                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0686n.06

                                           No. 09-3752                                 FILED
                                                                                    Nov 04, 2010
                          UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee.                               )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Northern
STACY EUGENE CLEMONS,                                    )   District of Ohio
                                                         )
       Defendant-Appellant,                              )




       Before:        BOGGS, COLE, and CLAY, Circuit Judges

       PER CURIAM. Stacy Clemons appeals the district court’s denial of his motion for a

reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). Clemons is ineligible for a sentence

reduction because he was sentenced as a career offender under U.S.S.G. § 4B1.1, rather than under

§ 2D1.1. The latter was altered when the Sentencing Commission adopted Amendment 706,

reducing the base offense levels for crack cocaine possession, but that reduction does not apply to

career offenders sentenced under § 4B1.1. We therefore affirm the district court’s judgment.

       In February 2005, a federal grand jury indicted Clemons on two counts of possession of

cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a). Clemons pled guilty to

both counts. Under § 2D1.1, Clemons’s base offense level was 26, which created a guidelines range

of 84 to 105 months of imprisonment. But because Clemons was found to be a career offender under

§ 4B1.1, his adjusted offense level was 34, with a criminal history category of V. A three-level
No. 09-3752
United States v. Clemons

reduction for acceptance of responsibility yielded a total offense level of 31 and a guidelines range

of 188 to 235 months, from which the court varied downward to impose a sentence of 120 months.

       In 2008, Clemons filed a motion under 18 U.S.C. § 3582(c)(2), which allows district courts

to reduce a sentence “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 district court found Clemons ineligible for a sentence reduction. Clemons appealed, arguing

alternatively that § 2D1.1 was an “applicable guideline” with respect to his sentence, or that his

sentence was so far outside the career-offender guidelines that he was effectively sentenced under

§ 2D1.1. Clemons further argued that, under United States v. Booker, 543 U.S. 220 (2007), no single

guideline provision can be considered mandatory, and therefore no single provision can be

considered the “applicable guideline.” He acknowledged, however, that in United States v. Perdue,

this court “clearly rejected” these arguments. See 572 F.3d 288, 292-93 (6th Cir. 2009).

       This court reviews a district court’s denial of a motion to modify a sentence under 18 U.S.C.

§ 3582(c)(2) for abuse of discretion. United States v. Pembrook, 609 F.3d 381, 383 (6th Cir. 2010).

A district court abuses its discretion when it relies on clearly erroneous findings of fact, applies the

law improperly, or uses an erroneous legal standard. Ibid.

       No abuse of discretion occurred here. A court may modify a defendant’s sentence only as

authorized by statute. Perdue, 572 F.3d at 290. Relief is not authorized if a sentencing amendment

“does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. §

1B1.10(a)(2)(B). The court may only substitute the amended range, leaving “all other guideline

application decisions unaffected.” Id. § 1B1.10(b)(1); see also Perdue, 572 F.3d at 291. As this

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No. 09-3752
United States v. Clemons

court held in Perdue, Amendment 706, which reduced the base offense level for crack offenses, has

no impact on a sentencing range established under the career-offender guidelines and thus does not

authorize relief to offenders sentenced under those provisions. 572 F.3d at 293.

        Clemons’s alternative arguments fail as well. We held in Pembrook that the term “applicable

guideline range” refers to a defendant’s pre-departure guideline range, not the range toward which

the judge departed. 609 F.3d at 384. Thus, Clemons’s argument that his sentence should be

modified because the sentencing judge was influenced by § 2D1.1 has been rejected by this court.

Finally, the Supreme Court recently confirmed that Booker does not require that the Sentencing

Guidelines be treated as non-binding in sentence-modification proceedings. See Dillon v. United

States, 130 S. Ct. 2683, 2687 (2010). The Court explained that the reduction of “an otherwise final

sentence” is available “only to a limited class of prisoners . . . whose sentence was based on a

sentencing range subsequently lowered by the Commission.” Id. at 2690-91. Because Clemons is

not part of that limited class of prisoners, the district court lacked the power to modify his sentence.

        Because Clemons’s sentencing range was not lowered by amendment, he is ineligible for a

sentence reduction under § 3582(c)(2), and we AFFIRM the district court’s denial of his motion.




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