                           NOT FOR FULL-TEXT PUBLICATION
                                 File Name: 10a0013n.06
                                                                                         FILED
                                           No. 08-4126                               Jan 06, 2010
                                                                               LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                              ON APPEAL FROM THE
v.                                            UNITED STATES DISTRICT
                                              COURT FOR THE NORTHERN
MIKE STUBBS,                                  DISTRICT OF OHIO

            Defendant-Appellant.
___________________________________/

BEFORE:        SUHRHEINRICH, McKEAGUE and KETHLEDGE; Circuit Judges.

       PER CURIAM. Defendant Michael Stubbs appeals from the order and judgment of the

district court denying his motion to modify his sentence pursuant to 18 U.S.C. § 3582(c). Stubbs’s

motion is based on Amendment 706 to the United States Sentencing Guidelines, which, in

conjunction with Amendment 713, retroactively reduces by two points base offense levels applicable

to crack cocaine offenses. The district court denied Stubbs’s motion on the grounds that Stubbs was

sentenced as a career offender and was thus ineligible for relief. We AFFIRM.

       On February 6, 2002, Stubbs was indicted in a 39-count indictment charging Stubbs and 39

codefendants with conspiring to possess with intent to distribute cocaine and cocaine base, in

violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A) (Count 1); and possession with intent to

distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Counts 20, 22, 25, and

33). On April 11, 2002, Stubbs pleaded guilty to Count 1, pursuant to a written plea agreement, and

the remaining counts were dismissed.
       The amount of cocaine base in Count 1 was stipulated by plea agreement as 5 to 20 grams.

At the time of sentencing, U.S.S.G. § 2D1.1 set the base offense level at 26 with a criminal history

category of VI (210 to 262 months). However, consistent with the plea agreement and the

presentence report’s findings, the district court determined that Stubbs was a career offender under

U.S.S.G. § 4B1.1, resulting in an adjusted offense level of 37 and criminal history category VI (360

months to life). Upon the Government’s motion under U.S.S.G. §§ 3 E1.1. and 5K1.1, the court

calculated Stubbs’s total offense level at 28, with a resulting Guidelines range of 140-175 months.

On August 19, 2002, the district court sentenced Stubbs to 140 months’ imprisonment, followed by

four years of supervised release. On July 25, 2008, Stubbs filed a motion for a sentence reduction

under 18 U.S.C. § 3582(c)(2). The district court denied Stubbs’s motion.

       Stubbs argues on appeal that post-Booker1 all guidelines provisions including career offender

status are discretionary. This argument is foreclosed by the recent decision of United States v.

Perdue, 572 F.3d 288 (6th Cir. 2009), reh’g and reh’g en banc denied, September 22, 2009, which

holds that defendants who are sentenced as career offenders are ineligible for sentence modifications

based on Amendment 706. See Perdue, 572 F.3d at 290.2




       1
           United States v. Booker, 543 U.S. 220 (2005).
       2
           In Perdue we rejected the very argument Stubbs makes in this case:

       Even assuming arguendo that the Sentencing Commission has no authority to limit
       the district court’s ability to reduce Perdue’s sentence [post-Booker], Congress may
       certainly cabin the court’s discretion, and it does so expressly in the text of 18 U.S.C.
       § 3582(c)(2).

United States v. Perdue, 572 F.3d 288, 292 (6th Cir. 2009).

                                                  2
       Stubbs argues in the alternative that he was not sentenced within the career offender guideline

because the district court granted him a nine-level downward departure below the range set by §

4B1.1, placing him outside the intended limits of § 1B1.10 and thus rendering him eligible for

modification of sentence under 18 U.S.C. § 3582. We recently rejected a virtually identical

argument in an unpublished decision applying Perdue: “The 5K1.1 departure, however, did not

change the fact that [Stubbs] was sentenced based on his career offender status--not the amended §

2D1.1 provision.” United States v. Lockett, No. 08-4259, 2009 WL 2445733, at *1 (6th Cir. Aug.

10, 2009). See also United States v. Moore, 541 F.3d 1323, 1329-30 (11th Cir. 2008) (rejecting the

argument that downward departure meant that the sentence was not based on the career offender

guidelines; relied on by Lockett court), cert. denied, 129 S. Ct. 1601 (2009) (No. 08-8554). It

should also be noted that, although the Perdue court did not separately address the argument, the

district court in that case also granted the defendant both a three-level reduction based on acceptance

of responsibility under U.S.S.G. § 3E1.1, and a five-level downward departure for substantial

assistance pursuant to U.S.S.G. § 5K1.1. See Perdue, 572 F.3d at 290.

       Accordingly, the order of the district court is AFFIRMED.




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