                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 11a0033n.06

                                          No. 09-5743
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS
                                                                                    Jan 13, 2011
                                                                              LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


United States of America,                         )
                                                  )    ON APPEAL FROM THE UNITED
       Plaintiff-Appellee                         )    STATES DISTRICT COURT FOR THE
                                                  )    WESTERN DISTRICT OF KENTUCKY
v.                                                )
                                                  )
Broderick Richardson,                             )
                                                  )
       Defendant-Appellant                        )
                                                  )
                                                  )


BEFORE:        MERRITT, COOK, and WHITE, Circuit Judges


       MERRITT, Circuit Judge. After negotiating a plea agreement with the Government,

Defendant Broderick Richardson pled guilty to two counts of possession with intent to distribute

powder and crack cocaine and was sentenced to twenty years imprisonment. He now challenges the

district court’s denial of his motion for a sentence reduction, which sought to set aside his plea

agreement in light of the United States Sentencing Commission’s retroactive amendment to the

Sentencing Guidelines, intended to reduce disparities in sentences for crack cocaine. Although the

amendment would ordinarily have reduced the advisory Sentencing Guidelines range applicable to

the crack offense with which Richardson was charged, in this particular case the amendment was

irrelevant, as he was sentenced under a statutory mandatory minimum on the basis of a prior felony

drug conviction. Accordingly, we affirm the decision of the district court.
No. 09-5743
United States v. Richardson

       On October 20, 2004, Richardson was arrested for driving without a license; and a search of

his car revealed 92.2 grams of crack cocaine, 474.86 grams of powder cocaine, along with digital

scales, baggies, and $9,146 in cash. He was subsequently charged with possession with intent to

distribute powder and crack cocaine, both in violation of 21 U.S.C. § 841. Richardson had two prior

felony drug convictions in Kentucky state court. In a written plea agreement accepted by the district

court under Federal Rule of Criminal Procedure 11(c)(1)(C), the Government agreed to file a notice,

pursuant to 21 U.S.C. § 851, concerning only one of these prior felony convictions, in exchange for

Richardson’s guilty plea. This notice triggered a statutory mandatory minimum sentence of twenty

years imprisonment, which the district court imposed. 21 U.S.C. § 841(b)(1)(A). Had the

Government noticed the other felony conviction, the applicable mandatory minimum would have

been life imprisonment. Id.

       After the Sentencing Commission’s Amendment 706 to the Guidelines became retroactively

effective on November 1, 2007, and reduced by two the offense level for most crack cocaine

offenses, Richardson moved for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). The

district court ordered the United States Probation Office to prepare a report examining the impact

of the Guidelines amendment on Richardson’s case.           The Probation Office concluded that

Amendment 706 had no impact, for two independent reasons: (1) Richardson was sentenced not

under the Guidelines but under a statutory mandatory minimum imposing a twenty-year sentence for

convictions under 21 U.S.C. § 841 where the defendant has a prior felony drug conviction, and (2)

the sentence was imposed in accordance with a binding Rule 11(c)(1)(C) plea agreement. The

district court, adopting both these rationales, denied Richardson’s motion. He now appeals.

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No. 09-5743
United States v. Richardson

       On appeal, Richardson’s argument almost entirely1 concerns the second of the district court’s

two rationales in rejecting his motion for a sentence reduction: he maintains that a defendant should

not be barred from having his sentence reduced when he pled guilty pursuant to a plea agreement

negotiated in the shadow of a Guidelines range which has since been lowered by a retroactive

amendment. The current state of the law in this Circuit is precisely to the contrary. In United States

v. Peveler, 359 F.3d 369 (6th Cir. 2004), this Court held that a defendant who is sentenced under a

plea agreement pursuant to Rule 11(c)(1)(C) is ineligible for relief in a 18 § U.S.C. 3582(c) motion

to reduce his sentence on the basis of a retroactive amendment to the Guidelines. In a recent

unpublished opinion, we have applied that rule to the particular circumstance of Amendment 706

in two consolidated cases raising what Richardson concedes to be an issue identical to the one in the

instant matter. United States v. Goins, Nos. 08-6374, 09-5047, 2009 WL 4251050 (6th Cir. Nov.

20, 2009), cert. granted sub nom. Freeman v. United States, 2010 WL 1532401 (Sept. 28, 2010).

       The core of Richardson’s argument asks us to reexamine the wisdom of the Peveler rule, and

that rule, at least as applied in the context of crack cocaine sentencing, is currently under review by

the Supreme Court. Nonetheless, the ultimate fate of Peveler is no matter, because of the


       1
         While Richardson does not directly address the independent mandatory minimum rationale
on appeal, he does glancingly suggest that, were we to reverse Peveler and find that Amendment 706
allowed him to set aside the plea agreement, he potentially could receive a sentence less than the
mandatory minimum if he provided “substantial assistance” and the Government moved for a
downward departure on that basis pursuant to 18 U.S.C. § 3553(e). However, he points to no
circumstances which have changed since his plea agreement was initially negotiated that would
indicate a new willingness of the Government to so move, and the Government in its brief makes
no suggestion it would be willing to follow this course. Given this lack of a factual basis, this
argument is simply too speculative to merit our reexamining the Peveler rule in this context, even
assuming we were willing or able to do so.

                                                 -3-
No. 09-5743
United States v. Richardson

independent sufficiency of the other rationale of the district court, which found that the amendment

would be irrelevant in Richardson’s case because he was sentenced as a repeat drug offender under

the statutory mandatory minimum. The law is clear that defendants sentenced under statutory

mandatory minimums are not eligible for 18 U.S.C. § 3582(c) relief. See United States v. Johnson,

564 F.3d 419, 423 (6th Cir. 2009) (affirming a district court’s refusal to grant a sentence reduction

in light of Amendment 706 where the defendant “was not in fact sentenced based on a Guidelines

range that was subsequently reduced” but instead was sentenced “based on the mandatory minimum

imposed by 21 U.S.C. § 841(b)(1)(A)”); U.S.S.G. § 1B1.10, comment 1(A) (“[A] reduction in the

defendant’s term of imprisonment is not authorized under 18 U.S.C. § 3582(c) and is not consistent

with this policy statement if . . . the amendment does not have the effect of lowering the defendant’s

applicable guideline range because of the operation of . . . another statutory provision (e.g., a

statutory mandatory minimum term of imprisonment.”)).

       For the above reasons, the decision of the district court is AFFIRMED.




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