The Sixth and Tenth Circuit Courts have followed the reasoning in Tolliver. See United States v. Pembrook, 609 F.3d 381, 384-86 (6th Cir. 2010); United States v. Darton, 595 F.3d 1191, 1194-95 (10th Cir. 2010). According to these Circuit Courts, all departures provided for in the Guidelines must be applied after the "applicable guideline range" has been calculated, thus foreclosing the possibility of a departure to the "applicable guideline range."

The Sixth, Eighth and Tenth Circuits have held otherwise, declaring such defendants ineligible for reductions on the ground that their sentences were “based on” the career offender guideline, which has not been amended, despite each sentencing judge having departed from that guideline to the range provided by the offense guideline. See United States v. Pembrook, 609 F.3d 381, 384 (6th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1599, 179 L.Ed.2d 503 (2011); United States v. Darton, 595 F.3d 1191, 1194 (10th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 3444, 177 L.Ed.2d 348 (2010). Pembrook and Darton both rely on United States v. Tolliver, 570 F.3d 1062, 1066 (8th Cir.2009), in which the sentence the defendant sought to reduce had strayed from the career offender range in unusual circumstances akin to a sentence bargain under Fed.R.Crim.P. 11(c)(1)(C), see id. at 1054.

Analyzing the language of §1B1.10, §1B1.1, and its application note, we held that the applicable guideline range is the range that applies before the court grants any discretionary departures. United States v. Pembrook, 609 F.3d 381, 384-87 (6th Cir. 2010). Other circuits shared this position.

Section 3582(c) authorizes sentence modification when "(1) the defendant 'has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . ' and (2) 'such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.'" United States v. Pembrook, 609 F.3d 381, 383 (6th Cir. 2010) (quoting 18 U.S.C. § 3582(c)(2) (emphasis omitted)). Here, the government agrees Smith was sentenced to a term of imprisonment based on a sentencing range that was subsequently lowered by the Sentencing Commission in Amendment 782. Amendment 782 reduced the base offense levels for crack cocaine offenses in U.S.S.G. § 2D1.1(c)'s drug quantity tables.

The district court determined that Johnson was ineligible for a sentence reduction under § 3582(c)(2) and denied his motion. It reasoned that United States v. Pembrook, 609 F.3d 381 (6th Cir. 2010), and the text of 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10 barred a sentence reduction for Johnson, because his applicable guideline range was the career offender range, not the drug quantity range, and the FSA and new guidelines did not alter the career offender range. II.

“A district court may modify a defendant's sentence only as authorized by statute.” United States v. Pembrook, 609 F.3d 381, 383 (6th Cir.2010). The statute authorizing modification based on a retroactive change to the Sentencing Guidelines is 18 U.S.C. § 3582(c)(2).

Taking the above into account, the test for determining a defendant's eligibility for a sentence reduction under § 3582(c)(2) asks whether (1) the sentence was "based on a sentencing range that has been subsequently lowered by the Sentencing Commission[;]" and (2) whether, consistent with the applicable policy statements, the sentencing range lowered by the Sentencing Commission "ha[s] the effect of lowering" the particular defendant's "applicable guideline range." United States v. Pembrook 609 F.3d 381, 383-84 (6th Cir. 2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1599, 179 L.Ed.2d 503 (2011); see United States v. Hameed, 614 F.3d 259, 269 (6th Cir. 2010); United States v. Maxwell, 391 Fed. Appx. 446, 450 (6th Cir. 2010). In considering Wright's motion for reduction of sentence, the district court determined that Wright's 63-month sentence for count one was "not based on a sentencing range that has subsequently been lowered" by the Sentencing Commission because the district court's "starting point" for the sentencing calculation was 32, the offense level for career offenders under U.S.S.G. § 4B1.1(b), and not the base offense level determined by the subsequently amended drug quantity table of U.S.S.G. § 2Dl.l(c).

This provision assumes that "the applicable guideline range" is the range established before a district court decides to depart or vary downward. E.g., United States v. Pembrook, 609 F.3d 381, 384-85 (6th Cir. 2010). Contra, United States v. Flemming, 617 F.3d 252, 266 n. 20 (3d Cir. 2010); United States v. McGee, 553 F.3d 225, 228 (2d Cir. 2009).

However, three other circuits decided that the applicable guideline range for resentencing was the range produced prior to any discretionary departures, reasoning that a district court cannot depart from a range before it is established. United States v. Pembrook, 609 F.3d 381, 384 (6th Cir. 2010) ; United States v. Darton, 595 F.3d 1191, 1197 (10th Cir. 2010) ; United States v. Blackmon, 584 F.3d 1115, 1116–17 (8th Cir. 2009) (per curiam).In response to this circuit split, the Commission promulgated Amendment 759. U.S.S.G., app. C., amend. 759 (2011).

Sloss maintains that the district court abused its discretion in calculating his sentence reduction in two ways. First, the district court erred in factoring a five-month upward departure into the § 3582(c)(2) sentence reduction calculation, which, Sloss asserts, is prohibited under our precedent in United States v. Pembrook, 609 F.3d 381 (6th Cir. 2010). Next, Sloss contends that under Fourth and Eleventh Circuit precedents, various methodologies may be used to determine the extent of the departure, including a percentage reduction and reductions based on a specific number of months. He contends that the district court abused its discretion in basing the § 3582(c)(2) reduction on percentage, rather than the number of months, because in determining the sentence reduction under Rule 35, the Government requested a reduction of 60 months, not a reduction based on percentages.