Under 18 U.S.C. § 3582(c)(2), district courts may not reduce a sentence below the bottom of the amended Guidelines range based on a § 5G1.3(b) adjustment at the original sentencing.

In United States v. Zapatero, No. 18-3829 (2d Cir. June 3, 2020) (Hall, Sullivan, and Bianco), the Circuit held that the plain language of 18 U.S.C. § 3582(c)(2), and its incorporated Guidelines provisions, preclude a district court from reducing a sentence below the amended Guidelines range based on a § 5G1.3(b) adjustment at the original sentencing.

Zapatero was originally sentenced in the District of Vermont to 168 month of imprisonment, below the then-applicable Guidelines range of 210-262 months. The court directed that the sentence should run concurrently with an undischarged 51-month prison term previously imposed in the Southern District of New York. And the court also directed that Zapatero receive “credit” toward his Vermont sentence from the time his detention began in Vermont, even though the credit would also include time spent in custody on the New York case. Zapatero characterized this purported granting of “credit” as a sentence reduction under § 5G1.3(b).

Zapatero later filed a motion to reduce his Vermont sentence under § 3582(c)(2). The district court denied the motion, holding that Zapatero was ineligible because his original 168-month sentence was already the bottom of the newly applicable Guidelines range after applying certain retroactive amendments promulgated by the Sentencing Commission. Zapatero argued on appeal that this was a legal error because the district court had the power to reduce his sentence below the amended Guidelines range to reflect that, at the original sentencing, the court had effectively lowered his sentence under § 5G1.3(b) to award him “credit” for time served in custody (1) after he was detained on the Vermont case but before the Vermont sentence was imposed, and (2) after the Vermont sentence was imposed but before he completed serving his New York sentence.

The Circuit affirmed. It held that § 1B1.10(b)(2) bars a court from reducing a term of imprisonment under § 3582(c) “to a term that is less than the minimum of the amended guideline range,” except where a defendant previously provided “substantial assistance” to the government. Since Zapatero had not provided such assistance, he was ineligible for a reduction below 168 months, the bottom of the amended Guidelines range.