NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0508n.06
Case No. 09-1494 FILED
Jul 22, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
GREGORY RHODES, ) DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
_______________________________________ )
BEFORE: BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges.
ALICE M. BATCHELDER, Chief Judge. Gregory Rhodes appeals the district court’s
denial of his motion for a sentence reduction following the Sentencing Commission’s decision to
lower the Guidelines range for crack offenses. Because Rhodes was sentenced as a career offender
and his sentence was not based on the crack guidelines, we AFFIRM.
I.
In 1991, Gregory Rhodes pled guilty to conspiracy to possess with the intent to distribute
cocaine and cocaine base (i.e., “crack”). At his sentencing, Rhodes was determined to be a career
offender under U.S.S.G. § 4B1.1. His Total Offense Level was found to be thirty-five, and his
Criminal History Category was found to be VI, resulting in a Guidelines imprisonment range of
292–365 months. The district court sentenced him to 292 months in prison and the sentence was
upheld on appeal.
No. 09-1494, United States v. Rhodes
In 2007, the Sentencing Guidelines were amended to reduce the base offense levels in
U.S.S.G. § 2D1.1 for most crack offenses. U.S.S.G. App. C, amend. 706 (2007). In 2008, that
amendment was made retroactive. U.S.S.G. App. C, amend. 713 (2008). Shortly thereafter, Rhodes
filed an 18 U.S.C. § 3582(c)(2) motion to reduce his sentence. The court denied the motion due to
Rhodes’ status as a career offender. Rhodes now appeals.
II.
This is one of a long line of cases in which a defendant argues that his sentence was “based
on” the crack guidelines of U.S.S.G. § 2D1.1 when, in fact, the defendant was sentenced as a career
offender under U.S.S.G. § 4B1.1. This Court has repeatedly held that when a defendant is sentenced
as a career offender, his sentence is based on the career offender guidelines alone; it is not based on
the guidelines for the underlying offense. See, e.g., United States v. Payton, 617 F.3d 911, 914 (6th
Cir. 2010); United States v. Bridgewater, 606 F.3d 258, 260-61 (6th Cir. 2010); United States v.
Williams, 607 F.3d 1123, 1125-26 (6th Cir. 2010); United States v. Perdue, 572 F.3d 288, 292-93
(6th Cir. 2009). That holding finds its roots in the language of 18 U.S.C. § 3582(c)(2), which applies
only to a defendant whose sentence was “based on” a subsequently-lowered “sentencing range.” See
Perdue, 572 F.3d at 292. A district court’s mere calculation of the offense level under the crack
guidelines does not render a defendant’s career offender designation inapplicable. Id. at 292-93.
Nor does a district court’s downward departure from the career offender guidelines render a career
offender designation inapplicable. Bridgewater, 606 F.3d at 261-62. When a defendant is sentenced
as a career offender, the career offender guidelines do not simply supplement the crack guidelines;
they supplant them.
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No. 09-1494, United States v. Rhodes
Because Rhodes was sentenced as a career offender, and the career offender sentencing range
has not been lowered, he is ineligible for relief under § 3582(c)(2). Accordingly, we AFFIRM.
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