
151 months—one month more than the mandatory statutory
minimum sentence of 120 months provided by § 841
(b)(1)(A). The district court lacked the discretion to vary
below the Sentencing Guidelines Range of 121 to 151 months
prior to Booker. See 18 U.S.C. § 3553(b)(1) (requiring court
to impose a sentence within the Sentencing Guidelines range
unless it found that Sentencing Commission had not
accounted for relevant mitigating or aggravating factors),
invalidated by United States v. Booker, 543 U.S. 220 (2005).
Pursuant to Amendment 706, the base offense level applicable to the possession of 50 grams of cocaine base was
reduced from 34 to 30. See U.S.S.G. app. C (supp.), amend.
706. The sentencing range applicable to Criminal History Category I, with a base offense level of 30, was 97 to 121 months
—encompassing the 120-month statutory minimum sentence
under § 841(a)(1), (b)(1)(a)(iii). Amendment 706 became
retroactive on May 3, 2008.
On August 5, 2008, the district court in this matter held that
it was bound to apply the mandatory minimum term of 120
months under 21 U.S.C. § 841(b)(1)(A) to Sykes. Pursuant to
21 U.S.C. § 841(b), “any person who violates subsection (a)
of this section shall be sentenced as follows: (1)(A) . . . such
person shall be sentenced to a term of imprisonment which
may not be less than 10 years or more than life . . . .” 21
U.S.C. § 841(b).
Before accepting a guilty plea, the court, in an open hearing, “must inform the defendant of, and determine that the
defendant understands . . . any mandatory minimum penalty”

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he faces. Fed. R. Crim. P. 11(b)(1)(I). “A failure to ensure
that a defendant understands his range of exposure may violate the requirement that a guilty plea be ‘knowing and voluntary.’ ” United States v. Forrester, 616 F.3d 929, 938 (9th Cir.
2010) (citing Tanner v. McDaniel, 493 F.3d 1135, 1146 (9th
Cir. 2007)).
[4] It is axiomatic that a statutory minimum sentence is mandatory.7 Wipf, 620 F.3d at 1170 (citing United States v.
Haynes, 216 F.3d 789, 799 (9th Cir. 2000)). Specifically,
“[t]he language of § 841(b)(1)(A), which states that a defendant shall be sentenced to a term of at least ten years, is mandatory, not optional.” Haynes, 216 F.3d at 799. Where “no
exception to the statutory minimum applies . . . , the court
lack[s] the authority to refuse to impose the ten-year mandatory minimum.” Id. at 799-800; see also Kimbrough v. United
States, 552 U.S. 85, 102-10 (2007) (holding that a district
court has discretion to depart from guidelines in sentencing
for violation of § 841(b)(1) based on disagreement with
crack/powder cocaine disparity to the extent sentence does not
vary below mandatory minimum).
[5] Pursuant to § 5G1.1(c)(2) of the Guidelines, a sentence
“may be imposed at any point within the applicable guideline
range, provided that the sentence . . . is not less than any statutorily required minimum sentence.” U.S.S.G. § 5G1.1(c)(2).
A retroactive amendment to the Guidelines cannot reduce a
sentence below the statutory minimum term. United States v.
Paulk, 569 F.3d 1094, 1095-96 (9th Cir. 2009); United States
v. Aguilar-Ayala, 120 F.3d 176, 178-79 (9th Cir. 1997).
[6] We held in 2003 that, under Apprendi, drug quantity
must be charged and proved, or admitted, in order to authorize
an increased sentence. United States v. Toliver, 351 F.3d 423,
7

A defendant may escape the mandatory minimum term only if the
safety valve of 18 U.S.C. § 3553(e) or (f) applies. The record in this matter
does not indicate that Sykes qualified for safety valve relief.

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430-31 (9th Cir. 2003), abrogated on other grounds by
Blakely v. Washington, 542 U.S. 296 (2004). It was not until
2007 that we concluded that the mandatory minimum and
maximum terms under 21 U.S.C. § 841(b)(1) apply only
where the government has also pled and proved that the substance at issue was “crack.” Hollis, 490 F.3d at 1154-57.
Apprendi, however, does not apply retroactively. United
States v. Sanchez-Cervantes, 282 F.3d 664, 669-71 (9th Cir.
2002).8
[7] At his plea hearing, Sykes admitted to distributing at
least 50 grams of a mixture or substance containing cocaine
base. After stating in open court that he understood that the
district court could not sentence him below the statutory minimum sentence of ten years, Sykes pled guilty. Sykes has not
asserted that his plea was not knowing or voluntary for lack
of awareness of the mandatory minimum.
The Government argues that his claim is foreclosed by
Paulk, 569 F.3d 1094. In that matter, the defendant pled guilty
to possession with intent to distribute cocaine base, in violation of § 841(b)(1)(A)(iii). Id. at 1095. Pursuant to U.S.S.G.
§ 2D1.1, he faced a Guidelines range of 135 to 168 months.
Id. Because Paulk had a prior conviction, the applicable statutory minimum under § 841(b)(1)(A) was 240 months. Id.; see
§ 841(b)(1)(A) (“If any person commits . . . a violation [of
this section] after a prior conviction for a felony drug offense
has become final, such person shall be sentenced to a term of
imprisonment which may not be less than 20 years and not
more than life imprisonment . . . .”). As the top of Paulk’s
sentencing range under the Guidelines was lower than the
applicable statutory minimum, he was sentenced to the statu8

As previously noted, while this appeal was pending Hollis was abrogated by DePierre, 131 S. Ct. 2225. Sykes has not argued that the government was required to plead and prove that he distributed a substance
containing the molecule C17H21NO4 under DePierre, id. at 2231, and, in
any case, this was not the issue addressed by the district court.

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tory minimum of 240 months. Id. Paulk moved for a reduction
in his sentence pursuant to § 3582(c)(2). He asserted that he
was entitled to a sentence reduction under Amendment 706.
In rejecting this claim, we held that he was “not entitled to a
reduction” in his sentence “because his sentence was not
‘based on a sentencing range that has subsequently been lowered by the Sentencing Commission,’ 18 U.S.C. § 3582(c)(2),
but rather was based on the mandatory statutory minimum
under 21 U.S.C. § 841.” Id. at 95.
[8] As in Paulk, the mandatory nature of the Guidelines at
the time of Sykes’ original sentencing denied the district court
the discretion to sentence him to a term below 121 months.
The minimum mandatory statutory sentence at that time was
120 months. Thus, the district court in the 2004 sentencing
proceeding was bound by the 120-month mandatory statutory
minimum as well as the mandatory 121-month Guidelines
minimum sentence. The district court’s failure to state during
the sentencing proceedings that Sykes was subject to a mandatory minimum sentence of 120 months did not violate the
mandatory statutory minimum term provisions of
§ 841(b)(1)(A). The 120-month mandatory statutory minimum term did not cease to apply upon his request for a sentence modification under § 3582(c)(2) in 2010 because, under
Dillon, the district court could not resentence Sykes. Pursuant
to § 3582(c)(2), the district court was only authorized to
reduce Sykes’ sentence “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission[.]”
Therefore, it could not in that proceeding deviate from the
previously applicable mandatory statutory minimum sentence.
[9] The 120-month mandatory minimum applied by the
district court at the § 3582(c)(2) proceeding was therefore not
a “new” sentence. Because the amended Sentencing Guidelines range under U.S.S.G. § 2D1.1 encompassed the mandatory statutory minimum, the district court had the discretion
to modify the sentence to 120 months.

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[10] We are persuaded that a defendant who, prior to
Booker, received a sentence above the mandatory statutory
minimum term cannot logically argue the sentence imposed
by the court was not subject to the mandatory statutory minimum term. Accordingly, in seeking a § 3582(c)(2) modification of his sentence pursuant to an amendment to the
Sentencing Guidelines, a defendant is subject to that mandatory minimum. See, e.g., Paulk, 569 F.3d at 1095 (where
defendant was originally sentenced to the mandatory minimum term, we affirmed the denial of a sentence reduction
because the amended Guidelines range was lower than the
mandatory minimum). Sykes’ Guidelines range at his original
sentencing, by contrast, exceeded the applicable mandatory
minimum. The result Sykes urges—that, because his original
sentence exceeded the mandatory statutory minimum term,
the application of the statutory minimum in his § 3582(c)(2)
proceeding constitutes a resentencing—“would mean that the
criminal whose conduct was worse would get the better
result.” See United States v. Stockdale, 129 F.3d 1066, 1069
(9th Cir. 1997) (declining to “impute a purpose to Congress
to allow escape from the statutory minimum only to the criminal who grew five times as much marijuana, not the smallerscale grower.”).
[11] Because the mandatory statutory minimum sentence
of 120 months applied to Sykes in his § 3582(c)(2) sentence
modification proceeding, the district court in that proceeding
lacked the discretion to reduce Sykes’s sentence below 120
months. The district court did not err in refusing to further
reduce Sykes’ sentence pursuant to Amendment 706.9
9

Sykes contended before the district court that it was bound by
Apprendi with respect to the imposition of the mandatory statutory minimum sentence because that statutory minimum term had never previously
been imposed. Apprendi, however, does not apply retroactively. SanchezCervantes, 282 F.3d at 669-71. Because we have concluded that Sykes did
not receive a new sentence, Apprendi is inapplicable.

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III
Sykes asserts that the application of the mandatory minimum term under the pre-Fair Sentencing Act (“FSA”) scheme
violated his right to due process. Whether a federal statute
applies retroactively to a sentence imposed prior to the statute’s enactment is a question of law reviewed de novo.
Saravia-Paguada v. Gonzales, 488 F.3d 1122, 1129 n.10 (9th
Cir. 2007).
[12] The district court modified Sykes’ sentence on August
5, 2010, two days after the passage of the FSA. The FSA
increased the quantity of crack necessary to trigger the applicable mandatory minima under § 841(b)(1)(A)(iii) from 50
grams to 280 grams. See FSA § 2(a)(1). The FSA does not
apply to defendants sentenced prior to its effective date of
August 3, 2010. United States v. Baptist, 646 F.3d 1225, 1229
(9th Cir. 2011) (per curiam).
[13] As discussed above, the district court’s application of
the mandatory minimum term under the pre-FSA version of
§ 841(b)(1)(A)(iii) to Sykes did not constitute a resentencing.
Sykes was “sentenced” only once: on August 23, 2004.
Because the FSA is not retroactive to sentences imposed prior
to August 3, 2010, Sykes was not denied due process by the
district court’s failure to apply the FSA in the § 3582(c)(2)
proceedings.
IV
Before this court, Sykes argues for this first time that, as he
received a new sentence in 2010, six years after his original
sentencing, “the long delay in imposing [the new sentence]
violated his speedy-trial and due-process rights.” Opening Br.
19. Sixth Amendment challenges raised for the first time on
appeal are reviewed for plain error. United States v. Ameline,
409 F.3d 1073, 1078 (9th Cir. 2005). “Plain error is ‘(1) error,

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(2) that is plain, and (3) that affects substantial rights.’ ” Id.
(quoting United States v. Cotton, 535 U.S. 625, 631 (2002)).
[14] The sentence Sykes received at the § 3582(c)(2) proceeding was not a new sentence. It was a modification of the
sentence imposed on August 23, 2004. His Sixth Amendment
rights, accordingly, have not been infringed on this ground.
As Sykes has not been subjected to a violation of the Sixth
Amendment due to delayed sentencing, he has not demonstrated error, much less plain error.
V
Sykes additionally argues that his right to be free from double jeopardy has been violated because his new sentence constitutes an implicit conviction for dealing crack, of which his
previous conviction for dealing cocaine base would be a
lesser-included offense. We review a double jeopardy claim
that was not raised before the district court for plain error.
United States v. Davenport, 519 F.3d 940, 943 (9th Cir.
2008). “When a defendant has violated two different criminal
statutes, the double jeopardy prohibition is implicated when
both statutes prohibit the same offense or when one offense
is a lesser included offense of the other.” Davenport, 519 F.3d
at 943.
[15] The district court modified Sykes’ previous sentence
on August 5, 2010. It did not impose a new sentence in ordering in the § 3582(c)(2) proceeding that he serve the mandatory statutory minimum sentence. Because Sykes was
sentenced only once, the district court’s application of the
mandatory minimum at the § 3582(c)(2) proceeding did not
constitute an “implicit conviction.” Accordingly, the Double
Jeopardy Clause of the Fifth Amendment is not implicated.
Conclusion
We have long held that the mandatory statutory minimum
sentence of 120 months set forth in 21 U.S.C. § 841(b)(1)(A)

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“is mandatory, not optional.” Haynes, 216 F.3d at 799.
Although the court at Sykes’ August 23, 2004, sentencing was
required pursuant to § 3553(b)(1) prior to Booker to impose
a term within the Sentencing Guidelines range, it lacked the
authority to depart below the mandatory statutory minimum
sentence.
It is quite clear from the plea entered by Sykes to Count IV
of the indictment that the mandatory provisions of 21 U.S.C.
§ 841(b)(1)(A) are applicable in this matter. Because, under
Dillon, Sykes was entitled only to a modification of his sentence in the § 3582(c)(2) proceeding, the district court lacked
the power to resentence him without regard to the mandatory
statutory minimum.
AFFIRMED.