RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0168p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-5303
v.
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Defendant-Appellant. -
KENNETH BRIDGEWATER,
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Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 05-00002-001—Joseph H. McKinley, Jr., District Judge.
Submitted: December 2, 2009
Decided and Filed: June 9, 2010
*
Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.
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COUNSEL
ON BRIEF: Frank W. Heft, Jr., Jamie L. Haworth, OFFICE OF THE FEDERAL
DEFENDER, Louisville, Kentucky, for Appellant. Terry M. Cushing, Monica
Wheatley, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for
Appellee.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Kenneth
Bridgewater appeals the district court’s denial of his motion for a sentence modification
pursuant to 18 U.S.C. § 3582(c)(2). For the following reasons, we affirm the district
court’s decision.
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
No. 09-5303 United States v. Bridgewater Page 2
I.
The facts of this case are undisputed. As recounted in the Presentence
Investigation Report (“PSR”), Bridgewater was indicted on eight counts of possession
with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1).
Because Bridgewater had prior drug trafficking convictions, the United States filed a
notice pursuant to 21 U.S.C. § 851 to enhance his sentence. Bridgewater thereafter pled
guilty on all counts with no plea agreement.
Based on his prior drug trafficking convictions, Bridgewater qualified as a career
offender under U.S.S.G. § 4B1.1. Because the government filed a § 851 enhancement,
which increased the maximum offense level for two counts to life imprisonment, and
after adjustments for acceptance of responsibility, Bridgewater’s total offense level was
calculated as 34. This total offense level, coupled with a criminal history category of VI,
resulted in a guideline range of 262 to 327 months.
At sentencing, the district court considered the circumstances of his case,
including Bridgewater’s criminal history and the government’s 21 U.S.C. § 851
enhancement, and expressed concern that the government’s exercise of enhancing
discretion “causes as much disparity among defendants as judge sentencing.” The court,
however, concluded that it “need[ed] to sentence [Bridgewater] to something more than
what the regular [crack cocaine] guideline [was].” The district court therefore chose to
vary from the enhanced career offender guideline, selecting a total offense level of 31
with a criminal history category of VI. This offense level, which corresponded to the
unenhanced career offender guideline, see U.S.S.G. § 4B1.1(b) (2004), resulted in a
sentencing range of 188 to 235 months. The district court then sentenced Bridgewater
to 188 months imprisonment.
On March 10, 2008, Bridgewater filed a pro se motion for sentence modification
pursuant to 18 U.S.C. § 3582(c), relying upon Amendments 706 and 711 to U.S.S.G.
§ 2D1.1, which reduced the base offense level for most cocaine offenses by two levels
and modified the Guidelines drug conversion chart. U.S.S.G. app. C, amd. 706 and 711
(2008). The district court denied the motion without prejudice. On June 16, 2008, the
No. 09-5303 United States v. Bridgewater Page 3
district court appointed counsel for Bridgewater and ordered the Probation Office to file
a Memorandum of Recalculation (“MOR”). The MOR determined that Bridgewater’s
status as a career offender disqualified him from any reduction in sentence.
In a written order, the district court subsequently declined to reduce
Bridgewater’s sentence. The court concluded that because “[t]he Defendant received a
‘non-guideline’ sentence originally [and] [c]onsidering the factors of 18 U.S.C.
§ 3553(a), [it] remained convinced that [the original sentence was] an appropriate
sentence.”
II.
We review the denial of a motion for a sentence modification under 18 U.S.C.
§ 3582(c)(2) for abuse of discretion. See United States v. Carter, 500 F.3d 486, 490 (6th
Cir. 2007). “A district court abuses its discretion when it applies the incorrect legal
standard, misapplies the correct legal standard, or relies upon clearly erroneous findings
of fact.” United States v. Pugh, 405 F.3d 390, 397 (6th Cir. 2005). We may reverse the
district court’s decision only if we are “firmly convinced that a mistake has been made.”
United States v. Moore, 582 F.3d 641, 644 (6th Cir. 2009) (quoting McCombs v. Meijer,
Inc., 395 F.3d 346, 358 (6th Cir. 2005)). “When reviewing the district court’s
application of the Sentencing Guidelines, we review the district court’s factual findings
for clear error and mixed questions of law and fact de novo.” United States v. May, 568
F.3d 597, 604 (6th Cir. 2009). If the district court concludes that it lacks the authority
to reduce a defendant’s sentence, its determination of the defendant’s ineligibility for a
sentence reduction is a question of law that we review de novo. See United States v.
Johnson, 569 F.3d 619, 623 (6th Cir. 2009).
In general, a court may not change or modify a sentence unless such authority is
expressly granted by statute. See United States v. Houston, 529 F.3d 743, 748 (6th Cir.
2008) (citation omitted). One such authorized exception arises “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,” in which case
a court “may” reduce a term of imprisonment “after considering the factors set forth in
No. 09-5303 United States v. Bridgewater Page 4
[18 U.S.C. § 3553(a)] to the extent that they are applicable, if such reduction is
consistent with applicable policy statements issued by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2). Amendment 706 to the Sentencing Guidelines, made effective
November 1, 2007, reduced the base offense level for most crack offenses by two levels
and is one of the retroactive amendments listed in U.S.S.G. § 1B1.10 that may be
considered for a sentence reduction under 18 U.S.C. § 3582(c)(2). United States v.
Poole, 538 F.3d 644, 645 (6th Cir. 2008).
In United States v. Perdue, however, we held that “Amendment 706 has no effect
on the ultimate sentencing range imposed . . . under the career-offender Guideline.” 572
F.3d 288, 293 (6th Cir. 2009). Thus, “a defendant convicted of crack-related charges but
sentenced as a career offender under U.S.S.G. § 4B1.1 is not eligible for a reduction
based on Amendment 706.” United States v. Curry, 2010 WL 550663, at *2 (6th Cir.
Feb. 17, 2010) (citing Perdue, 572 F.3d at 292–93). This is true even where a defendant
was granted a downward departure from the career offender Guideline. Perdue, 572
F.3d at 290 (concluding that Amendment 706 had no effect on the sentencing range
where there was a downward departure for substantial assistance under U.S.S.G.
§ 5K1.1).
While Bridgewater’s characterization of the district court’s selection of a
sentence below the applicable Guideline range as a “departure” undergirds much of his
argument on appeal, the fact that the district court actually made use of a variance is of
no consequence under the circumstances.1 As this court noted in United States v. Curry,
The distinction between a sentence in which the district court applies a
variance from the recommended guideline range based upon Booker and
the § 3553(a) factors but the sentence is nonetheless “based on” the
Guidelines, and one where the sentence is not “based on” the Guidelines
at all may indeed be subtle. The district courts, however, are fully
capable of making that distinction and determining whether a further
1
Because the government did not move for a downward departure under U.S.S.G. § 5K1.1, the
district court’s decision to impose a sentence outside the Guidelines range was a “variance” or a “non-
Guideline departure” rather than a true “Guideline departure.” United States v. Jordan, 544 F.3d 656, 671
n.12 (6th Cir. 2008); see also United States v. Grams, 566 F.3d 683, 686 (6th Cir. 2009) (“A ‘variance’
refers to the selection of a sentence outside of the advisory Guidelines range based upon the district court’s
weighing of one or more of the sentencing factors of § 3553(a).”).
No. 09-5303 United States v. Bridgewater Page 5
reduction is appropriate, regardless of whether the original sentence
incorporated a variance or departure from the Guidelines.
2010 WL 455364, at *5 (6th Cir. Feb. 10, 2010). The rationale underlying Perdue,
however, applies with equal force where the district court’s downward variance uses the
career offender Guideline as the benchmark from which the variance was applied.
Here, the district court, upon considering the § 3553(a) factors, concluded that
the enhanced career offender guideline range based on the statutory maximum of life
was too high based on concerns that the government’s enhancing discretion caused
disparity in sentencing. The district court then determined that employing the total
offense level of 31 best reflected the policy concerns found in § 3553(a). This offense
level corresponded to the unenhanced career offender base level less the applicable three
point reductions for Bridgewater’s acceptance of responsibility. See U.S.S.G. § 4B1.1(b)
(2004). The court therefore varied downward from one career offender level to another,
and the career offender Guideline, rather than the crack base offense level, served as the
benchmark for sentencing. (See Statement of Reasons at 3 (“Had [the enhancement]
motion not been filed, the defendant would have faced an advisory guideline range of
188 to 235 months (an offense level of 31 with a criminal history of VI”).) Indeed, the
district court specifically stated that it felt it needed to select a sentencing range that was
higher than that afforded by the applicable crack base offense level. Because the district
court selected a sentence based on the career-offender Guideline, and “Amendment 706
has no effect on the ultimate sentencing range imposed . . . under the career-offender
Guideline,” Perdue, 572 F.3d at 293, Bridgewater is not eligible for a reduction based
on Amendment 706.
In any event, the decision to grant a sentence reduction is discretionary, and
“[s]ection 3582 does not create a right to a reduced sentence.” Curry, 2010 WL 455364,
at *6 (noting that the language of § 3582(c)(2) is permissive and not mandatory). In
view of the facts concerning Bridgewater’s offense conduct, the district court decided
that Bridgewater’s initial sentence was appropriate in consideration of all the § 3553(a)
factors. (DE 49.) Thus, any purported error identified by Bridgewater is harmless and
No. 09-5303 United States v. Bridgewater Page 6
is not grounds for reversing the district court’s decision. Moore, 582 F.3d at 645; see
also United States v. Vandeberg, 201 F.3d 805, 812 (6th Cir. 2000) (holding that remand
is inappropriate if “the appellate court is convinced that the trial court would have
imposed the same sentence absent [its] misinterpretation of the guideline” (citation and
internal quotation marks omitted)).
III.
For the foregoing reasons, we affirm the district court’s decision.