               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0433n.06

                                        Case No. 15-6240
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                         Jul 29, 2016
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk



UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff – Appellee,                        )
                                                    )      ON APPEAL FROM THE UNITED
v.                                                  )      STATES DISTRICT COURT FOR
                                                    )      THE WESTERN DISTRICT OF
COREY FERGUSON,                                     )      KENTUCKY
                                                    )
       Defendant – Appellant.                       )
                                                    )      OPINION
                                                    )


BEFORE: SUTTON, GRIFFIN, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. Corey Ferguson appeals the district

court’s denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).

Ferguson essentially argues that he is eligible for a sentence reduction based on Amendment 782

to the United States Sentencing Guidelines. However, the district court sentenced Ferguson

based on the career offender Guidelines, which are not subject to Amendment 782. Thus, we

AFFIRM the district court’s judgment.

                                               I.

       On August 15, 1991, Corey James Ferguson, then 20 years old, sold a one-eighth ounce

bag of cocaine to a confidential informant. When police later arrested Ferguson, they found drug

paraphernalia during a search of his apartment. As a result, on January 17, 1992, Ferguson
Case No. 15-6240, United States v. Ferguson


pleaded guilty in state court to trafficking in a controlled substance. He received a five-year

suspended sentence and was placed on supervised probation.

       Three years later, Ferguson was pulled over for a routine traffic violation. Ferguson

consented to a search of his car, and police found a large amount of cocaine under the passenger

seat. Based on that discovery, on August 31, 1995, Ferguson again pleaded guilty in state court

to trafficking in a controlled substance. He received an eight-year sentence, but he was paroled

after almost three years’ imprisonment.

       In 2005, law enforcement officials began investigating drug-trafficking activities in

Bowling Green, Kentucky. That investigation yielded evidence that Ferguson was a major

supplier to the Bowling Green area. Police eventually arrested Ferguson and nine others in

connection to the investigation. While his codefendants all accepted plea agreements, Ferguson

instead opted to go to trial. On June 12, 2007, a jury found Ferguson guilty of (1) conspiracy to

possess with intent to distribute 500 grams or more of cocaine and (2) distributing cocaine.

       Ferguson’s presentence investigation report (“PSR”) indicated a base offense level of

26 and a criminal history category of IV. However, because Ferguson’s two prior felony drug

convictions qualified him for career offender status, the PSR raised his recommended offense

level to 37 and his criminal history category to VI. Ferguson’s resulting sentencing Guidelines

range was 360 months to life imprisonment.

       The district court accepted the PSR’s recommendations.            Ferguson argued for a

downward variance to avoid any disparity in sentencing with his codefendants, which the district

court granted. The district court found Ferguson to be a career offender, but it sentenced him

below the applicable Guidelines range to 300 months of imprisonment.




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Case No. 15-6240, United States v. Ferguson


       In September 2015, Ferguson moved for a sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2), arguing that his age, maturity, model record while in prison, deep remorse, as well

as the declining health of his parents all warranted a sentence reduction.       Ferguson later

supplemented his motion, specifying that he sought a reduction in accordance with Amendment

782. On October 27, 2015, the district court denied Ferguson’s motion. The court explained that

the career offender Guidelines it used to sentence Ferguson were not subject to Amendment 782.

Ferguson appeals.

                                                II.

       A district court may adjust a term of imprisonment if that court based the original

sentence on Guidelines that the Sentencing Commission has subsequently lowered. 18 U.S.C.

§ 3582(c)(2). We review de novo a district court’s determination that it lacks the authority to

reduce a defendant’s sentence under 18 U.S.C. § 3582(c)(2). United States v. Riley, 726 F.3d

756, 758 (6th Cir. 2013) (labeling such a question as one of law).

                                                A.

       In 1984, as part of the Comprehensive Crime Control Act, Congress passed the

Sentencing Reform Act. Pub. L. No. 98-473, ch. II (1984). The statute created the United States

Sentencing Commission, an agency of the judicial branch responsible for setting criminal

Sentencing Guidelines. See generally Mistretta v. United States, 488 U.S. 361, 363-70 (1989)

(discussing the background, purpose, and operation of the Act and the Commission). Congress

required “that the guidelines specify a sentence to a term of imprisonment at or near the

maximum term authorized” for a defendant found guilty of a crime of violence or drug

trafficking when he had two or more prior felony convictions for crimes of violence and/or drug

trafficking. United States v. Tanner, 888 F.2d 1392 (6th Cir. 1989); see 28 U.S.C. § 991. The


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Case No. 15-6240, United States v. Ferguson


Commission complied with Congress’s mandate by promulgating the career offender guidelines

under USSG § 4B1.1.

       Two years later, Congress passed the Anti-Drug Abuse Act of 1986, which set penalties

for crimes involving the sale or manufacture of crack cocaine one hundred times higher than for

equivalent crimes involving powder cocaine. See Kimbrough v. United States, 552 U.S. 85, 95–

96 (2007). In 2010, Congress reduced this discrepancy in the Fair Sentencing Act, which

lowered the crack/powder cocaine sentencing ratio from 100:1 to 18:1. USSG § 2D1.1; United

States v. Jackson, 678 F.3d 442, 443 (6th Cir. 2012).

       In 2014, the Commission passed Amendment 782, which lowered the base offense level

for most drug trafficking crimes, and Amendment 788, which made Amendment 782 retroactive.

United States v. Lucas, 636 F. App’x 296, 297–98 (6th Cir. 2016). The Sentencing Commission

estimated that, subject to a district court’s discretion, approximately 46,000 inmates could

benefit from Amendment 782, with an average sentence reduction of approximately eighteen

percent. USSG Suppl. to App. C. amend. 788 at 87. However, Amendment 782 does not impact

the career offender Guidelines found in USSG § 4B1.1. United States v. Snow, 634 F. App’x

569, 573 (6th Cir. 2016).

       Ferguson asserts that the district court sentenced him under the drug trafficking

Guidelines in USSG § 2D1.1—not the career offender Guidelines in USSG § 4B1.l.                 He

maintains that under Jackson, 678 F.3d at 444, we must look at the actual range the district court

applied and not necessarily what Guidelines the court claimed to apply. Thus, he argues that

because his 300-month sentence falls within the range of his pre-career offender category (292 to




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Case No. 15-6240, United States v. Ferguson


365 months) but outside of the range of his career offender category (360 months to life), he was

clearly not sentenced as a career offender.1 See USSG ch. 5, pt. A (Table).

           On the other hand, the government argues that the district court unmistakably sentenced

Ferguson pursuant to the career offender Guidelines. The government notes that the PSR—

which the court adopted—raised Ferguson’s sentencing Guidelines range based on his career

offender status. Additionally, the government also notes that at sentencing, the district court

expressly stated that Ferguson’s sentence was based on the career offender Guidelines.

           While Ferguson’s supplement of his motion for a reduced sentence in the district court

was “under the authorization of Amendment 782,” R. 638, PageID # 4067, on appeal, he

references only the “crack cocaine guidelines” and the Fair Sentencing Act, the statute that

corresponds to Amendment 750. E.g., Appellant Br. 12 (“In 2010, Congress, recognizing the

inequities of the crack and cocaine powder disparity, passed the Fair Sentencing Act.”).

Amendment 750 affords Ferguson no relief, as it changed the penalties for crack cocaine, and

Ferguson’s offense level was based on trafficking in powder cocaine.

           Further, Ferguson’s reliance on Jackson is misplaced. 678 F.3d at 444. In Jackson, the

district court delayed sentencing, knowing that the Fair Sentencing Act was pending in Congress

and would reduce the defendant’s Guidelines range. Id. at 443. However, after a year of waiting

for Congress to act, the court finally sentenced the defendant. Id. The court acknowledged the

defendant’s career offender status, but because of its abhorrence of the 100:1 crack/powder

cocaine sentencing disparity, the court granted a downward variance. The variance placed the

defendant within the Guidelines range for non-career offenders. Id. at 443–44 (noting that in the

sentencing transcript, the court calls the crack versus powder cocaine disparity “untenable”).



1
    Ferguson assumes an offense level of 37 in his calculations.

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Case No. 15-6240, United States v. Ferguson


Less than three weeks after the sentencing hearing, Congress passed the Fair Sentencing Act. Id.

at 443.

          On direct appeal, we determined that because the district court lowered Jackson’s

sentence based on its disagreement with the drug Guidelines, Jackson’s sentence relied as much

on the drug Guidelines as on the career offender Guidelines. Id. at 445. We remanded for

resentencing in light of the Fair Sentencing Act’s changes to the drug Guidelines. Id. at 445–46.

          Jackson was an atypical case, and we have yet to stretch its holding beyond its unique

context. See, e.g., United States v. Tate, 570 F. App’x 517, 521 (6th Cir. 2014) (“This case is

readily distinguishable from Jackson . . . .”); Riley, 726 F.3d at 761 (“Riley’s case does not come

to us in the unusual procedural posture of Jackson’s . . . .”); United States v. Wherry, 518 F.

App’x 434, 438 (6th Cir. 2013) (“Jackson is a unique case, punctuated by anomalous factual

findings that are not found here.”).

          We decline to apply Jackson here as well. Below, the court granted a downward variance

because it believed the career offender Guidelines were too harsh. Indeed, the court stated,

“[W]hen I talk about [the other] career offenders [codefendants], and that the . . . next [highest]

level I gave I think was 240 months . . . to avoid any disparity, I’m going to give 300 months in

this case.” R. 495, Page ID #3096. Further, while here the court imposed a sentence outside of

the Guidelines, it did not impose a sentence within the drug Guidelines as the court in Jackson

did. But for his career offender status, Ferguson’s offense level would have been 26 and his

criminal history in category IV, which would have yielded a Guidelines range of 92 to 115

months of imprisonment. See USSG ch. 5, pt. A (Table). If Ferguson had been sentenced as he

claims, the court would have made an upward variance, tripling Ferguson’s recommended

sentence. The sentencing transcript does not support that inference.



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Case No. 15-6240, United States v. Ferguson


       Ferguson had two drug convictions before he was twenty four years old. Those two

convictions cost him roughly seventeen years of his life. See USSG ch. 5, pt. A (Table).

Legislation like the Fair Sentencing Act indicates Congress’ will to move away from protracted

prison sentences for nonviolent drug offenses. It demonstrates Congress’ desire to clear prisons

of inmates who committed crimes where “[t]here is no victim . . . other than society at large.”

See USSG Suppl. to App. C. amend. 788 at 87 (indicating “the Commission’s determination that

setting the base offense levels above mandatory minimum penalties is no longer necessary”).

Whether the Guidelines for drug crimes and career offenders are still overzealous, though, is not

at issue in this case. The Sentencing Commission estimated Amendment 782 could benefit

46,000 federal inmates convicted on drug charges. Unfortunately for Corey Ferguson, he is not

among them.

                                              III.

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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