                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0052n.06

                                           No. 09-3491                                   FILED
                                                                                     Jan 24, 2011
                             UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT     FOR    THE
v.                                                       )        NORTHERN DISTRICT OF
                                                         )        OHIO
WILLIAM TERRY BLACK,                                     )
                                                         )                          OPINION
       Defendant-Appellant.                              )




BEFORE:        DAUGHTREY, GILMAN, and McKEAGUE, Circuit Judges.

       McKeague, Circuit Judge. William Black was sentenced to 135 months in prison for

conspiracy to possess cocaine base with intent to distribute and being a felon in possession of a

firearm. After the Sentencing Commission retroactively reduced the base offense level for cocaine-

base offenses, Black requested a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). The district

court denied Black’s request and Black appealed. Because Black has not asserted a claim that we

are empowered to address, this appeal is DISMISSED for lack of jurisdiction.

                                                 I.

       On August 30, 2005, Black pleaded guilty to conspiracy to possess cocaine base with intent

to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(a) and § 846, and being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At Black’s sentencing hearing later
No. 09-3491
USA v. Black

that year, the district court calculated a Sentencing Guidelines range of 135 to 168 months and then

sentenced Black to 135 months in prison.

        Effective November 1, 2007, the U.S. Sentencing Commission adopted Amendment 706,

which amended the drug calculation tables to reduce the base offense level associated with cocaine-

base offenses. U.S.S.G. App. C, amdt. 706. In 2008, the Commission made the amendment

retroactive, making an individual serving a term of imprisonment for a cocaine-base offense under

the old Guidelines eligible for a reduced sentence under the new Guidelines. U.S.S.G. app. C, amdt.

713 (effective Mar. 3, 2008).

        Black then filed a motion for a sentence modification pursuant to 18 U.S.C. § 3582(c)(2),

which authorizes a district court to reduce a term of imprisonment that was premised on a guideline

that was later retroactively reduced, “after considering 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 by

the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Black sought to reduce his sentence to 120

months under a recalculated amended Guidelines range of 108 to 135 months. The government

opposed Black’s motion for public safety reasons. The district court declined to reduce Black’s

sentence, citing Black’s violent criminal history1, record of recidivism, and possession of firearms

in the instant offense. Black appealed.




       1
         In connection with his participation in an armed burglary, Black was convicted of complicity
to commit manslaughter with a firearm specification and complicity to commit felonious assault with
a firearm specification in 1994. In 1992, Black was convicted of discharging a firearm in public.

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USA v. Black

                                                  II.

        On appeal, both parties maintain that this court has jurisdiction under 28 U.S.C. § 1291, the

general appellate jurisdiction statute. However, we have an independent obligation to police the

subject-matter limitations of jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583

(1999). The correct jurisdictional statute for appeals of § 3582(c)(2) proceedings is actually

18 U.S.C. § 3742(a). United States v. Bowers, 615 F.3d 715, 722 (6th Cir. 2010). Section 3742(a)

authorizes us to hear a defendant’s appeal of an “otherwise final sentence” if the sentence:

        (1) was imposed in violation of law;

        (2) was imposed as a result of an incorrect application of the sentencing
        guidelines; or

        (3) is greater than the sentence specified in the applicable guideline range . . . ; or

        (4) was imposed for an offense for which there is no sentencing guideline and is
       plainly unreasonable.

18 U.S.C. § 3742(a). Thus, § 3742(a) only permits sentencing appeals in certain instances.

        Sentence-modification proceedings are not compelled by the Constitution and are in many

ways conceptually different from original sentence proceedings. Dillon v. United States, 130 S.Ct.

2683, 2692-93 (2010). Accordingly, the Supreme Court has held that § 3582(c)(2) proceedings do

not implicate the constitutional rights that the Court recognized are implicated in original sentencing

proceedings in United States v. Booker, 543 U.S. 220 (2005). Id. at 2692. Of particular import to this

case, in Bowers, we considered whether this court has jurisdiction under § 3742(a) to consider a

defendant’s claims of unreasonableness in § 3582(c)(2) proceedings. Bowers, 615 F.3d at 725. We

held that allegations of Booker and United States v. Gall, 552 U.S. 38 (2007), unreasonableness in

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§ 3582(c)(2) proceedings are not appealable under § 3742(a). Id. at 728 n.14 (noting also that

“defendants may continue to appeal district-court determinations in sentence-reduction proceedings

to the extent they allege ‘violation[s] of law’ not premised on Booker and its progeny”); see Dillon,

130 S.Ct. at 2692. With this in mind, we must then consider whether § 3742(a) empowers us to

entertain any of Black’s arguments on appeal. We will consider each of Black’s arguments in turn.

         Black first contends that the district court was required to recalculate the amended Guidelines

range of his sentence, and that the court’s failure to explicitly do so constituted an abuse of discretion.

See U.S.S.G. § 1B1.10(b)(1) (“In determining whether, and to what extent, a reduction in the

defendant’s term . . . is warranted, the court shall determine the amended guideline range . . . .”). An

allegation that the district court failed to or improperly calculated the Guidelines range is a claim of

procedural unreasonableness. Gall, 552 U.S. at 51; United States v. Novales, 589 F.3d 310, 314 (6th

Cir. 2009) (noting that a failure to calculate a sentence during an original sentencing proceeding is

procedurally unreasonable).       We do not have jurisdiction to hear a claim of procedural

unreasonableness in an appeal of a § 3582(c)(2) proceeding. Bowers, 615 F.3d at 728.

         Next, Black contends that the district court abused its discretion because it did not give “real

consideration” to public safety concerns. If a district court determines that a defendant is eligible for

a sentence reduction, the Guidelines require the court to consider public safety in determining whether

to reduce the defendant’s term of imprisonment. U.S.S.G. § 1B1.10 cmt. n.1(B)(ii) (“The court shall

consider the nature and seriousness of the danger to any person in the community that may be posed

by a reduction in the defendant’s term of imprisonment . . . .”). Black also contends that the district

court should have given more weight to his post-sentencing conduct. Id. § 1B1.10 cmt. n.1(B)(iii)

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USA v. Black

(“The court may consider post-sentencing conduct of the defendant that occurred after imposition of

he original term of imprisonment . . . .”) (emphasis added). Simply stated, Black argues that the

district court’s conclusion that public safety concerns still warrant imposing the same sentence was

unreasonable in light of the totality of the circumstances. Thus, Black has made a claim of

substantive unreasonableness. See United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008)

(noting that substantive reasonableness review requires a court to consider the reasonableness of the

sentence considering the totality of the circumstances). This is also a claim that we do not have

jurisdiction to entertain in an appeal of a § 3582(c)(2) proceeding. Bowers, 615 F.3d at 728

(dismissing a sentence modification appeal premised on the argument that the sentence is

substantially longer than necessary).

        Finally, Black argues that the district court failed to analyze the § 3553(a) factors, or

alternatively, that the district court’s analysis of the § 3553(a) factors was inappropriate. This is a

claim of procedural unreasonableness.         Gall, 552 U.S. at 51; United States v. Brown,

501 F.3d 722, 724 (6th Cir. 2007) (noting that an original sentence may be procedurally unreasonable

if the district judge neglects to consider the § 3553(a) factors). Thus, we also lack jurisdiction to

entertain this claim. Bowers, 615 F.3d at 728.

                                                 III.

        For these reasons, this appeal is DISMISSED for want of jurisdiction.




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