                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 10a0264p.06

                 UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 09-3930
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 TIMIKO PAYTON,
                                                 -
                                                N
                  Appeal from the United States District Court
                   for the Northern District of Ohio at Akron.
              No. 02-00454-001—James S. Gwin, District Judge.
                          Decided and Filed: August 25, 2010
            Before: GUY and GRIFFIN, Circuit Judges; HOOD, District Judge.*

                                   _________________

                                        COUNSEL
ON BRIEF: Andy P. Hart, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Toledo, Ohio, for Appellant. Duane J. Deskins, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee.
                                   _________________

                                         OPINION
                                   _________________

        HOOD, Senior District Judge. Defendant/Appellant, Timiko Payton (“Payton”)
appeals the district court’s denial of a Motion for Sentence Reduction pursuant to
18 U.S.C. § 3582(c)(2). Payton’s Motion was based upon amendments to § 2D1.1(c) of
the U.S. Sentencing Guidelines Manual (“the guidelines”). Because the district court




        *
        The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.


                                              1
No. 09-3930        United States v. Payton                                       Page 2


determined that Payton’s sentence was based upon U.S.S.G § 4B1.1, which applies to
“career offenders,” rather than § 2D1.1, the motion was denied.

       The facts and legal arguments presented herein fail to justify any departure from
this Court’s established authority on this issue.

       For the reasons that follow, the district court’s decision is AFFIRMED.

       I. Factual and Procedural Background

       The facts in this case are not in dispute. On November 6, 2002, in the United
States District Court, Northern District of Ohio, an indictment was returned against
Payton alleging four counts of possessing cocaine base (crack) with the intent to
distribute in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(B). Count 4 specifically
alleged that Payton was in possession of approximately 5.44 grams of cocaine. Payton
entered a plea to Count Four, and the remaining three counts were dismissed.

       The district court relied on the Presentence Report (“PSR”) to determine the
applicable sentencing range pursuant to the guidelines. The applicable version of
U.S.S.G. § 2D1.1 set the base offense level at 26 and a criminal history category of VI.
Consistent with the findings in the PSR, the district court deemed Payton a career
offender under U.S.S.G § 4B1.1, due to two prior felony convictions for controlled
substance offenses. This resulted in a base offense level of 37, rather than the base
offense level of 26, described above. The PSR also contemplated a three-level reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1(b), which resulted in a net
offense level of 34. At sentencing, the Court adopted the presentence findings and
granted the government’s motion for a four-level departure for substantial assistance
under U.S.S.G. § 5K1.1, resulting in a final offense level of 30. This offense level
corresponded to a guideline range of 168-210 months. Payton was sentenced to 168
months imprisonment. Subsequently, Payton filed a motion for sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2) based on amendments to U.S.S.G. § 2D1.1.
Amendment 706, promulgated by the United States Sentencing Commission on
November 1, 2007, which amended the Drug Quantity Table in U.S.S.G. § 2D 1.1(c),
No. 09-3930           United States v. Payton                                                   Page 3


and Amendment 713, enacted on March 3, 2008, which applied to make Amendment
706 retroactive (collectively “crack cocaine amendments”), reduced the sentencing range
applicable to all but the largest quantities of cocaine base. Payton argued that his
sentence should be reduced according to the crack cocaine amendments. Payton did not
challenge his status as a career offender under U.S.S.G. § 4B1.1. Instead, he argued that
the crack cocaine amendments to U.S.S.G. § 2D1.1 allowed him to qualify for a sentence
reduction under 18 U.S.C. § 3582. The district court determined that it did not have
authority to re-sentence Payton under the statute, and denied Payton’s Motion. Payton
timely appealed.

         II. Standard of Review

         Generally, this Court reviews the denial of a motion to modify a sentence under
18 U.S.C. § 3582(c)(2)under the abuse-of-discretion standard. United States v. Perdue,
572 F.2d 288, 290 (6th Cir. 2009) (citing United States v. Wayne Carter, 500 F.3d 486,
490 (6th Cir. 2007)).

         If, however, as in this case, the district court did not exercise its discretion in
denying the motion but “instead concludes that it lacks the authority to reduce a
defendant’s sentence under the statute, the district court’s determination that the
defendant is ineligible. . . is a question of law that is reviewed de novo.” United States
v. Curry, 606 F.3d 323, 327 (6th Cir. 2010) (citing United States v. Johnson, 569 F.3d
619, 623 (6th Cir. 2009)). The question becomes whether the district court lacked
authority to modify the defendant’s sentencSe, and de novo review is properly applied.
United States v. Williams, 607 F.3d 1123, 1125 (6th Cir. 2010).1




         1
          United States v. Bowers, __ F.3d__, No. 08-5595 (6th Cir. August 12, 2010), holds, inter alia,
that the appellate courts do not have jurisdiction to hear Booker unreasonableness allegations in a
proceeding under 18 U.S.C. § 3582(c)(2). Bowers does not apply in situations where, as here, the
defendant does not raise a Booker unreasonableness claim.
No. 09-3930            United States v. Payton                                             Page 4


           III. Discussion

           Pursuant to 18 U.S.C. § 3582(c)(2), a court may modify a term of imprisonment
after it is imposed:

           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 pursuant to 28 U.S.C. 994(o),
           upon motion of the defendant or the Director of the Bureau of Prisons,
           or on its own motion, the court may reduce the term of imprisonment,
           after considering the factors set forth in section 3553(a) to the extent that
           they are applicable, if such a reduction is consistent with applicable
           policy statements issued by the Sentencing Commission.

(emphasis added). Thus, the sentencing range on which the sentence was based must
have been subsequently lowered by the commission, and the reduction of the sentence
must be consistent with applicable policy statements to qualify for a reduction under the
statute.

           The Sentencing Commission issued guidance regarding sentence modifications
pursuant to 18 U.S.C. § 3582(c)(2) in U.S.S.G. § 1B1.10 of the Guidelines. In relevant
part, U.S.S.G. § 1B1.10(2) provides:

           (2) A reduction in the defendant’s term of imprisonment is not consistent
           with this policy statement and therefore is not authorized under 18 U.S.C.
           3582(c)(2) if –
           ...
           (B) an amendment listed in subsection (c) does not have the effect of
           lowering the defendant’s applicable guideline range.

The crack cocaine amendments, which apply to U.S.S.G. § 2D1.1 are contained in
Subsection C to U.S.S.G. § 1B1.10.

           Payton argues that, following the United States Supreme Court decision in
Booker, all guideline provisions are discretionary rather than mandatory. Thus, his
career offender status under U.S.S.G. § 4B1.1 alone does not control the determination
of his sentence. Instead, all factors should be considered equally, including both
U.S.S.G. §§ 4B1.1 and 2D1.1, to determine the application of 18 U.S.C. § 3582. Because
No. 09-3930         United States v. Payton                                        Page 5


the U.S.S.G. § 2D1.1 guideline was a factor in the original sentence, Payton argues, the
subsequent amendment to this guideline is sufficient to qualify him for reduction under
18 U.S.C. § 3582.

       In the alternative, Payton argues that he was not sentenced within the career
offender guideline because the district court ultimately allowed for a seven-level
reduction under U.S.S.G. §§ 3E1.1 and 5K1.1 and, therefore, the sentence was outside
of the “applicable range” language contained in U.S.S.G. § 1B1.10. Consequently,
Payton would qualify for sentence reduction pursuant to U.S.S.G. § 3582.

       Payton concedes that this Court rejected similar arguments in United States v.
Perdue, 572 F.3d 288 (6th Cir. 2009), which held that 18 U.S.C. § 3582 does not apply
to a sentence determined by the application of U.S.S.G. § 4B1.1. The relevant facts of
Perdue are identical to the case at bar. Both Perdue and Payton pleaded guilty to
possessing crack cocaine with the intent to distribute, but the career offender guidelines
were determined to apply. Perdue, 572 F.3d at 289-90. Perdue and Payton ultimately
received downward departures based on U.S.S.G. §§ 3E1.1(b) and 5K1.1. Perdue, 572
F.3d at 290. Payton fails to present any novel arguments on appeal, and there appears
to be no basis for departing from the clear authority outlined by this Court.

       This Court has consistently held that a “defendant convicted of crack-related
charges but sentenced as a career offender under U.S.S.G. § 4B1.1 is not eligible for a
reduction based on Amendment 706.” United States v. Bridgewater, 606 F.3d 258, 260-
1 (6th Cir 2010) (quoting United States v. Curry, 606 F.3d 323(6th Cir. 2010)); See also
United States v. Williams, 607 F.3d 1123 (6th Cir. 2010).

       This Court has also rejected Payton’s alternative argument that the seven-level
downward departure pursuant to U.S.S.G. §§ 3E1.1 and 5K1.1 operates to render him
eligible for a reduced sentence pursuant to 18 U.S.C. § 3582. United States v. Sewell,
No. 09-3408, 2010 WL 2711269 at *3 (6th Cir. July 2, 2010). As in Sewell, the district
court found the career offender guidelines appropriate and the downward departure
afforded to Payton was based on U.S.S.G. § 4B1.1.
No. 09-3930        United States v. Payton                                          Page 6


       Payton argues that the district court must consider § 2D1.1 as part of the
applicable guideline range based on Booker and, therefore, that Payton’s sentence must
be eligible for reduction. However, the language of 18 U.S.C. § 3582(c)(2) controls in
this instance. Perdue, 572 F.3d at 292-293. The plain language of the statute itself
renders Payton’s sentence ineligible for reduction. “Even assuming arguendo that the
Sentencing Commission has no authority to limit the district court’s ability to reduce [the
defendant’s] sentence, Congress may certainly cabin the court’s discretion, and it does
so expressly in the text of 18 U.S.C. § 3582(c)(2).” Perdue, 572 F.3d at 292; United
State v. Gillis, 592 F.3d 696, 700 (6th Cir. 2009) (quoting United States v. Lockett, 341
F. App’x 129, 131(6th Cir. 2009)). The statute only allows for modification where a
defendant’s sentence was “based on a sentencing range that was subsequently lowered
by the Sentencing Commission.” Perdue, 572 F.3d at 292-293. Payton’s sentence was
based on U.S.S.G. § 4B1.1, because that range was used as the starting point for the
calculations by the district court. Because U.S.S.G. § 4B1.1 has not been lowered by the
Sentencing Commission, U.S.S.G. § 3582 does not apply.

       Moreover, the language of 18 U.S.C. § 3582(c)(2) only authorizes a reduction
if it “is consistent with applicable policy statements issued by the Sentencing
Commission.” The Sentencing Commission outlined that a reduction “is not consistent
with this policy statement and is therefore not authorized” if the amendment “does not
have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G.
§ 1B1.10 (a)(2). Application of the crack cocaine amendment would not lower the
calculated range of Payton’s sentence. Therefore, a reduction would not be consistent
with the Sentencing Commission’s policy statements.

       IV. Conclusion

       For the foregoing reasons, the district court’s denial of Payton’s motion for
sentence reduction is AFFIRMED.
