NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0842n.06
No. 09-4003
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, Dec 15, 2011
LEONARD GREEN, Clerk
Plaintiff - Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
DONTEZ JOHNSON, NORTHERN DISTRICT OF OHIO
Defendant - Appellant.
/
BEFORE: MARTIN, CLAY, and WHITE, Circuit Judges.
CLAY, Circuit Judge. Defendant, Dontez Johnson, appeals a district court order denying
his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), on the basis that Johnson was
ineligible for a sentence reduction given his status as a career offender. For the reasons set forth
below, we AFFIRM the district court’s order.
BACKGROUND
On September 1, 2004, a federal grand jury returned an indictment charging Johnson with
one count of conspiracy to possess with intent to distribute and to distribute cocaine base (“crack-
cocaine”), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. On April 13, 2005, Johnson
pleaded guilty to the charge, pursuant to a written plea agreement.
No. 09-4003
The district court relied on a presentence report to determine Johnson’s applicable sentencing
range under the United States Sentencing Guidelines (the “Guidelines” or “USSG”). The report set
Johnson’s base offense level at 22, but adjusted it to 19 after a reduction for acceptance of
responsibility. Based on Johnson’s convictions for several prior drug trafficking offenses, the district
court adopted the report’s recommendation and deemed Johnson a career offender under Guideline
§ 4B1.1. The career offender provision enhanced Johnson’s offense level to 32. Applying the
acceptance of responsibility reduction, Johnson’s total offense level was set at 29. At sentencing,
the court granted the government’s substantial assistance motion and further reduced Johnson’s
offense level to 24. Combined with a criminal history category of VI, the resulting Guidelines range
was 100 to 125 months. On July 15, 2005, the district court sentenced Johnson within the
Guidelines to 110 months in prison and three years of supervised release.
On June 17, 2009, Johnson moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).
The government opposed the motion. On August 13, 2009, the district court summarily denied
Johnson’s motion, reasoning that Johnson was not eligible for a reduction because his sentence was
based on his career offender status.
Johnson timely appealed on August 17, 2009. Original jurisdiction exists under 18 U.S.C.
§ 3231. Appellate jurisdiction exists under 18 U.S.C. § 3742. See United States v. Bowers, 615 F.3d
715, 722 (6th Cir. 2010).
ANALYSIS
I. Standard of Review
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This Court reviews the district court’s denial of a motion to modify a sentence under
§ 3582(c)(2) for abuse of discretion. See United States v. Payton, 617 F.3d 911, 912 (6th Cir. 2010).
A district court abuses its discretion if it relies on clearly erroneous findings of fact,
improperly applies the law, or uses an erroneous legal standard. United States v. Washington, 584
F.3d 693, 695 (6th Cir. 2009). Where, however, a district court declined to exercise its discretion,
finding instead that it lacked the statutory authority to reduce a defendant’s sentence, the district
court’s determination of ineligibility is reviewed de novo as a question of law. Payton, 617 F.3d at
913.
Following rulings by the Supreme Court in Dillon v. United States, 130 S. Ct. 2683 (2010),
and by this Circuit in United States v. Bowers, 615 F.3d 715, this Court lacks jurisdiction over
Booker-based arguments challenging a district court’s factual findings or the procedural or
substantive reasonableness of decisions made in a § 3582(c)(2) sentence reduction proceeding. See
id. at 728.
II. Sentence Reduction under 18 U.S.C. § 3582
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). Pursuant to § 3582(c)(2), a court may modify a term
of imprisonment if a defendant’s sentence was based on a sentencing range that has subsequently
been lowered by the Sentencing Commission and if such a reduction would be consistent with
applicable Guidelines’ policy statements. See 18 U.S.C. § 3582(c)(2); USSG § 1B1.10(a)(1). A
reduction is inconsistent and therefore not authorized where the applicable Guidelines Amendment
does not have the effect of lowering a defendant’s Guideline range. USSG § 1B.10(a)(2)(B), policy
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statement. Eligibility for a § 3582(c)(2) reduction is triggered only by listed Amendments. USSG
§ 1B1.10(a), comment. (n.1).
Johnson seeks a sentence reduction under Amendment 706 to Guideline § 2D1.1.1
Amendment 706 lowered the base offense level for most crack-cocaine narcotics offenses by two
levels. See USSG Supp. App. C, amend. 706 (effective Nov. 1, 2007) and amend. 713 (declaring
Amendment 706 retroactive effective March 3, 2008). Amendment 706 is a covered amendment
justifying consideration for a § 3582(c)(2) sentence reduction. See USSG § 1B1.10(c).
III. Application
On appeal, Johnson reasserts the arguments made to the district court. Johnson argues that
his career offender status did not bar the court from reducing his sentence, because his sentence was
based on his underlying crack-cocaine conviction and not on his career offender status. He
additionally argues the court was not prohibited from considering whether the sentencing factors set
out in 18 U.S.C. § 3553(a) or other discretionary considerations otherwise merited a reduction in his
case, given the Supreme Court’s holdings in United States v. Booker, 543 U.S. 220 (2005) and
Kimbrough v. United States, 552 U.S. 85 (2007).
The district court concluded that it lacked the authority to grant Johnson’s sentence reduction
motion because Johnson’s sentence was based on his career offender status, rather than his
underlying narcotics offense. The court was correct in its analysis.
1
Although Johnson did not cite to a specific Guidelines Amendment before the district court,
he now clarifies on appeal that he seeks relief under Amendment 706.
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No. 09-4003
Although a narcotics-based offense may originally be calculated under § 2D1.1, the
defendant’s sentence is not “based on” that provision if the § 2D1.1 range is subsequently trumped
by another provision of the guidelines. See United States v. Hameed, 614 F.3d 259, 262 (6th Cir.
2010). Accordingly, this Court has consistently maintained that “‘a defendant convicted of crack-
related charges but sentenced as a career offender under Guideline § 4B1.1 is not eligible for a
reduction based on Amendment 706.’” United States v. Bridgewater, 606 F.3d 258, 260–61 (6th Cir.
2010) (quoting United States v. Curry, 606 F.3d 323 (6th Cir. 2010) (citing United States v. Perdue,
572 F.3d 288, 292–93 (6th Cir. 2009))).
Once the district court determines that the defendant is ineligible for a § 3582(c)(2) sentence
reduction, the Sentencing Commission’s policy statements cabin the court’s discretion to otherwise
grant a reduction, and further inquiry must cease. See Dillon, 130 S. Ct. at 2692. Consequently, the
district court was correct in refusing to consider Johnson’s Booker-based arguments, because
Johnson was ineligible for a sentence reduction, and Booker does not apply to sentence reduction
proceedings.2 See id. To the extent that Johnson reasserts attacks based on the reasonableness of
the district court’s decision, this Court lacks jurisdiction. Bowers, 615 F.3d at 727.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order.
2
Because Booker does not apply in the context of sentence reduction proceedings, the district
court also did not err in rejecting Johnson’s related argument that the Guidelines’ policy statements
should have been treated as non-binding. United States v. Hameed, 614 F.3d 259, 267 (6th Cir.
2010).
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