FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50256
Plaintiff-Appellee,
v. D.C. No.
5:00-cr-00016-RT-1
GEARY WAYNE WATERS,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, District Judge, Presiding
Argued and Submitted
May 4, 2011—Pasadena, California
Filed August 19, 2011
Before: Harry Pregerson, Raymond C. Fisher and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Fisher
11147
UNITED STATES v. WATERS 11151
COUNSEL
Sean K. Kennedy, Federal Public Defender and Carlton F.
Gunn (argued), Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellant.
André Birotte Jr., United States Attorney, Robert E. Dugdale
and Rosalind Wang (argued), Assistant U.S. Attorneys, Los
Angeles, California, for the plaintiff-appellee.
OPINION
FISHER, Circuit Judge:
We hold that, when determining a sentencing range under
U.S. Sentencing Guidelines Manual (U.S.S.G.) § 1B1.10(b),
a district court may apply the offense level dictated by the
career offender guideline, U.S.S.G. § 4B1.1, even if the dis-
trict court did not apply the § 4B1.1 offense level at the defen-
dant’s original sentencing, so long as the court determined at
the original sentencing that the defendant was a career
offender. Applying that rule here, we affirm the district
court’s dismissal of the defendant’s motion for a reduction of
sentence.
BACKGROUND
2002 Sentencing
Geary Waters was convicted of one count of possession
with intent to distribute cocaine base (i.e., crack cocaine) and
11152 UNITED STATES v. WATERS
one count of possession with intent to distribute marijuana, in
violation of 21 U.S.C. § 841(a)(1). At his original sentencing
in 2002, the district court calculated Waters’ sentencing range
as follows.
The court first determined Waters’ offense level and crimi-
nal history category without consideration of the career
offender guideline, U.S.S.G. § 4B1.1. Using the drug quantity
table in U.S.S.G. § 2D1.1(c) and the enhancement for use of
a minor under U.S.S.G. § 3B1.4, the court calculated a total
offense level of 38. This offense level was based on a base
offense level of 36 under the drug quantity table and a two-
level enhancement for use of a minor under § 3B1.4. The
court also assessed a criminal history category of V.
The court then considered the effect of the career offender
provision, § 4B1.1. The court determined that Waters quali-
fied as a career offender. As a result, the career offender
guideline automatically raised Waters’ criminal history cate-
gory to VI. See U.S.S.G. § 4B1.1(b) (“A career offender’s
criminal history category in every case under this subsection
shall be Category VI.”). The career offender guideline did not
change Waters’ total offense level, however. Although
§ 4B1.1(b) specified an offense level of 37, see id., that
offense level did not apply because it was not greater than the
offense level of 38 under §§ 2D1.1 and 3B1.4. See id. (“[I]f
the offense level for a career offender from the table in this
subsection is greater than the offense level otherwise applica-
ble, the offense level from the table in this subsection shall
apply.” (emphasis added)).
Consequently, after taking the career offender guideline
into account, Waters’ total offense level was 38 (from
§§ 2D1.1(c) and 3B1.4) and his criminal history category was
VI (from § 4B1.1(b)). This resulted in a sentencing range of
360 months to life. See Sentencing Table, U.S.S.G. ch. 5, pt.
A. The court imposed a sentence at the low end of that range.
UNITED STATES v. WATERS 11153
Amendment 706
In 2007, the United States Sentencing Commission adopted
Amendment 706, which “addressed the sentencing disparity
between offenses involving crack cocaine and powder cocaine
by reducing the base offense level for crack cocaine offenses
by two levels under U.S.S.G. § 2D1.1.” United States v.
Tupuola, 587 F.3d 1025, 1027 (9th Cir. 2009). The Commis-
sion made Amendment 706 retroactive in 2008. See id.
In light of this retroactive amendment, Waters filed a
motion in federal district court to have his sentence reduced
pursuant to 18 U.S.C. § 3582(c)(2), which permits a court to
modify a sentence when certain requirements are satisfied.
The district court dismissed the motion for lack of jurisdic-
tion. Waters timely appealed. Reviewing de novo, see id., we
affirm.
DISCUSSION
I.
[1] A district court generally “may not modify a term of
imprisonment once it has been imposed.” 18 U.S.C.
§ 3582(c). An exception to this general prohibition is pro-
vided by 18 U.S.C. § 3582(c)(2), which states:
[I]n 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 . . . the court
may reduce the term of imprisonment, after consid-
ering 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.
11154 UNITED STATES v. WATERS
18 U.S.C. § 3582(c)(2). This provision allows a modification
of a term of imprisonment if two requirements are satisfied:
“(1) the sentence is ‘based on a sentencing range that has sub-
sequently been lowered by the Sentencing Commission’; and
(2) ‘such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.’ ” United
States v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009) (quoting
18 U.S.C. § 3582(c)(2)).
Waters argues that his sentence was “based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission” because his sentence was based on an offense
level of 36 under the drug quantity table that, under Amend-
ment 706, has been lowered to 34. He contends that, had he
been sentenced under the current regime: his base offense
level, under § 2D1.1(c), would have been 34; his total offense
level, after application of the two-level enhancement under
§ 3B1.4, would have been 36; and his criminal history cate-
gory, from § 4B1.1(b), would have remained VI — resulting
in a sentencing range of 324 to 405 months. Because that sen-
tencing range is lower than his range without Amendment
706, he contends that he is eligible for a reduction in sentence.
[2] We disagree. We need not decide whether Waters satis-
fies the first requirement for a reduction in sentence because
he does not satisfy the second requirement. The Sentencing
Commission’s applicable policy statement, U.S.S.G.
§ 1B1.10(b)(1), states:
In determining whether, and to what extent, a reduc-
tion in the defendant’s term of imprisonment under
18 U.S.C. 3582(c)(2) and this policy statement is
warranted, the court shall determine the amended
guideline range that would have been applicable to
the defendant if the amendment(s) to the guidelines
listed in subsection (c) had been in effect at the time
the defendant was sentenced. In making such deter-
mination, the court shall substitute only the amend-
UNITED STATES v. WATERS 11155
ments listed in subsection (c) [i.e., Amendment 706]
for the corresponding guideline provisions that were
applied when the defendant was sentenced and shall
leave all other guideline application decisions unaf-
fected.
U.S.S.G. § 1B1.10(b)(1) (emphasis added). Under this provi-
sion, “a reduction in the defendant’s term of imprisonment is
not authorized under 18 U.S.C. 3582(c)(2) . . . if . . . an
amendment . . . is applicable to the defendant but the amend-
ment does not have the effect of lowering the defendant’s
applicable guideline range because of the operation of
another guideline or statutory provision.” U.S.S.G. § 1B1.10
cmt. n.1(A) (emphasis added).
[3] Here, had Waters been sentenced under Amendment
706, his sentencing range would have remained 360 months
to life by operation of the career offender guideline,
§ 4B1.1(b). His offense level under §§ 2D1.1 and 3B1.4
would have been 36. His offense level and criminal history
category under § 4B1.1 would have been 37 and VI respec-
tively. Under those circumstances, the district court would
have applied the career offender offense level of 37 and the
career offender criminal history category of VI. See U.S.S.G.
§ 4B1.1(b). This calculation would have resulted in a sentenc-
ing range of 360 months to life — the same as his sentencing
range at his original sentencing. See U.S.S.G. ch. 5, pt. A. He
is therefore ineligible for relief under § 3582(c)(2). Cf. Leni-
ear, 574 F.3d at 674 (“This application note perfectly
describes the situation here — Amendment 706 applies to [the
defendant] but does not have the effect of lowering his appli-
cable guideline range because of the operation of U.S.S.G.
§ 3D1.4.”).
Waters disputes that conclusion. He argues that, when
determining the sentencing range that would have applied had
Amendment 706 been in effect, we may not rely on the
offense level specified by § 4B1.1(b) because the district
11156 UNITED STATES v. WATERS
court did not apply that offense level at his original sentenc-
ing. He derives that proposition from the language of
§ 1B1.10(b), which, as we have noted, says that, in determin-
ing “the amended guideline range that would have been appli-
cable to the defendant if the amendment[ ] . . . had been in
effect at the time the defendant was sentenced . . . , the court
. . . shall leave all other guideline application decisions unaf-
fected” (emphasis added). Relying on the italicized language,
Waters argues that “[a]pplying the career offender default
offense level at the § 3582(c)(2) hearing in lieu of the offense
level derived from § 2D1.1 and § 3B1.4[,] which was applied
at the original sentencing[,] would violate the § 1B1.10 . . .
instruction that courts ‘leave all other guideline application
decisions unaffected.’ ” Waters argues, in essence, that the
district court’s decision in 2002 to apply the total offense
level from §§ 2D1.1 and 3B1.4 rather than the offense level
from the career offender guideline, § 4B1.1(b), as mandated
by § 4B1.1(b), constituted an “application decision” that must
remain unaffected during the § 1B1.10(b) determination.
[4] We reject that contention. The district court’s decision
to apply the offense level from §§ 2D1.1 and 3B1.4 rather
than § 4B1.1(b) was not an “application decision” within the
meaning of § 1B1.10(b). It was an application of § 4B1.1(b).
Indeed, contrary to Waters’ contention, the “application deci-
sion” that in fact must remain unaffected in making the
§ 1B1.10(b) determination is the district court’s decision that
Waters qualifies as a career offender: the district court is
required to apply § 4B1.1 when determining the sentencing
range that would have applied had Amendment 706 been in
effect at the time of Waters’ original sentencing. That is the
case because the court’s decision to treat Waters as a career
offender at the time of sentencing was a “guideline applica-
tion decision” that remains unaffected by the Sentencing
Commission’s adoption of Amendment 706. Waters’ conten-
tion is therefore without merit.
UNITED STATES v. WATERS 11157
II.
[5] Waters argues in the alternative that § 4B1.1 does not
apply to the § 1B1.10 determination because he is not a career
offender.1 Waters, however, offers no authority for the propo-
sition that a § 3582(c)(2) proceeding may be used to revisit a
career offender determination. See Dillon v. United States,
130 S. Ct. 2683, 2691 (2010) (“Section 3582(c)(2)’s text,
together with its narrow scope, shows that Congress intended
to authorize only a limited adjustment to an otherwise final
sentence and not a plenary resentencing proceeding.”); see
also United States v. Dunn, 631 F.3d 1291, 1293 (D.C. Cir.
2011) (“[A] court’s authority in a sentence-reduction proceed-
ing is strictly limited to shortening the length of a prison term
and does not extend to collateral matters unrelated to the
Guidelines change.”); United States v. Evans, 587 F.3d 667,
674 (5th Cir. 2009) (“A § 3582(c)(2) motion is not the appro-
priate vehicle for raising [issues related to the original sen-
tencing].” (alteration in original) (quoting United States v.
Shaw, 30 F.3d 26, 29 (5th Cir. 1994)) (internal quotation
marks omitted)); United States v. Jackson, 573 F.3d 398, 400
(7th Cir. 2009) (“[The defendant] seeks to use a Section
3582(c) motion as an opportunity to challenge the appropri-
ateness of the original sentence; he cannot do so. The career
offender Guidelines have not been amended and, accordingly,
[the defendant’s] sentence falls outside the class of cases that
a district court has jurisdiction to modify.”). We therefore
decline to reexamine Waters’ status as a career offender.
III.
[6] At the § 3582(c) hearing, the parties and the court
focused their discussion on whether Waters was sentenced
under the drug quantity guideline, § 2D1.1, or the career
1
Waters argues that the career offender provision does not apply
because his prior drug convictions were not “controlled substance offen-
se[s]” as defined in U.S.S.G. § 4B1.2.
11158 UNITED STATES v. WATERS
offender guideline, § 4B1.1. This debate appears to have been
prompted by our statement in United States v. Wesson, 583
F.3d 728, 731 (9th Cir. 2009), that these “two sentencing
schemes are mutually exclusive.” When we made that state-
ment in Wesson we meant that the offense levels under
§ 2D1.1(c) and § 4B1.1(b) are mutually exclusive: if the
offense level under § 2D1.1(c) is greater than or equal to the
offense level under § 4B1.1(b), then the § 2D1.1(c) offense
level must be applied. See U.S.S.G. § 4B1.1(b). If the offense
level under § 2D1.1(c) is less than the offense level under
§ 4B1.1(b), then the offense level under § 4B1.1(b) must be
applied. See id. Wesson does not preclude a district court from
calculating a single sentencing range based on both of these
provisions. A court may, for example, determine a sentencing
range based on an offense level specified by § 2D1.1 and a
criminal history category specified by § 4B1.1, as occurred
here. Waters was sentenced under both of these guidelines
provisions — and properly so.
Waters is therefore correct that he was sentenced in part
based on the crack cocaine guidelines in § 2D1.1 that have
now been revised. Nonetheless, he is ineligible for a reduction
of sentence because “Amendment 706 has no effect on his
applicable guideline range.” Wesson, 583 F.3d at 732.
CONCLUSION
[7] A reduction in Waters’ sentence would not be “consis-
tent with applicable policy statements issued by the Sentenc-
ing Commission.” 18 U.S.C. § 3582(c)(2). The district court
therefore properly dismissed his motion for a reduction of
sentence for lack of jurisdiction.
AFFIRMED.