               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0691n.06

                                          No. 16-1329

                                                                                      FILED
                          UNITED STATES COURT OF APPEALS                        Dec 20, 2016
                               FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.
                                                     ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
RICHARD JULIUS DONALDSON,
                                                     WESTERN DISTRICT OF MICHIGAN
       Defendant-Appellant.




BEFORE:        DAUGHTREY, CLAY, and COOK, Circuit Judges.

       CLAY, Circuit Judge. Defendant, Richard Donaldson, petitioned the district court for a

reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2), which was granted on March 7,

2016. Donaldson now appeals, arguing that the district court abused its discretion when it elected

to reduce his sentence to 151 months rather than his requested term of 101 months. For the

reasons that follow, we AFFIRM the district court’s sentence.

                                       BACKGROUND

       On December 17, 2012, Richard Donaldson agreed to plead guilty to the charge of

conspiracy to possess with intent to distribute a quantity of methamphetamine in violation of

21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). Based on Donaldson’s baseline offense level,

criminal history, and other extenuating circumstances, the probation officer calculated a

guideline range of 292 to 365 months; but because this guideline range exceeded the statutory
                                           No. 16-1329


maximum of twenty years for the underlying offense, the probation officer issued a presentence

report recommending a prison sentence of 240 months. Prior to sentencing, the government

moved for a twelve month reduction based upon Donaldson’s substantial assistance, which was

granted by the district court. Consequently, Donaldson’s initial sentence was 228 months.

          On November 6, 2015, the government moved for an additional seventy-two month

reduction to Donaldson’s sentence pursuant to Rule 35(b) of the Federal Rules of Criminal

Procedure, citing further substantial assistance on his part. The district court also granted this

motion and lowered Donaldson’s sentence to 156 months.

          During Donaldson’s term of incarceration, the United States Sentencing Commission in

November 2014 retroactively amended USSG § 2D1.1(c), which specifies offense levels for drug

quantities. U.S. Sentencing Guidelines Manual, Supplement to Appendix C, Amendment 782

(2014). Donaldson moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) in light of

Amendment 782. On January 4, 2016, the United States Probation Office filed a Sentence

Modification Report for Donaldson affirming his eligibility for the sentence modification and

recommended granting his motion. The report specified that as a consequence of Amendment

782, his initial guideline range should have been set at 235 to 240 months. Assuming a sentence

at the low end of the guideline range, the probation officer proceeded to credit all of Donaldson’s

reductions for substantial assistance, and proposed a new sentence of 151 months. Unsatisfied

with this proposed outcome, Donaldson filed a response requesting a reduction of his sentence to

101 months. The district court considered the recommendation and Donaldson’s argument and

ultimately decided to accept the sentence proposed by the probation officer and only lower

Donaldson’s sentence to 151 months. On March 18, 2016 Donaldson filed a timely notice of

appeal.



                                                2
                                           No. 16-1329


                                          DISCUSSION

                                       Standard of Review

         This Court reviews determinations granting or denying a sentence reduction pursuant to

18 U.S.C. § 3582(c)(2) for abuse of discretion. See United States v. Wilson, 651 F. App’x 489,

490 (6th Cir. 2016) (per curiam); United States v. Washington, 584 F.3d 693, 695 (6th Cir.

2009). A district court abuses its discretion when it relies on clearly erroneous factual findings,

improperly applies the law, uses an erroneous legal standard, or, in rare circumstances, when it

fails to adequately explain its decision. United States v. Howard, 644 F.3d 455, 458–59 (6th Cir.

2011).

                                             Analysis

         Generally speaking, once a court has imposed a sentence, it does not have the authority to

change or modify that sentence unless such authority is expressly granted by statute. United

States v. Houston, 529 F.3d 743, 748 (6th Cir. 2008). Section 3582(c)(2) expressly allows a

reduction “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.”

18 U.S.C. § 3582(c)(2). The Sentencing Commission, however, must first incorporate an

amendment to a guideline sentencing range into its policy statement, found at U.S. Sentencing

Guidelines § 1B1.10, before a court may reduce a term of imprisonment based on that new

guideline range. In the present case, the U.S. Sentencing Commission has amended the

sentencing guidelines to reduce the base offense level related to § 2D1.1(c) of the Guidelines

though Amendment 782. Neither party disputes that Donaldson is eligible for a reduction under

Amendment 782. Therefore, the only issue we must decide on appeal concerns whether or not




                                                 3
                                          No. 16-1329


the district court abused its discretion during the course of calculating Donaldson’s new

sentence.

        The U.S. Sentencing Commission has expressed that an amendment to the Guidelines

“seeks to isolate whatever marginal effect the since-rejected Guideline had on the defendant’s

sentence.” Freeman v. United States, 564 U.S. 522, 530 (2011). Therefore, as we previously

held, when modifying a sentence, “a court should substitute only the retroactive amendment and

leave all original guideline determinations in place.” United States v. Hammond, 712 F.3d 333,

335 (6th Cir. 2013) (per curiam). “The Commission has [further] instructed that, in determining

whether and to what extent a defendant should receive an authorized sentence reduction, the

district court must consider the § 3553(a) factors to the extent that they are applicable; must

consider the impact on public safety; and may consider the defendant’s post-sentencing

conduct.” United States v. Monday, 390 F. App’x 550, 554 (6th Cir. 2010) (emphasis added).

Normally, pursuant to 18 U.S.C. § 3582, a district court is not authorized to reduce a defendant’s

sentence below the amended Guidelines range. USSG § 1B1.10(b)(2)(A); Washington, 584 F.3d

at 701. However, an exception exists for defendants who receive a sentence reduction based on

substantial assistance. USSG § 1B1.10(b)(2)(B) (“If the term of imprisonment imposed was less

than the term of imprisonment provided by the guideline range applicable to the defendant at the

time of sentencing pursuant to a government motion . . . a reduction comparably less than the

amended guideline range determined under subdivision (1) of this subsection may be

appropriate”) (emphasis added). As noted by the commentary to the guidelines, “the sentencing

court has the discretion to determine whether, and to what extent, to reduce a term of

imprisonment under this section.” See USSG § 1B1.10, cmt. n.3 (emphasis added).




                                                4
                                                  No. 16-1329


        The district court reduced Donaldson’s base offense level from thirty-two to thirty, while

preserving every other original guideline determination. The court concluded that a new

guideline range of 235 to 240 months was appropriate and decided—in its discretion, which it

was not obligated to exercise—to set Donaldson’s sentence at the minimum of the range. After

crediting Donaldson’s substantial assistance and reducing his sentence by the same eighty-four

months by which his original sentence was reduced, the district court set his new sentence at

151 months. Donaldson’s new sentence is now five months shorter than his previous sentence.

Nonetheless, Donaldson argues that he is entitled to an additional reduction that lowers his

sentence to 101 months. The basis for such an assertion is unclear. Donaldson appears to argue

that his initial baseline sentence was inappropriately calculated because it failed to properly

account for his cooperation with the government. To the extent we understand his argument to be

that his substantial assistance should have been factored into a reduction of his baseline offense

level rather than as a reduction to his actual sentence pursuant to the government’s Rule 35

motion and request for a reduction, such an argument is foreclosed to him on appeal.1

        A district court does not have the ability, in considering a defendant’s motion for a

reduction pursuant to an amendment in the guidelines, to alter the original sentence in any

manner except by substituting the retroactive amendment and keeping all original guidelines

determinations in place. See Hammond, 712 F.3d at 335. In the present case, Donaldson requests

something the district court lacks the authority to accomplish. And because we see nothing




        1
           Donaldson filed a supplemental brief arguing that the language of § USSG 1B1.10 requires the district
court to apply a methodology that achieves a fundamentally unfair result in his case. He cites no case law for this
proposition. Nor does he articulate a sufficient reason why this Court should reject the policies expressed in the
Guidelines, aside from the fact that his sentence would be shorter under a different methodology.

                                                        5
                                                   No. 16-1329


otherwise improper in the manner by which the district court calculated Donaldson’s sentence,

we conclude that the district court did not abuse its discretion.2

                                                CONCLUSION

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




         2
            In the last paragraph of his brief, Donaldson raises a final argument, stating that the guidelines provide
that a district court should consider the nature and seriousness of the danger to any person or the community that
may be imposed by a reduction, and may consider the post-sentencing conduct of the defendant. Donaldson offers
nothing further by way of his brief that explains his argument. Accordingly, we deem any such argument waived.
See Spirko v. Mitchell, 368 F.3d 603, 612 (6th Cir. 2004); United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)
(“It is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.”) (internal citations and quotations are omitted).

                                                          6
