RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0172p.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. 09-5331
v.
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SHELDON WILLIAMS, aka Ladon Sheldon
Defendant-Appellant. -
Vaughn,
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Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 04-00015-001—Joseph H. McKinley, Jr., District Judge.
Decided and Filed: June 14, 2010
Before: MERRITT, COOK, and KETHLEDGE, Circuit Judges.
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COUNSEL
ON BRIEF: Frank W. Heft, Jr., Laura R. Wyrosdick, OFFICE OF THE FEDERAL
DEFENDER, Louisville, Kentucky, for Appellant. Monica Wheatley, Terry M. Cushing,
ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee.
COOK, J., delivered the opinion of the court, in which KETHLEDGE, J., joined.
MERRITT, J. (pp. 5-8), delivered a separate opinion concurring in the result.
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OPINION
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COOK, Circuit Judge. Defendant Sheldon Williams appeals from the district court’s
order denying his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). Because the
career offender guidelines—not crack cocaine guidelines—controlled his original sentence,
the district court lacked jurisdiction to resentence Williams under § 3582(c)(2).
Accordingly, we affirm the denial of his motion.
1
No. 09-5331 United States v. Williams Page 2
I.
In 2005, Williams pleaded guilty to possession of 5 or more grams of cocaine base
with intent to distribute and to being a felon in possession of a firearm. Applying the Drug
Quantity Table then in effect, Williams’s crack cocaine offense carried a base offense level
of 28. But his extensive criminal history earned him the career offender label pursuant to
USSG § 4B1.1, which yielded an offense level of 37. Finding that Williams accepted
responsibility for his actions, the court adjusted the offense level down to 34. With his
criminal history category pegged at VI, the Sentencing Guidelines produced a range of 262
to 327 months’ imprisonment. After the government filed a § 5K1.1 motion for substantial
assistance, the district court sentenced Williams to serve 140 months on the crack charge,
concurrent with 120 months on the gun offense.
In 2007, the Sentencing Commission promulgated Amendment 706, which reduced
by two the base offense level for most offenses involving crack cocaine, including
Williams’s. Soon thereafter, Amendment 713 added Amendment 706 to the list of
amendments in USSG § 1B1.10(c), giving it retroactive effect.
Williams filed a motion under § 3582(c)(2) seeking a reduced sentence due to the
retroactive amendment, which lowered the base offense level applicable to his crack cocaine
conviction. In its order denying Williams’s resentencing motion, the district court stated:
The Defendant received a “non-guideline” sentence originally and the Court
remains convinced it is an appropriate sentence. Therefore, IT IS HEREBY
ORDERED that no reduction in sentence is allowed and all provisions of the
Judgment and Commitment entered May 16, 2005, shall remain in full force
and effect.
Williams timely appealed.
II.
Although not precisely clear, the order suggests that the district court believed that
it possessed authority to resentence Williams—and therefore had jurisdiction—but declined
to do so in an exercise of its discretion. We review such decisions for abuse of discretion.
United States v. Peveler, 359 F.3d 369, 373 (6th Cir. 2004). But first we must satisfy
ourselves not only of our own jurisdiction, but also of the district court’s. Bender v.
No. 09-5331 United States v. Williams Page 3
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). If the lower federal court lacked
jurisdiction, we possess appellate jurisdiction, “‘not of the merits but merely for the purpose
of correcting the error of the lower court in entertaining the suit.’” Alston v. Advanced
Brands & Importing Co., 494 F.3d 562, 564 (6th Cir. 2007) (quoting Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 95 (1998)).
As a purely legal issue, we review the threshold jurisdictional question de novo.
United States v. Brown, 276 F.3d 211, 214 (6th Cir. 2002); see also United States v. Rhodes,
549 F.3d 833, 837 (10th Cir. 2008) (“The scope of a district court’s authority in a
resentencing proceeding under § 3582(c)(2) is a question of law that we review de novo.”).
“[S]ection 3582 sets forth a statutory basis for limiting the district courts’ jurisdiction” to
modify a previously imposed sentence. United States v. Higgs, 504 F.3d 456, 464 (3d Cir.
2007). “Unless the basis for resentencing falls within one of the specific categories
authorized by section 3582(c), the district court lack[s] jurisdiction to consider [the
defendant’s] request.” United States v. Smartt, 129 F.3d 539, 541 (10th Cir. 1997). Finding
that the district court lacked jurisdiction, we affirm the denial of the motion on that basis.
“A district court may modify a defendant’s sentence only as provided by statute.”
United States v. Johnson, 564 F.3d 419, 421 (6th Cir. 2009). Section 3582(c)(2) “permits
modification of a sentence only where the sentence was ‘based on a sentencing range that
has subsequently been lowered by the Sentencing Commission.’” United States v. Parker,
No. 08-6253, 2009 WL 4927949, at *1 (6th Cir. Dec. 21, 2009) (quoting 18 U.S.C.
§ 3582(c)(2)).
Because the district court originally sentenced him using the career offender
1
guideline, rather than the crack cocaine guideline, Williams would have been subject to
the same sentencing range even if Amendment 706 existed at the time of his original
1
The concurrence takes the view that Williams’s career offender designation increased his total
offense by 10 levels, from 27 to 37, and then reproaches us for “ignor[ing] the facts that the defendant’s
guideline range was reached by consulting a number of different sentencing guidelines and policy
statements.” But the career offender guidelines do not work this way. Career offender status simply
specifies an offense level of 37 for offenses (like Williams’s) carrying a statutory maximum of life (unless
the applicable offense level exceeds 37). So the district court did not determine Williams’s applicable
guidelines range using the (later-amended) crack cocaine guidelines, but by applying the career offender
guidelines, which, after adjustments, produced a range of 262 to 327 months (later reduced in response to
the government’s substantial assistance motion). The amendments to the crack cocaine guidelines did not
affect that range, leaving Williams ineligible for a sentencing reduction.
No. 09-5331 United States v. Williams Page 4
sentence.2 See USSG § 4B1.1 (providing that the career offender base offense level
applies where it is greater than the applicable base offense level under § 2D1.1).
Accordingly, Williams’s sentence is not “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission,” as § 3582(c)(2) requires.
See United States v. Perdue, 572 F.3d 288, 293 (6th Cir. 2009) (because, as a career
offender, Amendment 706 did not affect the defendant’s ultimate sentencing range, “the
district court did not err in declining to grant his motion for a reduction in sentence”);
see also United States v. Leasure, 331 F. App’x 370, 378 (6th Cir. 2009). And since the
question is jurisdictional, United States v. Poole, 550 F.3d 676, 678 (7th Cir. 2008);
United States v. Doe, 564 F.3d 305, 309 (3d Cir. 2009), we conclude that the district
court lacked authority to reach the discretionary resentencing question.
III.
For these reasons, we affirm.
2
Citing United States v. McGee, 553 F.3d 225 (2d Cir. 2009), Williams argues that he was not,
in fact, sentenced pursuant to the career offender guidelines because he received a downward departure
that put his sentencing range where it would have been had the court instead employed the crack cocaine
guidelines. But McGee is distinguishable. There, after calculating the defendant’s offense level using the
career offender guidelines, the court explicitly found that the career offender classification overrepresented
the defendant’s criminal history, and therefore granted a downward departure, choosing to substitute the
crack cocaine guidelines in calculating the range. Here, by contrast, the court granted Williams a
downward departure based on his substantial assistance, not because the career offender guidelines
overstated his criminal history. And the court’s guidelines calculations remained at all times based on the
career offender provisions; the court calculated the crack guidelines only to verify that the career offender
guidelines produced a higher number and therefore controlled, not to determine his applicable sentencing
range. See United States v. Martinez, 572 F.3d 82, 84–85 (2d Cir. 2009) (distinguishing McGee on this
basis); United States v. Richardson, 339 F. App’x 60, 61–62 (2d Cir. 2009) (same).
No. 09-5331 United States v. Williams Page 5
_____________________________________
CONCURRING IN THE RESULT
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MERRITT, Circuit Judge, concurring in the result. 18 U.S.C. § 3582(c)(2)1
provides that a sentencing court may reconsider and lower a sentence when the
defendant’s earlier “sentencing range” has been lowered “if such a reduction is
consistent with applicable policy statements issued by the Sentencing Commission” and
“after considering . . . section 3553(a) . . . .” In this case, the defendant’s sentence rested
on an original “sentencing range” based on (1) the quantity of crack cocaine possessed
by defendant, (2) enhanced by 10 levels for his “career offender” status, and (3) reduced
by 6 levels for substantial assistance. I believe that the district court recognized that it
could reduce the defendant’s original sentence by 2 levels under the new crack cocaine
guidelines, but decided, after reflection and reconsideration, that the original sentence
of 140 months was the most “appropriate” sentence for Williams. I, therefore, concur
in the majority’s decision to affirm the judgment below but disagree with the majority’s
holding that the district court lacked the authority to reduce the defendant’s sentence.
But I do not agree that the statute – which tells the court to consider section 3553(a) in
the process – should be read to eliminate all judicial discretion.
1
18 U.S.C. § 3582(c)(2), Imposition of a Sentence of Imprisonment, states in relevant part:
...
(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), upon motion of the defendant or the Director of the Bureau
of Prisons, or on its own motion, 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.
(Emphasis added.)
No. 09-5331 United States v. Williams Page 6
The defendant’s plea agreement contained a stipulation that he possessed
approximately 23 grams of cocaine base, which at the time of sentencing set the base
offense level at 28 pursuant to U.S.S.G. § 2D1.1(c)(6) (at least 20 but less than 35 grams
of cocaine base). He also received a two-level enhancement for possession of a
dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1). The resulting adjusted offense
level of 30 was reduced by 3 levels for acceptance of responsibility for a total offense
level of 27, and then increased by 10 levels because defendant was found to be a “career
offender” under U.S.S.G. § 4B1.1. With the 3-level reduction for acceptance of
responsibility, his adjusted offense level was 34. Williams has a criminal history
category of VI, which, when coupled with the offense level of 34, resulted in a
sentencing range of 262-327 months. The government made a motion pursuant to
U.S.S.G. § 5K1.1 for a 6-level downward departure in exchange for Williams’
substantial assistance, which resulted in an offense level of 28. An offense level of 28
combined with the criminal history category of VI resulted in a sentencing range of 140-
175 months. The district court sentenced Williams at the bottom of the range to 140
months and 8 years of supervised release.
Williams subsequently requested the retroactive reduction in the base offense
level for crack cocaine offenders and sought modification of his sentence under
18 U.S.C. § 3582(c)(2). When the defendant’s sentence was recalculated pursuant to the
new crack guidelines, the recalculation memorandum reduced the total offense level
from the 28 in the original calculation to 26, but found that the recalculation did not
produce a lower guideline range due to defendant’s status as a career offender.
Memorandum of Recalculation dated May 14, 2008 (Dist. Ct. R. 47). The district court
subsequently denied the motion for modification in a brief order, stating that “Defendant
received a ‘non-guideline’ sentence originally and the Court remains convinced it is an
appropriate sentence.” Order dated Feb. 19, 2009 (Dist. Ct. R. 48).
The majority claims that “the district court sentenced [defendant] using the career
offender guideline, rather than the crack cocaine guideline” and Williams, therefore,
“would have been subject to the same sentencing range even if Amendment 706 existed
No. 09-5331 United States v. Williams Page 7
at the time of his original sentence. . . . Accordingly, Williams’s sentence is not ‘based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission.’” Maj. Op. at 3 (citing to U.S.S.G. § 4B1.1, the career offender guideline).
Citing language from the Third and Tenth Circuits, the majority concludes that the
district court “lacked authority to reach the discretionary resentencing question.” Maj.
Op. at 4. Quoting from a Tenth Circuit opinion, United States v. Smartt, 129 F.3d 539,
541 (10th Cir. 1997), the majority writes “Unless the basis for resentencing falls within
one of the specific categories authorized by section 3582(c), the district court lack[s]
jurisdiction to consider [the defendant’s] request.” Maj. Op. at 3.
The majority ignores the fact that the defendant’s guideline range was reached
by consulting a number of different sentencing guidelines and policy statements, but the
actual sentence originally imposed was decided by the district court, in its discretion,
after looking at the range arrived at through calculation and all the factors listed in
Section 3553(a). The district court undertook this duty and arrived at a sentence that was
within the guideline range. After receiving defendant’s request for modification, the
district court requested a recalculation of the guideline range and then, in its discretion,
decided that the original sentence imposed should stand. The plain language of Section
3582(c) in no way prohibits such a reevaluation and, at the very least, it is ambiguous
as to what the language “based on a sentencing range that has subsequently been
lowered” refers when more than one guideline has come into play in arriving at the
sentencing range.
To the extent that the majority relies on a policy statement or other language
from the guidelines themselves, after United States v. Booker, 543 U.S. 220 (2005), all
guideline provisions, including career offender status, are advisory and a sentence cannot
be “driven by” a particular Guideline provision. Any interpretation of Section 3582(c)
that permits the Sentencing Commission to mandate sentences must be rejected.2
2
The Supreme Court heard oral argument on March 30, 2010, in a case that will decide whether
Booker applies to Section 3582(c)(2) proceedings. Dillon v. United States, 572 F.3d 146 (3d Cir. 2009),
cert. granted, 130 S. Ct. 797 (2009) (09-6338). The question presented in Dillon is: “Whether the Federal
Sentencing Guidelines are binding when a district court imposes a new sentence pursuant to a revised
guideline range under 18 U.S.C. § 3582?”
No. 09-5331 United States v. Williams Page 8
Moreover, any interpretation that reads any consideration of the principles of section
3553(a) entirely out of the process, seems inconsistent with the statutory language.
Whatever may be the law respecting the district court’s authority to resentence
Williams to a shorter sentence in light of the two-level reduction afforded to crack
offenders under the revised guidelines, the district court appears to have assumed that
it had that authority and simply chose not to exercise it in this case because it believed
the 140-month sentence was correct. The district court understood that the language
from Section 3582(c)(2) states that to have his sentence lowered, a defendant’s original
sentence must be “based on a sentencing range that has been subsequently lowered by
the Sentencing Commission.” It recognized that the original sentencing range was a
continuum based on the drug quantity adjusted by an enhancement based on defendant’s
career offender status and then readjusted based on his substantial assistance. After
considering the case, including its possible constitutional authority under Booker and
statutory authority under section 3553(a), the district court exercised its discretion in
favor of the original sentence. I see no error in this approach and would affirm the
judgment on that ground.