File Name: 10a0744n.06
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 09-2373
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 30, 2010
UNITED STATES OF AMERICA,
LEONARD GREEN, Clerk
Plaintiff-Appellee,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
DELANO D. SANDERS, COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
Defendant-Appellant.
/
Before: MARTIN, GIBBONS, and KETHLEDGE, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Defendant-appellant Delano D. Sanders appeals
the district court’s denial of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) in the
aftermath of the United States Sentencing Commission’s decision to lower the Sentencing
Guidelines range for crack cocaine offenses. Because the career offender Guidelines rather than the
crack cocaine Guidelines controlled Sanders’ original sentence, the district court correctly concluded
that he is not eligible for a sentence reduction pursuant to section 3582(c)(2). We therefore
AFFIRM the judgment of the district court.
I. BACKGROUND
On May 20, 1999, Sanders pled guilty pursuant to a plea agreement to distribution of crack
cocaine, 21 U.S.C. § 841(a)(1). Sanders’ adjusted offense level was thirty-three and his criminal
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United States v. Sanders
Page 2
history category was VI, yielding a Guidelines range of nineteen years and seven months to twenty-
four years and ten months. However, Sanders was sentenced as a career offender, which elevated
his offense level to thirty-seven. After the application of a three-point reduction for acceptance of
responsibility, Sanders’ offense level was thirty-four, yielding a Guidelines range of twenty-one
years and ten months to twenty-seven years and three months. On September 7, the district court
sentenced Sanders to twenty-two years’ imprisonment. On April 9, 2001, the district court reduced
Sanders’ sentence by thirty-five per cent to fourteen years and three months following a motion for
reduction of sentence by the Government pursuant to Rule 35.
On November 1, 2007, the Sentencing Commission adopted Amendment 706 to the
Sentencing Guidelines, reducing the offense level for cocaine-base offenses. See U.S.S.G. supp. to
app. C, amend. 706. On March 3, 2008, the Commission made Amendment 706 retroactive. See
U.S.S.G. supp. to app. C, amend. 713. On April 27, 2009, Sanders filed a motion for reduction of
sentence pursuant to section 3582(c)(2). On October 16, the district court denied the motion due to
Sanders’ status as a career offender. Sanders appeals.
II. ANALYSIS
Sanders claims that the district court erred when it concluded that he was ineligible for a
sentence reduction pursuant to section 3582(c)(2). This Court reviews de novo a district court’s
conclusions about the scope of its legal authority under section 3582(c)(2). See United States v.
Curry, 606 F.3d 323, 327 (6th Cir. 2010).
A district court may modify a defendant’s sentence only as authorized by statute. See United
States v. Johnson, 564 F.3d 419, 421 (6th Cir. 2009). When a court sentences a defendant “based
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United States v. Sanders
Page 3
on a sentencing range that has subsequently been lowered by the Sentencing Commission,” it may
reduce the sentence if that “is consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). A Sentencing Commission policy statement provides that
a modification of a sentence is not authorized if “[a]n amendment . . . does not have the effect of
lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a).
Here, the district court originally sentenced Sanders “based on” the career offender Guideline
range rather than the crack cocaine Guideline range. See United States v. Payton, 617 F.3d 911, 914
(6th Cir. 2010). In United States v. Perdue, 572 F.3d 288, 292 (6th Cir. 2009), we held that “a
district court may not grant a motion for a reduction in sentence premised upon Amendment 706 if
the defendant seeking the reduction was originally sentenced as a career offender.” Furthermore,
Amendment 706 does not have the effect of lowering Sanders’ applicable Guidelines range because
even if it had been in place when he was sentenced, then the higher career offender offense level still
would have been used to determine the applicable Guidelines range. See U.S.S.G. § 4B1.1.
Sanders argues that after United States v. Booker, 543 U.S. 220 (2005), the Sentencing
Commission policy statements are advisory and do not inhibit a court from granting the relief that
he seeks. However, Perdue rejected a Booker challenge to the constitutionality of section 1B1.10.
Perdue, 572 F.3d at 292. Furthermore, the Supreme Court recently held that Booker does not apply
to section 3582(c)(2) sentence reductions. Dillon v. United States, 130 S. Ct. 2683, 2692 (2010).
III. CONCLUSION
The district court correctly concluded that Sanders is ineligible for a sentence reduction
pursuant to section 3582(c)(2) because his sentence was based on the career offender Guideline
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United States v. Sanders
Page 4
range rather than the crack cocaine Guideline range. We therefore AFFIRM the decision of the
district court.