                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                             File Name: 16a0050p.06

                       UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


 UNITED STATES OF AMERICA,                                        ┐
                                         Plaintiff-Appellee,      │
                                                                  │
                                                                  │
            v.                                                    │
                                                                   >        No. 15-5853
                                                                  │
 ERIC W. SMITH,                                                   │
                                      Defendant-Appellant.        │
                                                                  ┘
                             Appeal from the United States District Court
                          for the Western District of Tennessee at Memphis.
                       No. 2:93-cr-20314—S. Thomas Anderson, District Judge.

                                  Decided and Filed: February 25, 2016

       Before: BATCHELDER and ROGERS, Circuit Judges; GRAHAM, District Judge.*

                                            _________________

                                                  COUNSEL

ON BRIEF: Elizabeth Rogers, UNITED STATES ATTORNEY’S OFFICE, Memphis,
Tennessee, for Appellee. Eric W. Smith, Forrest City, Arkansas, pro se.

                                            _________________

                                                   OPINION
                                            _________________

        PER CURIAM. Eric Smith, a pro se federal prisoner, appeals the district court’s denial
of his motion to reduce his 360-month sentence pursuant to 18 U.S.C. § 3582(c)(2), which can
permit a sentence reduction when a prisoner was sentenced based on a sentencing range that has
subsequently been lowered. Smith’s sentence was based on the Sentencing Guidelines for drug-

        *
          The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.




                                                        1
No. 15-5853                                   United States v. Smith                                Page 2


trafficking offenses, U.S.S.G. § 2D1.1, even though he also qualified as a career offender under
U.S.S.G. § 4B1.1.        Amendment 782 to § 2D1.1 subsequently lowered the drug-trafficking
offense level applicable to Smith’s case, and that decreased offense level produces a Guidelines
range that is lower than the 360 months to life under which he was sentenced. However,
§ 3582(c)(2) does not permit a sentence reduction when the operation of another Guidelines
provision prevents an amendment from having the effect of lowering the Guidelines range
applicable to a defendant’s case.           Even if Amendment 782 had applied when Smith was
sentenced, Smith’s status as a career offender under § 4B1.1 still would have required the
application of a Guidelines range of 360 months to life. Accordingly, Smith does not qualify for
a reduction under § 3582(c)(2), and the district court properly denied such relief.

        In 1994, a jury convicted Smith of participating in a drug conspiracy and maintaining a
drug house. Although Smith’s presentence report noted that he qualified as a career offender
under U.S.S.G. § 4B1.1, the district court sentenced him based on the Sentencing Guidelines for
drug-trafficking offenses, U.S.S.G. § 2D1.1. The career-offender offense level applies only if it
is greater than the otherwise applicable offense level, see § 4B1.1 (1994), and at Smith’s
sentencing, the drug-trafficking provision produced a higher offense level (40)1 than did the
career-offender provision (37).2 Smith’s offense level of 40 and his criminal history category of
VI produced a Guidelines range of 360 months to life. The district court sentenced Smith to 360
months’ imprisonment. In 2014, Smith moved for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) and Amendment 782 to the Sentencing Guidelines, which lowered the base-offense
level in the Drug Quantity Table applicable to the 2.35 kilograms of cocaine base attributed to
Smith. Compare U.S.S.G. § 2D1.1(c), with U.S.S.G. § 2D1.1(c) (1991). The district court
denied his motion, and Smith now appeals.


        1
          When Smith was sentenced under § 2D1.1, the base-offense level applicable to the 2.35 kilograms of
cocaine base attributed to him was 38. U.S.S.G. § 2D1.1(a)(3), (c)(3) (1991). He received a two-level increase for
his possession of a firearm under § 2D1.1(b)(1) (1991), leading to a total offense level of 40.
        2
          Under § 4B1.1, the offense level correlates with the statutory maximum penalty for the offense of
conviction. When Smith was sentenced, the statutory maximum penalty for his offense of conviction, conspiracy to
possess and distribute 2.35 kilograms of cocaine base in violation of 21 U.S.C. § 841(a)(1), carried a maximum
sentence of life imprisonment. 21 U.S.C. § 841(b)(1)(A) (1994). Under the version of § 4B1.1 in effect at the time,
an offense level of 37 applied if the defendant’s offense of conviction had a maximum penalty of life imprisonment.
§ 4B1.1 (1994).
No. 15-5853                                    United States v. Smith                                 Page 3


        The district court correctly denied Smith’s motion because Amendment 782 does not
have the effect of lowering the Guidelines range applicable to his case. Section 3582(c)(2)
permits a district court to reduce a defendant’s sentence if the defendant “has been sentenced to a
term of imprisonment based on a sentencing range that has subsequently been lowered by the
Sentencing Commission” and if “such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.”                   The applicable policy statements are U.S.S.G.
§ 1B1.10(a)(2), which states that a sentence reduction is permitted when an amendment has “the
effect of lowering the defendant’s applicable guideline range,” and U.S.S.G. § 1B1.10(b)(1),
which states that “the court shall determine the amended guideline range that would have been
applicable to the defendant if the amendment(s) to the guidelines . . . had been in effect at the
time the defendant was sentenced.” The comments to § 1B1.10 further provide that a reduction
is not authorized if the amendment “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). Here, Amendment 782 does not have the
effect of lowering the Guidelines range applicable to Smith’s case, because Smith still would
have been subject to a Guidelines range of 360 months to life due to the operation of § 4B1.1.

        The career-offender offense level “shall apply” when it is greater than the otherwise
applicable offense level. See § 4B1.1(b); § 4B1.1 (1994). Smith’s career-offender offense
level—both at his sentencing and under current law—is 37. See § 4B1.1; § 4B1.1 (1994); see
also 21 U.S.C. § 841(b)(1)(A) (1994) (providing that the maximum penalty for a violation of
§ 841(a)(1) involving 50 grams or more of cocaine base is life imprisonment). If Amendment
782 had been in effect at Smith’s sentencing, his drug-trafficking offense level would have been
34, which produces a Guidelines range of 262 to 327 months when combined with Smith’s
criminal history category.3 Because 37 is greater than 34, the district court would have applied
the career-offender offense level if Amendment 782 had been in effect at Smith’s sentencing.
An offense level of 37 combined with Smith’s criminal history category of VI produces the same
Guidelines range that the district court applied at Smith’s sentencing: 360 months to life. Thus,

        3
            Under Amendment 782, the base-offense level for an offense involving between 0.840 kilograms and
2.8 kilograms of cocaine base is 32, § 2.D1.1(c)(4), and Smith still would have received a two-level increase for the
use of a firearm. See § 2D1.1(b).
No. 15-5853                             United States v. Smith                        Page 4


because Amendment 782 does not have the effect of lowering the applicable Guidelines range
due to the operation of § 4B1.1, Smith is not eligible for a sentence reduction under § 3582(c)(2).
This conclusion is in accord with our prior unpublished decision, United States v. Steel, 609 F.
App’x 851, 855–56 (6th Cir. 2015), as well as the decisions of our sister circuits. See United
States v. Stevenson, 749 F.3d 667, 670 (7th Cir. 2014), cert. denied, 135 S. Ct. 1011 (2015);
United States v. Crawford, 522 F. App’x 758, 760 (11th Cir. 2013); United States v. Waters,
648 F.3d 1114, 1117–18 (9th Cir. 2011).

       For the foregoing reasons, the order of the district court is affirmed.
