                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0731n.06

                                           No. 09-4104

                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT
                                                                                     Nov 19, 2010
                                                                                LEONARD GREEN, Clerk
United States of America,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )   ON APPEAL FROM THE
                                                       )   UNITED STATES DISTRICT
Arroyal Hall,                                          )   COURT FOR THE NORTHERN
                                                       )   DISTRICT OF OHIO
       Defendant-Appellant.                            )


Before:         KEITH, KENNEDY, and COOK, Circuit Judges.

       Per Curiam. Defendant-Appellant Arroyal Hall (“Hall”) pled guilty to conspiring to possess

with intent to distribute cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1). The district

court sentenced Hall to a term of 140 months of imprisonment. Hall then filed a motion to modify

his sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court denied the motion. Hall now

timely appeals the motion’s denial. For the following reasons, we AFFIRM the district court.

                                                 I.

       On December 17, 2003, a federal grand jury in the Northern District of Ohio returned an

indictment against Hall. He was charged with conspiracy to possess with intent to distribute cocaine

base (Count 1) and possession with intent to distribute cocaine base (Count 2) in violation of 21

U.S.C. §§ 846 and 841(a)(1). On May 10, 2004, Hall pled guilty to count one of the indictment,

pursuant to a written plea agreement with the government.
No. 09-4104
United States v. Arroyal Hall

       The district court relied on the Presentence Report in determining Hall’s applicable

sentencing range under the United States Sentencing Guidelines. Because of the amount of cocaine

attributed to Hall, he would have received a base offense level of twenty-six under § 2D1.1 if he had

not been sentenced as a career offender. However, because Hall qualified as a career offender under

§ 4B1.1(b)(A), his base offense level was elevated to thirty-seven. The court granted a three-level

reduction for acceptance of responsibility and a six-level reduction for substantial assistance to the

government under § 5K1.1. With a criminal history category of VI, Hall had an adjusted base

offense level of twenty-eight under § 4B1.1. As a result, Hall fell within a sentencing guideline

range of 140 to 174 months. On October 15, 2004, the district court sentenced Hall to 140 months

of imprisonment.

       Subsequently, Hall filed a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2),

based on Amendment 706 to the Sentencing Guidelines, which lowered the base offense levels for

crack cocaine offenses. The district court denied Hall’s motion for a reduction of sentence because

his Guidelines range was enhanced under the career offender provision, § 4B1.1, and he was thus

ineligible for a sentence reduction under Amendment 706. Hall now timely appeals the denial of his

motion for a reduction of sentence.

                                                 II.

       We review a district court’s denial of a motion to modify a sentence under § 3582(c)(2) for

an abuse of discretion. United States v. Perdue, 572 F.3d 288, 290 (6th Cir. 2009). “A district court

abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly



                                                  2
No. 09-4104
United States v. Arroyal Hall

applies the law or uses an erroneous legal standard.” Id. (quoting United States v. Larry W. Carter,

463 F.3d 526, 528 (6th Cir. 2006)).



                                               III.

       The issue on appeal is straightforward, and one directly addressed by this circuit before –

whether Amendment 706 gives cause to reduce a defendant’s sentence when the Guidelines range

was determined based upon his status as a career offender. Amendment 706, passed in November

2007 and made retroactive in 2008, reduces by two levels the base offense level under the Guidelines

where a defendant was convicted under § 2D1.1 for crack cocaine offenses. U.S.S.G. Supp. App.

C, Amdt 706 (effective Nov. 1, 2007); see also id., Amdt 713 (effective Mar. 3, 2008). In Perdue,

this circuit expressly held that Amendment 706 has no effect on the Guidelines range of a defendant

sentenced as a career offender. 572 F.3d at 293. Nevertheless, Hall appealed in this case in order

to preserve his appeal if the Supreme Court reviewed the issue. Hall argues that, in light of United

States v. Booker, 543 U.S. 220 (2005), all Guideline provisions are discretionary and no longer

mandatory, thereby authorizing the district court to reduce a sentence below the applicable range

pursuant to § 3582(c)(2), even though he was sentenced as a career offender.

       Recently, the Supreme Court in United States v. Dillon, 130 S. Ct. 2683 (2010), directly

addressed the issue of whether Booker applies to motions for a reduction of sentence under §

3582(c)(2). The Court held that it does not. Dillon, 130 S. Ct. at 2692. Booker requires a court to

base sentencing upon facts found beyond a reasonable doubt by the jury. 543 U.S. at 244. This

decision effectively rendered the Guidelines advisory in contradiction to § 3553(b)(1), which

                                                 3
No. 09-4104
United States v. Arroyal Hall

requires a sentencing court to follow the applicable Guidelines range. Id. at 259. As the Court

explained in Dillon, Booker applies to sentencing and resentencing proceedings, while § 3582(c)(2)

provides for a limited sentence modification to an otherwise final sentence in circumstances

specified by the Sentencing Commission. Dillon, 130 S. Ct. at 2690. Though under § 3582(c)(2)

a sentencing court should consider the requirements under § 3553(b)(1), it may only do so after

considering whether the prisoner is eligible for sentence reduction following § 1B1.10. Id. at 2691-

92. Even then, the court only considers § 3553(b)(1) for the limited purpose of determining whether

to reduce the sentence by the limited amount permitted pursuant to the Guidelines Amendment. Id.

Thus, “[g]iven the limited scope and purpose of § 3582(c)(2), . . . proceedings under that section do

not implicate the interests identified in Booker.” Id. at 2692.

       In light of the current jurisprudence of this circuit as affirmed by the Supreme Court in

Dillon, Hall’s appeal has no merit. Accordingly, the district court correctly denied Hall’s motion.



                                                IV.

       For the foregoing reasons, the district court did not err in denying Hall’s motion for a

sentence reduction pursuant to Amendment 706. The judgment of the district court is, hereby,

AFFIRMED.




                                                 4
