                     NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                File Name: 12a0223n.06
                                                                                                            FILED
                                                     No. 10-6107
                                                                                                      Feb 24, 2012
                                 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
PAUL MARRIOTT,                                                     )     THE EASTERN DISTRICT OF
                                                                   )     TENNESSEE
        Defendant-Appellant.                                       )
                                                                   )


Before: SILER and GRIFFIN, Circuit Judges; TARNOW, District Judge.*

        TARNOW, District Judge. Defendant Paul Marriott appeals from the district court’s denial

of his Motion for a Reduction of Sentence. The district court based its denial of Marriott’s motion

on its lack of authority to reduce Marriott’s sentence according to 18 U.S.C. § 3582(c). For the

following reasons, we AFFIRM the district court’s judgment.

                                                           I.

        In 1998, following a jury trial, Appellant was found guilty of (1) conspiracy to manufacture,

distribute, and possess with the intent to distribute a quantity of a mixture of substance containing

cocaine base (crack), in violation of 21 U.S.C. §§ 841(a)(1), 846; (2) aiding and abetting the

manufacture of a mixture of substance containing cocaine base (crack), in violation of 21 U.S.C. §



        *
            The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting
by designation.

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United States v. Marriott


846 and 18 U.S.C. § 2; and (3) aiding and abetting the possession with the intent to distribute

cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2.

Neither the indictment nor the jury verdict specified quantities of drugs.

        The Presentence Investigation Report prepared for the district court opined that the powder

cocaine found during Appellant’s arrest was in the process of being converted into crack cocaine.

Appellant challenged this contention.

        At an evidentiary hearing held to resolve the challenge, the district court accepted the

testimony of a government expert that the conversion process from powder cocaine to crack cocaine

would have yielded somewhere between 52.7 and 66.0 grams of crack cocaine. The district court

found that a base offense level of 32 was appropriate, and that there were no specific adjustments

applicable. Combined with the recommended Criminal History Category of II, Appellant fell within

a sentencing guidelines range of 135 to 168 months. The district court applied the statutory

mandatory minimum term under 21 U.S.C. § 841(b)(1)(A) and sentenced Appellant to twenty years

incarceration.

        After sentencing, Appellant timely appealed his conviction and sentence. This Court

affirmed, United States v. Marriott, 225 F.3d 660 (6th Cir. 2000). Appellant subsequently

challenged his sentence in a Motion to Vacate under 28 U.S.C. § 2255. The district court denied

Appellant’s motion and denied a certificate of appealability. This Court also declined to issue a

certificate of appealability.




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United States v. Marriott


                                                  II.

       Appellant commenced the instant action on March 24, 2008. Appellant moves to reduce his

sentence under 18 U.S.C. § 3582(c) and U.S. Sentencing Guidelines § 1B1.10(a). Appellant argues

that his sentence should be reduced under Amendment 706, which permits a two-level reduction in

the base offense level for many crack-cocaine offenses. The district court found that the retroactive

crack amendment did not apply because Appellant had been sentenced according to a mandatory

minimum and not a guidelines range. The district court therefore found that it lacked the authority

to reduce Appellant’s sentence.

       Appellant filed a motion for reconsideration, arguing that he was eligible for a reduction in

sentence because the twenty-year mandatory minimum should not have been applicable. Appellant

argues that, because the indictment and jury verdict did not specify a particular quantity of drugs, he

in fact had only been convicted of a lesser offense under 21 U.S.C. § 841(b)(1)(C), for which the

mandatory minimum was only 10 years. Appellant asserts that he would therefore have fallen into

the guidelines range of 135 to 168 months, and would be eligible for a reduction under the

retroactive crack amendment. The district court, relying on Dillon v. United States, 130 S. Ct. 2683

(2010), held that it could not consider such an issue under 18 U.S.C. § 3582(c).

       Appellant’s argument proceeds in two parts. First, Appellant argues that, based on the

Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), he should not have been

subject to a mandatory minimum. Second, Appellant argues that because he should not have been




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United States v. Marriott


subject to a mandatory minimum, the district court had authority to reduce his sentence under 18

U.S.C. § 3582(c).

                                                III.

       This Court reviews de novo a district court’s determination that it lacks the authority to

modify a sentence under 18 U.S.C. § 3582(c). See United States v. Hameed, 614 F.3d 259, 262 (6th

Cir. 2010).

                                                IV.

       A district court may modify a previously-imposed sentence only as provided by statute.

United States v. Johnson, 564 F.3d 419, 421 (6th Cir. 2009). “Unless the basis for resentencing falls

within one of the specific categories authorized by section 3582(c), the district court lack[s]

jurisdiction to consider [the defendant’s] request.” United States v. Williams, 607 F.3d 1123, 1125

(6th Cir. 2010) (quoting United States v. Smartt, 129 F.3d 539, 541 (10th Cir. 1997)).

       [I]n 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 court may reduce the term of imprisonment . . . if such a
       reduction is consistent with applicable policy statements issued by the Sentencing
       Commission.

18 U.S.C. § 3582(c)(2).

       Appellant attempts to use § 3582(c) as a vehicle to reargue the propriety of his original

sentence. The Supreme Court has held that “§ 3582(c)(2) does not authorize a sentencing or

resentencing proceeding. Instead, it provides for the modif[ication of] a term of imprisonment by

giving courts the power to reduce an otherwise final sentence in circumstances specified by the


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United States v. Marriott


Commission.” Dillon, 130 S. Ct. at 2690 (internal quotation marks omitted) (alteration in original).

Indeed, “plenary sentencing proceedings are distinct from § 3582(c) sentence reductions.” United

States v. Washington, 584 F.3d 693, 700 (6th Cir. 2009); see also Dillon, 130 S. Ct. at 2692

(distinguishing between 3582(c) hearings and “plenary resentencing proceedings”). Thus, the district

court was correct in its determination that it could not consider Appellant’s Sixth Amendment

arguments concerning drug quantities in a motion brought under 18 U.S.C. § 3582(c)(2).

       Appellant also argues that, because a jury did not determine beyond a reasonable doubt the

amount of drugs upon which his conviction under 21 U.S.C. § 841(b)(1)(A) was based, he should

have fallen in a sentencing guidelines range of 135 to 168 months, based on a lesser conviction under

21 U.S.C. § 841(b)(1)(C). Appellant’s argument fails because his sentence is not “based on a

sentencing range” as required by 18 U.S.C. § 3582(c). Appellant was sentenced according to a

mandatory minimum requirement. In United States v. Johnson, 564 F.3d 419 (6th Cir. 2009), this

Court found that a defendant who had been subject to a mandatory minimum was not sentenced

“based on a sentencing range,” and therefore could not benefit from Amendment 706 and §

3582(c)(2). Id. at 423.

       Because Appellant’s sentence was not based on a sentencing range, we affirm the district

court’s determination that it did not have the authority to reduce Appellant’s sentence under the

terms of 18 U.S.C. § 3582(c) and Amendment 706.

       AFFIRMED.




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