                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0013n.06

                                           No. 09-3049
                                                                                        FILED
                                                                                     Jan 06, 2011
                                                                               LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )    ON APPEAL FROM THE UNITED
                                                         )    STATES DISTRICT COURT FOR
VIRGIL STONE,                                            )    THE NORTHERN DISTRICT OF
                                                         )    OHIO
       Defendant-Appellant.                              )
                                                         )
                                                         )



       Before: KENNEDY, CLAY, and KETHLEDGE, Circuit Judges.


       KETHLEDGE, Circuit Judge. Virgil Stone was convicted of conspiring to possess with

intent to distribute 520 kilograms of cocaine and 492 kilograms of crack. After the government

moved for a Rule 35(b) reduction recognizing Stone’s cooperation, he was sentenced to 293 months’

imprisonment. Several years later, the Sentencing Commission retroactively reduced the base

offense levels for certain crack offenses. Stone then moved for a reduction in his sentence under 18

U.S.C. § 3582(c)(2). The district court denied the motion, concluding that Stone was ineligible for

a reduction.

       Stone now argues that the district court erred because it treated Sentencing Guideline

§ 1B1.10, which governs eligibility for modification, as mandatory rather than discretionary. The

Supreme Court rejected that argument in Dillon v. United States, 130 S. Ct. 2683 (2010), holding
No. 09-3049
United States v. Stone

that the Sixth Amendment does not require courts to treat the Guidelines as merely advisory in

sentence-modification proceedings. See id. at 2692. Consequently, Stone was ineligible for a

reduction if the Commission’s amendments did not lower his applicable guideline range. See 18

U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B).

       The amendments did not lower Stone’s range. Stone’s conviction involved more than 4.5

kilograms of crack—an offense for which the Commission did not reduce the recommended range.

Thus, the district court correctly concluded that Stone was ineligible for a sentence reduction. See

United States v. Watkins, 625 F.3d 277, 282 (6th Cir. 2010).

       We affirm the district court’s order denying Stone’s § 3582(c)(2) motion.




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