                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0374n.06

                                           No. 09-5366                                      FILED
                                                                                        Jun 21, 2010
                          UNITED STATES COURT OF APPEALS                          LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )   ON APPEAL FROM THE UNITED
               v.                                 )   STATES DISTRICT COURT FOR
                                                  )   THE WESTERN DISTRICT OF
LARRY D. MOON,                                    )   KENTUCKY
                                                  )
       Defendant-Appellant.                       )


Before: GIBBONS, and GRIFFIN, Circuit Judges; and DOWD, District Judge.*


David D. Dowd, Jr., District Judge.


                                       I. INTRODUCTION


       The appeal in this case challenges the district court’s refusal to apply the provisions of the

recently adopted Amendment 706 of the United States Sentencing Guidelines to his previously

entered sentence of 360 months.1 The defendant-appellant, Larry Moon, contends that Amendment



       *
         The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern
District of Ohio, sitting by designation.
       1
          Initially, the defendant-appellant was sentenced to imprisonment for a term of life, but
the Sixth Circuit found the evidence insufficient to sustain the conviction on the count that led to
the life sentence and remanded for re-sentencing. The defendant-appellant received a new
sentence of 360 months.

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706 provided authority for the district court to re-sentence him, pursuant to 18 U.S.C. § 3582(c)(2),

to a lower sentence after giving a two level downward adjustment for the calculation of the offense

level as the drug of abuse was crack cocaine. In this case, there is no dispute that the defendant’s

conduct for which he stands convicted involved crack cocaine.


       However, the underlying critical issue is whether the defendant was denied application of

Amendment 706 due to his career offender status. We review the district court’s decision for abuse

of discretion. United States v. Perdue, 572 F.3d 288, 290 (6th Cir. 2009).


                                          II. ANALYSIS


       The Sixth Circuit has repeatedly affirmed district courts which have refused to grant relief

by virtue of Amendment 706 in those situations where the defendant was determined to be a career

offender. See Perdue, 572 F.3d at 293.


       This appeal was filed prior to Perdue. Consequently, the brief in support of the defendant-

appellant Larry Moon raises many issues that are without merit against the backdrop of Perdue.


       Nonetheless, the defendant-appellant Moon seeks reversal of the denial of relief pursuant to

the provisions of Amendment 706 because the district court failed to find that he was a career

offender at the time the district court denied Amendment 706 relief.


       Before denying Moon Amendment 706 relief, the district court referred the issue to the

probation department and received an extensive report which included a copy of the Presentence

Investigation Report in the original case, i.e., case number 3:95CR-00030. That Presentence


                                                 2
Investigation Report listed a 1985 conviction for trafficking in a controlled substance described as

one-half gram of cocaine; a 1986 conviction for trafficking under eight grams, listed as a

misdemeanor; and a 1990 conviction for illegal possession of a controlled substance, described in

the report as cocaine.2


       Section 4B1.1 of the Sentencing Guidelines describes a career offender as:


       A defendant is a career offender if (1) the defendant was at least eighteen years old
       at the time the defendant committed the instant offense of conviction; (2) the instant
       offense of conviction is a felony that is either a crime of violence or a controlled
       substance offense; and (3) the defendant has at least two prior felony convictions of
       either a crime of violence or a controlled substance offense.


       The Court now addresses the argument advanced on appeal before this court to the effect that

the district court in denying Moon’s application for relief under Amendment 706 failed to find that

he was a career offender.


       The district court denied Moon’s motion for reduction of his sentence pursuant to

Amendment 706 on March 26, 2009.


       Its order denying relief stated in part as follows:


       The probation office prepared a memorandum of recalculation which included a
       recommendation that no reduction applied due to the defendant’s status as a career
       offender under application of Section 4B1.1 of the Guidelines. In response, defense
       counsel filed 2 objections and requests a re-sentencing hearing. The Government did
       not object to the probation office’s recommendation.



       2
        The defendant’s Presentence Report lists his date of birth as April 12, 1959, so at the
time of his convictions, as above-described, the defendant was over 18 years of age.

                                                  3
       First, defense counsel asserts the drug quantity attributable to the defendant at
       sentencing, and likewise contained in the memorandum of recalculation, is incorrect.
       Mr. Earhart states the 96 grams of crack cocaine associated with Count 4, which was
       vacated by the 6th Circuit Court of Appeals, should be removed from the drug
       quantity total, thus leaving the defendant accountable for a total of 89.43 grams of
       crack cocaine. Defense counsel argues this reduction in drug quantity would create
       a lower guideline range for imprisonment. However, this argument ignores the fact
       that Mr. Moon was sentenced as a career offender. The career offender enhancement,
       not the drug quantity, controls the ultimate guideline range for imprisonment in this
       case. In other words, even though the crack cocaine amendment reduces the
       defendant’s base offense level for his drug convictions, it does not have the effect of
       lowering his ultimate guideline range for imprisonment because the sentencing range
       is controlled by Mr. Moon’s status as a career offender under operation of Section
       4B1.1 of the Guidelines. Further, the 6th Circuit Court of Appeal’s decision to
       vacate the conviction as to Count 4 has no bearing on Mr. Moon’s qualification as
       a career offender. Therefore, a reduction in sentence is not authorized under 18 USC
       3582(c)(2). Additionally, at the re sentencing hearing neither party objected to the
       career offender enhancement outlined in the presentence report. (Emphasis added).


       Defense counsel’s second objection relates to the defendant’s status as a career
       offender. The defendant maintains at the re- sentencing there was a not a factual
       finding that he was a career offender. Absent a specific finding, the defendant
       objects to being sentenced as a career offender. Mr. Earhart then encourages the
       Court to utilize guideline calculations absent the career offender enhancement, to
       include a reduction under the crack cocaine amendments. To the contrary, as
       evidenced in the Statement of Reasons for the re-sentencing hearing, the Court
       adopted the factual findings and guideline application contained in the presentence
       report except, the Court found that Mr. Moon did not qualify for an acceptance of
       responsibility reduction and determined that the maximum guideline fine amount was
       $12,000,000. As such, the Court adopted the career offender enhancement provided
       in the presentence report’s guideline computations. Again, neither party objected to
       the career offender enhancement contained in the presentence report. This
       enhancement generated the total adjusted offense level of 37 (and criminal history
       VI) which in turn is the basis for the guideline range of imprisonment of 360 months
       to life. As such, the Court finds defense counsel’s second objection without merit.


       The transcript of the sentencing hearing conducted on September 24, 1999 following the

remand from the Sixth Circuit includes a statement by Moon’s counsel, Scott Cox, with respect to

the sentencing considerations which included the following statement:


                                                 4
       “... and two whether he warrants a downward departure for diminished mental
       capacity. I think those are the only two issues, and I do think Mr. Moon is a career
       offender based on the fact that this is a narcotics case that he stands convicted.”


                                       III. CONCLUSION


       The entire record in this case is replete with determinations that Moon is a career offender.

His Presentence Report supports that proposition. His counsel at re-sentencing conceded that point.

The Presentence Report declares Moon to be a career offender and the district court so found in

denying Moon’s motion for an adjustment of the offense level based on Amendment 706.


       The judgment of the district court is AFFIRMED.




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