                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit Rule 206
                                       File Name: 09a0275p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                  X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                   -
                                                   -
                                                   -
                                                      No. 08-6217
          v.
                                                   ,
                                                    >
                                                   -
                         Defendant-Appellant. -
 JAMES QUINN,
                                                   -
                                                 N
                    Appeal from the United States District Court
                 for the Western District of Kentucky at Louisville.
             No. 98-00085-001—Charles R. Simpson III, District Judge.
                                     Submitted: July 29, 2009
                              Decided and Filed: August 6, 2009
                                                                                                  *
     Before: GILMAN and McKEAGUE, Circuit Judges; SARGUS, District Judge.

                                       _________________

                                             COUNSEL
ON BRIEF: Frank W. Heft, Jr., Patrick J. Bouldin, OFFICE OF THE FEDERAL
DEFENDER, Louisville, Kentucky, for Appellant. Terry M. Cushing, Monica
Wheatley, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for
Appellee.
                                       _________________

                                             OPINION
                                       _________________

         RONALD LEE GILMAN, Circuit Judge. James Quinn was sentenced in 1999
to 124 months of imprisonment for possession of crack cocaine and for being a felon in
possession of a firearm. He received an additional 60-month sentence for carrying a
firearm in relation to a drug-trafficking crime, to be served consecutively. In 2008, the

         *
           The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                   1
No. 08-6217        United States v. Quinn                                           Page 2


district court reduced Quinn’s total sentence by 10 months, giving effect to a retroactive
amendment to the United States Sentencing Guidelines relating to the crack-
cocaine/powder-cocaine disparity. Quinn now argues on appeal that the district court
should have reduced his sentence even more, but that it failed to do so because it used
the wrong offense level in modifying his sentence under the Guidelines. For the reasons
set forth below, we AFFIRM the judgment of the district court.

                                 I.   BACKGROUND

A. Conviction and appeal

        In 1998, a jury convicted Quinn of possessing more than five grams of crack
cocaine, in violation of 21 U.S.C. § 844, possessing crack cocaine with the intent to
distribute the drug, in violation of 21 U.S.C. § 841(a)(1), carrying a firearm during and
in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), and possessing
firearms after a felony conviction, in violation of §§ 924(g)(1) and 924(a)(2). This court
has previously set forth the facts underlying Quinn’s conviction in United States v.
Quinn, 230 F.3d 862, 864 (6th Cir. 2000) (affirming Quinn’s conviction).

B. Sentencing

       In March 1999, the district court sentenced Quinn to a total of 184 months of
imprisonment.     Sixty months of the sentence arose from the third count of
conviction—carrying a firearm in relation to a drug-trafficking crime. This third-count
sentence represented the statutory minimum for the offense, see 18 U.S.C.
§ 924(c)(1)(A)(i), and the district court determined that the 60 months of imprisonment
would run consecutively with the remaining sentence, as required by § 924(c)(1)(D)(ii).

       The remainder of Quinn’s sentence was based upon the then-mandatory United
States Sentencing Guidelines. Neither party disputes the correctness of the initial
Guidelines calculation. For the two crack-cocaine crimes, the base offense level was 26.
The two firearm-possession counts yielded a base offense level of 20. Using the
multiple-count calculation framework of U.S.S.G. § 3D1.4, the court concluded that the
level-26 group (the crack-cocaine crimes) yielded one “unit” for multiple-count
No. 08-6217        United States v. Quinn                                            Page 3


purposes. The level-20 group (the firearm-possession crimes) added another half unit,
because the level-20 group was between 5 and 8 levels less serious than the level-26
group. Id. A total of one and a half multiple-count units resulted in a one-level increase
to Quinn’s base offense level of 26. With the final offense level of 27 and a criminal
history category of IV, Quinn’s Guidelines range was 100 to 125 months of
imprisonment. The district court imposed a sentence of 124 months. Quinn did not
challenge his sentence when he appealed his conviction to this court in 1999. Quinn,
230 F.3d at 862.

C. 18 U.S.C. § 3582(c)(2) modification of Quinn’s sentence

       In 2007, the Sentencing Commission amended U.S.S.G. § 2D1.1(c) to reduce the
base offense level for most crack-cocaine offenses by two levels. U.S.S.G. App. C,
Amend. 706. The Commission also made the amendment retroactive. U.S.S.G.
§ 1B1.10(c). In light of these changes, the district court, pursuant to 18 U.S.C.
§ 3582(c)(2), elected to revisit Quinn’s sentence in 2008. Section 3582(c) is titled
“Modification of an imposed term of imprisonment.” It provides in pertinent part that
a term of imprisonment may not be modified after it is imposed

       except that[,] . . . in the case of a defendant who has been sentenced to a
       term of imprisonment based on a sentencing range that has subsequently
       been lowered by the Sentencing Commission[,] . . . the court may reduce
       the term of imprisonment, after considering the factors set forth in
       section 3553(a) to the extent that they are applicable, if such a reduction
       is consistent with the applicable policy statements issued by the
       Sentencing Commission.
18 U.S.C. § 3582(c)(2).

       The district court thus applied Amendment 706 to reduce Quinn’s base offense
level for the crack-cocaine crimes from 26 to 24. Next, the court reapplied the multiple-
count calculation of U.S.S.G. § 3D1.4. The crack-cocaine crimes again yielded one unit,
but the firearm-possession crimes now yielded a second full unit rather than the half unit
that had applied in the original sentencing calculation. This occurred because the
firearm-possession crimes now fell within four offense levels of the crack-cocaine
No. 08-6217         United States v. Quinn                                           Page 4


crimes. These two units under § 3D1.4 led to a two-level increase in Quinn’s revised
base offense level of 24. The resulting offense level of 26 was thus only one level less
than the offense level at the time of Quinn’s original sentencing, and the new Guidelines
range was 92 to 115 months of imprisonment. Quinn received a new sentence of 114
months for the counts in question. Combined with the still-mandatory 60-month
consecutive sentence for carrying a firearm in relation to a drug-trafficking crime, his
new total sentence was 174 months of imprisonment.

        When presented with the district court’s recalculation analysis as outlined above,
Quinn objected to the fact that he did not receive a two-level decrease to his final offense
level—a result that he had apparently expected under Amendment 706. He accordingly
argued in his Recalculation Memorandum that the district court should “reduce his final
offense level a full two levels, from 27 to 25,” rather than employing the U.S.S.G.
§ 3D1.4 procedure that led to a final offense level of 26, as described above. The district
court rejected Quinn’s request. In its order, the court held that Quinn’s Guidelines range
at the sentence-modification proceedings could not be calculated without reference to
§ 3D1.4 because “the court shall substitute only [the relevant amendment] for the
corresponding guideline provisions that were applied when the defendant was sentenced
and shall leave all other guideline application decisions unaffected.”            U.S.S.G.
§ 1B1.10(b)(1).

        Quinn now appeals. He asks us to determine whether the district court erred “in
failing to give [him] a full, two level reduction on his crack cocaine sentence.”

                                    II.   ANALYSIS

        Quinn’s argument on appeal, stated at its most basic level, is that the district
court used the wrong offense level under the Guidelines when it modified his sentence.
The district court employed a final offense level of 26, but Quinn believes that he is
entitled to be sentenced using an offense level of 25. Quinn made that argument to the
district court and thus has preserved this legal issue—whether the district court erred in
assigning him an offense level of 26 rather than 25—for de novo review on appeal. See
United States v. Peveler, 359 F.3d 369, 373 (6th Cir. 2004) (“[T]o the extent that . . .
No. 08-6217        United States v. Quinn                                            Page 5


arguments . . . rest on the legal interpretation of various [sentencing] guidelines, the
district court’s interpretation of the sentencing guidelines presents a question of law,
subject to de novo review.” (internal quotation marks omitted)).

       In his appellate briefing, Quinn supports his basic assertion that the district court
used the wrong offense level when it modified his sentence with detailed reasoning that
he did not present to the district court. He describes the district court’s use of U.S.S.G.
§§ 1B1.10(b)(1) and 3D1.4 as “mechanical,” and argues that “the District Court’s
reliance on [those two Guidelines] is misplaced because it effectively applied those
Guidelines as being mandatory.” According to Quinn, United States v. Booker, 543 U.S.
220 (2005), gave the district court discretion to recalculate his Guidelines range without
reference to those provisions. The government counters with the categorical argument
that “sentencing modification pursuant to 18 U.S.C. § 3582(c)(2) was unaffected by
Booker.”

       Neither party’s argument quite hits the mark. Quinn, for his part, misstates the
effect of Booker on the discretion of district judges in sentencing. As this court and the
Supreme Court have explained many times, district judges must correctly perform the
largely mechanical calculation of the advisory Guidelines range before exercising
discretion in selecting a sentence. E.g., Gall v. United States, 128 S. Ct. 586, 596 (2007)
(“[A] district court should begin all sentencing proceedings by correctly calculating the
applicable Guidelines range.”); United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)
(reviewing a sentence to determine whether the district court “properly calculated the
applicable advisory Guidelines range”).

       Quinn’s argument that the district judge had authority under Booker to disregard
U.S.S.G. §§ 1B1.10(b)(1) and 3D1.4 and simply subtract two levels from Quinn’s
previous final offense level therefore fails. Amendment 706 affected only U.S.S.G.
§ 2D1.1(c)—the portion of the Guidelines that sets forth the base offense level for crack-
cocaine offenses. All other Guidelines provisions that affect the final offense level
remain unchanged. See U.S.S.G. § 1B1.10(b)(1). Booker did not free the district court
No. 08-6217        United States v. Quinn                                          Page 6


to disregard those other provisions and simply subtract two levels from Quinn’s final
offense level. See Gall, 128 S. Ct. at 596.

       Simply stated, Amendment 706 resulted in a reduction of only one level in
Quinn’s case because he was convicted of firearm-possession crimes as well as crack-
cocaine crimes. When the severity of the crack-cocaine crimes was lessened by
Amendment 706, the relative impact of the firearms possession on Quinn’s Guidelines
range increased. See U.S.S.G. § 3D1.4. We therefore find no error in the district court’s
use of §§ 1B1.10(b)(1) and 3D1.4 to calculate Quinn’s revised Guidelines range.

       The government directly responds to Quinn’s argument only in passing, correctly
stating that “even at original sentencing proceedings under Booker, the district court
must correctly calculate the guidelines range. Once the court has correctly calculated
the guidelines range, it has discretion to vary from that range either upward or
downward.” The government then proceeds to spend the majority of its brief arguing
that district courts have no discretion to vary outside the recalculated Guidelines range
in sentence-modification proceedings under 18 U.S.C. § 3582(c)(2).

       But Quinn did not ask the district court to grant him a downward variance and
has not argued on appeal that the district court should have—or could have—varied
below the properly calculated Guidelines range. In fact, Quinn explicitly stated that “the
only relief [he] seeks is a full 2 level reduction in his crack sentence pursuant to
Amendment 706,” and contrasts his request with the arguments of defendants in other
cases who requested outside-Guidelines sentences at the modification stage. The
government’s arguments regarding the somewhat murky interplay between the Booker
line of Supreme Court cases and 18 U.S.C. § 3582(c)(2) are therefore only tangentially
relevant to this case. Compare U.S.S.G. § 1B1.10(b)(2) (prohibiting district courts,
when modifying pre-Booker sentencing determinations, from using 18 U.S.C.
§ 3582(c)(2) to reduce a term of imprisonment below the bottom of the recalculated
Guidelines range), and United States v. Rhodes, 549 F.3d 833 (10th Cir. 2008) (holding
that district courts lack authority to impose a sentence that falls below the amended
Guidelines range in a sentence-modification proceeding) with United States v. Johnson,
No. 08-6217        United States v. Quinn                                           Page 7


553 F.3d 990, 992 (6th Cir. 2009) (making note of a district court’s authority to “reject
and vary from the crack-cocaine Guidelines based solely on a policy disagreement with
those Guidelines” (citing Spears v. United States, 129 S. Ct. 840 (2009))), and United
States v. Hicks, 472 F.3d 1167 (9th Cir. 2007) (holding that a newly calculated
Guidelines range in a sentence-modification proceeding is advisory). We thus note that
a circuit split exists on the question of whether a Guidelines range is mandatory in a
sentence-modification proceeding under § 3582(c)(2), but decline to resolve the issue
in this case because Quinn has not requested a downward variance.

       In sum, we conclude that the district court properly calculated Quinn’s post-
Amendment 706 Guidelines range. We also reiterate that, in sentence-modification
proceedings, just as in an original sentencing, Booker and its progeny do not alter the
district court’s obligation to make such calculations according to the letter of the
Guidelines. But because Quinn has not sought a below-Guidelines sentence either in the
district court or in this court, we express no opinion as to whether the court was required
to sentence him within the revised Guidelines range calculated in the context of a
sentence-modification proceeding under 18 U.S.C. § 3582(c)(2).

       Quinn also argues that the “automatic application of U.S.S.G. §§ 1B1.10(b)(1)
and 3D1.4 amounted to a denial of due process.” As discussed above, however, Quinn’s
sentence modification was performed fairly and correctly. See United States v. Salerno,
481 U.S. 739, 746 (1987) (noting that procedural due process requires fair
implementation of procedures that result in deprivation of liberty). Amendment 706
benefitted Quinn less than it benefitted other defendants because Quinn was convicted
of multiple crimes, including firearm crimes that the amendment did not affect. We
therefore conclude that Quinn has failed to establish a violation of his rights under the
Due Process Clause of the Fifth Amendment.
No. 08-6217         United States v. Quinn                                      Page 8


                                III.   CONCLUSION

         For all of the reasons set forth above, we AFFIRM the judgment of the district
court.
