NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0250n.06
No. 10-3199 FILED
Apr 20, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
DEON RAY, ) THE NORTHERN DISTRICT OF
) OHIO
Defendant-Appellant. )
)
)
Before: MARTIN, SUHRHEINRICH, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. In May 2007, Deon Ray pled guilty to distributing or
possessing with intent to distribute cocaine and crack cocaine, unlawfully transporting firearms, and
being a felon in possession of a firearm. See 18 U.S.C. § 841(a)(1), (b)(1)(C); 18 U.S.C. § 922(g)(1).
The district court sentenced Ray under U.S. Sentencing Guidelines § 2D1.1. The court applied a
two-level upward departure for firearm possession, a three-level downward departure for acceptance
of responsibility, and a two-level downward departure for substantial assistance. This yielded a
recommended guidelines range of 92 to 115 months. The court sentenced Ray to 115 months’
imprisonment.
The Sentencing Commission thereafter retroactively amended § 2D1.1, reducing the base
offense levels for crack-cocaine offenses. Ray moved to reduce his sentence under 18 U.S.C.
No. 10-3199
United States v. Ray
§ 3582(c)(2), which provides that district court judges “may reduce the term of imprisonment” for
defendants who were sentenced “based on a sentencing range that has subsequently been lowered
by the Sentencing Commission . . . if such a reduction is consistent with applicable policy
statements.” The government responded by arguing—despite clear evidence to the contrary—that
Ray had been sentenced as a career offender under U.S.S.G. § 4B1.1 and was thus ineligible for
sentence modification. See United States v. Perdue, 572 F.3d 288, 292-93 (6th Cir. 2009). The
district court issued a form order denying Ray’s § 3582 motion with almost no explanation.
On appeal, Ray’s appointed counsel inexplicably concedes that Ray was sentenced as a career
offender. He argues that Ray nonetheless qualifies for a sentence reduction because United States
v. Booker, 543 U.S. 220 (2005), rendered all the sentencing guidelines advisory. Not only does this
argument fail under Perdue and Dillon v. United States, 130 S. Ct. 2683 (2010), but it is contradicted
by the record: the district court, the government, and defense counsel all agreed at the sentencing
hearing that Ray did not qualify as a career offender.
District courts have discretion to grant or deny § 3582 motions after conducting a two-step
inquiry. First, the court must determine the defendant’s eligibility for a sentence reduction and the
extent of the reduction authorized by U.S.S.G. § 1B1.10. Dillon, 130 S. Ct. at 2691. Second, if the
defendant is eligible, the court must consider the factors listed in 18 U.S.C. § 3553(a) and determine
whether a reduction “is warranted in whole or in part under the particular circumstances of the case.”
See id. at 2692. We conduct de novo review if the district court finds the defendant ineligible under
step one of the inquiry. See United States v. Payton, 617 F.3d 911, 913 (6th Cir. 2010). Otherwise,
we review the district court’s denial of a § 3582 motion for an abuse of discretion. See id. at 912.
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No. 10-3199
United States v. Ray
Here, we have no information on the district court’s reasons for denying Ray’s motion. In
its form order, the court merely checked the “denied” box, filled in Ray’s original sentencing
information, and stated that the “order is subject to [the] prohibition contained in USSG Sec.
1B1.10(b)(2)(C)”—a provision that does not seem relevant here. It is thus unclear whether the
district court found Ray ineligible for a reduction or whether it denied the motion as an exercise of
discretion after considering § 3553(a) factors. We therefore reverse the district court’s order and
remand for reconsideration and clarification.
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