                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0550n.06

                                            No. 08-4259
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS                              Aug 10, 2009
                                FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )       ON APPEAL FROM THE
                                                  )       UNITED STATES DISTRICT
v.                                                )       COURT FOR THE NORTHERN
                                                  )       DISTRICT OF OHIO
JEREMY LOCKETT,                                   )
                                                  )
       Defendant-Appellant.                       )               OPINION
                                                  )
______________________________                    )


Before: CLAY and SUTTON, Circuit Judges; THAPAR,* District Judge.

       THAPAR, District Judge. Jeremy Lockett pleaded guilty to one count of conspiracy to

possess with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 846 and 841, and one

count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district

court sentenced Lockett to 151 months in prison on the drug charge and 120 months in prison on the

gun charge, both sentences to be served concurrently. After his sentencing, and while he was in

prison, the Sentencing Commission adopted Amendment 706 to the Sentencing Guidelines, effective

November 1, 2007, which lowered the sentencing ranges that applied to most crack cocaine offenses.

Following this amendment, Lockett filed a motion for a sentence reduction under 18 U.S.C. §

3582(c)(2), which the district court denied. He now appeals on the basis that the district court



       *
       The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
abused its discretion by denying his motion. He is incorrect.

       First, the district court did not sentence Lockett under the crack cocaine guideline, U.S.S.G.

§ 2D1.1. Rather, it sentenced him under U.S.S.G. § 4B1.1, the career offender guideline, due to the

fact that he had previously been convicted of felony assault with intent to do great bodily harm in

1998 and four counts of trafficking in drugs in 2002. Consequently, Amendment 706, which

amended § 2D1.1 but not § 4B1.1, has no effect on the ultimate sentencing range imposed on

Lockett. United States v. Perdue, __ F.3d __, No. 08-4358, 2009 WL 2015242, at *3-4 (6th Cir.

July 14, 2009) (citing United States v. Leasure, No. 07-6125, 2009 WL 1546370, at *7 (6th Cir. June

3, 2009); United States v. Alexander, 543 F.3d 819, 825 (6th Cir. 2008)). Therefore, he is not

entitled to a reduction of his sentence on the basis of Amendment 706. As a result, § 3582(c)(2) does

not authorize a reduction in Lockett’s sentence. See U.S.S.G. § 1B1.10(a)(2)(B) (noting that §

3582(c)(2) does not authorize a sentence reduction if the relevant amendment “does not have the

effect of lowering the defendant’s applicable guideline range”).

       Moreover, contrary to Lockett’s assertion, whether guideline provisions limiting a district

court’s discretion to reduce a sentence, such as § 1B1.10, are constitutional under Booker is not at

issue here since under the plain language of § 3582(c)(2) Lockett is ineligible for a sentencing

reduction. Id. at *4 (“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).”).1


        1
        Lockett also contends that United States v. Ragland, 568 F. Supp. 2d 19, 23-24 (D.D.C.
2008), supports his position that § 1B1.10 cannot limit a sentencing reduction under § 3582 to
two levels. See id. at 23-24 (holding that § 1B1.10 cannot limit a district court’s discretion in re-
sentencing in light of Booker and its progeny). However, Ragland reached the question
regarding the role of Booker in re-sentencing only because the defendant was sentenced based on

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       In the alternative, Lockett asserts that he was not actually sentenced as a career offender since

the district court gave him a five-level reduction pursuant to the government’s § 5K1.1 request. He

argues that, with the § 5K1.1 departure, his sentence is closer to the § 2D1.1 guidelines range for

crack cocaine than the § 4B1.1 guidelines range for career offenders, thereby giving the district court

authority to reduce his sentence. The § 5K1.1 departure, however, did not change the fact that

Lockett was sentenced based on his career offender status—not the amended § 2D1.1 provision. See

United States v. Moore, 541 F.3d 1323, 1329-30 (11th Cir. 2008) (rejecting the argument that

downward departures meant they were not sentenced based on the career offender guidelines ranges).

Further, Lockett cites United States v. Poindexter, 550 F. Supp. 2d 578 (E.D. Penn. 2008), as support

for this argument, even though the sentencing at issue there had material differences. See id. at 580-

81 (holding that a modification was appropriate since the district court did not apply the career

offender provision). The court in Poindexter found that the career offender designation over-

represented the defendant’s total offense level. Id. Thus, the court stated that § 2D1.1 was the basis

for its sentence. Id. at 580 n.4. Like Ragland, Poindexter is inapposite since the district court here

did not find that the career offender designation over-represented Lockett’s total offense level.

Rather, the district court calculated his sentence based on his career offender status, which was

unaffected by Amendment 706.

       Finally, Lockett also appears to argue that even if he was sentenced pursuant to § 4B1.1, his



§ 2D1.1. Id. at 20. Thus, the issue related to the applicability of Booker was presented in
Ragland only after the court determined that the defendant was in fact eligible for a sentencing
reduction. Here, Lockett was ineligible for a sentencing reduction. Hence, Ragland has no effect
on our conclusion. In fact, Ragland explicitly distinguished cases like the present one, where a
court found the defendant ineligible for a sentencing reduction under § 3582(c)(2). See id. at 22
n.4.

                                                  3
sentence was still “based on” § 2D1.1, because the offense level under § 2D1.1 was considered by

the district court and, thus, contributed to his sentence. See § 3582(c)(2) (authorizing a district court

to reduce a sentence where the defendant has been sentenced “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission . . . .”). While he is correct that the court

calculated his offense level under § 2D1.1, it never relied upon that offense level in calculating his

sentence. Instead, the court based his sentence on the offense level under § 4B1.1, which

Amendment 706 did not amend. See United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008)

(“[T]o say that the defendant’s sentence was ‘based on’ the crack cocaine guideline [as opposed to

the career offender guideline] strains credulity. Reaching that result would require us to rewrite

section 3582(c)(2) and, in the bargain, invade Congress’s exclusive preserve.”); Moore, 541 F.3d

at 1327 (finding that, under the plain language of § 3582(c)(2), the amended crack cocaine guideline

played no role in calculating the sentencing range applied to a defendant who was a career offender);

United States v. Thomas, 524 F.3d 889, 889-90 (8th Cir. 2008) (per curiam) (same). Since § 4B1.1

was unmodified, the district court had no authority under § 3582(c)(2) to reduce Lockett’s sentence.

        Because the crack cocaine amendments did not affect Lockett's sentencing range, the district

court was correct in denying Lockett's motion for a sentence reduction. We AFFIRM the judgment

of the district court.




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