                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 10a0146p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                  X
                            Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                   -
                                                   -
                                                   -
                                                        No. 08-1732
            v.
                                                   ,
                                                    >
                                                   -
                         Defendant-Appellant. -
 ERIC J. CURRY,
                                                   -
                                                  N
                     Appeal from the United States District Court
                for the Western District of Michigan at Grand Rapids.
                   No. 04-00119—Gordon J. Quist, District Judge.
                                  Submitted: January 12, 2010
                                                                       *
                            Decided and Filed: February 10, 2010

             Before: BATCHELDER, Chief Judge; SUTTON, Circuit Judge;
                                                    **
                           WISEMAN, District Judge.
                                      _________________
                                           COUNSEL
ON BRIEF: Ray S. Kent, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,
Michigan, for Appellant. Michael L. Schipper, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.




        *
         This decision was originally issued as an “unpublished decision” filed on February 10, 2010.
The court has now designated the opinion as one recommended for full-text publication.
        **
            The Honorable Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle
District of Tennessee, sitting by designation.


                                                 1
No. 08-1732          United States v. Curry                                               Page 2


                                    _________________

                                          OPINION
                                    _________________

        WISEMAN, District Judge. Defendant-Appellant Eric James Curry1 challenges
the district court’s denial of his motion to modify or reduce his sentence pursuant to 18
U.S.C. § 3582(c)(2). He asks that this Court remand his case to the district court with
instructions that his motion be granted. Because the district court properly concluded
that it had the discretion to consider the motion, and did not abuse that discretion in
denying the motion, we affirm.

                                                I.

        An initial indictment was issued June 8, 2004, and a superseding indictment
issued July 15, 2004, charging Curry with being a felon in possession of three different
firearms (Count One); with possession of a certain quantity of crack cocaine (Count
Two); and with being a felon in possession of another firearm (Count Three). (Record
on Appeal (“ROA”) at 41–43.)             Curry entered into a plea agreement with the
Government pursuant to which he pleaded guilty to Count Three of the superseding
indictment in exchange for dismissal of the other two counts. (ROA at 49–55.)

        At sentencing, Curry stipulated that the total offense level indicated in the
Presentence Report (“PSR”) was 27, his criminal history category was III, and the
applicable guideline range was 87–108 months of imprisonment. (Def.’s Sentencing
Mem., ROA at 59.) The PSR recommended a sentence of 102 months of incarceration
plus 3 years of supervised release, but District Judge Gordon J. Quist imposed a sentence
of 87 months imprisonment, at the very bottom of the Sentencing Guidelines range, plus
3 years of supervised release. Judge Quist specifically stated on the record that if the
Guidelines had been advisory rather than mandatory, “then the sentence would be 60
months.” (Id. at 15:15–16.) Judgment was entered on November 19, 2004.


        1
          Curry has legally changed his last name to Curry-El, but the Court will, for purposes of
consistency with the other filings in this matter, continue to refer to him as “Curry.”
No. 08-1732        United States v. Curry                                         Page 3


       Curry promptly filed his Notice of Appeal, and the Sixth Circuit, pursuant to a
joint motion to remand, vacated the sentence and remanded for resentencing in light of
United States v. Booker, 543 U.S. 220 (2005). At Curry’s first resentencing, which took
place October 19, 2005, Judge Quist first noted that he was not bound by his statement
at the earlier sentencing hearing that he would impose a 60-month prison sentence if it
was later determined that the Guidelines were advisory rather than mandatory, and
indicated that he had reconsidered that position. He did, however, state that he would
“depart somewhat from the guidelines,” by just one year (10/19/2005 Resentencing Hr’g
Transcript at 18), and he explained that his decision to do so was based upon his finding
that the defendant was “making a good effort to reform himself, and we don’t see that
very often here.” (Id. at 20.) He reduced the sentence from 87 to 75 months, plus 3
years of supervised release. The amended judgment was entered October 21, 2005.

       Curry appealed that sentence as well, on reasonableness grounds; the Sixth
Circuit affirmed. On February 25, 2008, however, Curry filed a pro se Motion for
Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2), based on the
application of Amendments 706 and 711 to the Sentencing Guidelines (the “Crack
Amendments”), which were made retroactive as of March 3, 2008. (ROA at 125.)
Judge Quist referred this motion to District Judge Robert J. Jonker.

       In response to the motion, the Probation Office prepared a Sentence Modification
Report (“SMR”); both Curry and the Government submitted briefs. The SMR noted that
Curry’s original Sentencing Guidelines range was 87 to 108 months based on an offense
level of 27 and a criminal history category of III. It indicated an amended range of 70
to 87 months based on a revised offense level of 25 and a criminal history category of
III, in recognition of the fact that Curry’s original sentence for being a felon in
possession was impacted by the drug-quantity guidelines, but did not recommend further
reduction of Curry’s sentence, as the sentence he was currently serving fell within the
modified range.

       In his Memorandum in opposition to the SMR, Curry maintained that the SMR,
in failing to recommend a sentence reduction, “ignore[d] the plain language of 18 U.S.C.
No. 08-1732         United States v. Curry                                            Page 4


§ 3582(c)(2) and the U.S. Sentencing Guideline 1B1.10.” (Id. at 132.) He raised
essentially the same arguments he reiterates in his present appeal, as discussed below,
in support of a reduction. The Government argued both that a reduction in sentence
would not be appropriate pursuant to U.S.S.G. § 1B1.10(b)(2)(B), and that, even if Curry
were eligible for a sentence reduction, the court should exercise its discretion to deny the
requested reduction.

        No hearing on the motion for resentencing was conducted. On May 19, 2008,
Judge Jonker entered a very succinct order declining to reduce Curry’s sentence any
further, despite the Crack Cocaine amendments and the consequent reduction in Curry’s
base offense level. (See ROA at 172 (5/19/2008 Order).) It is from that order that
Curry’s present appeal arises.

                                             II.

        Curry raises two distinct arguments in this appeal: first, that the district court
applied an incorrect legal standard in concluding that a further reduction of sentence was
not appropriate, insofar as it failed to recognize that it had the discretion to grant the
motion; and, alternatively, to the extent the district court recognized it had the discretion
to consider the motion, it abused that discretion when it denied the motion without
considering all the relevant sentencing factors when it denied the motion. We consider
each of these arguments in turn.

                                             A.

        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) (citing United
States v. Ross, 245 F.3d 577, 585 (6th Cir. 2001)). Pursuant to 18 U.S.C. § 3582, one
of the authorized exceptions to the rule against modifying a sentence is “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),” in which case a court “may” reduce a prison term “after considering
No. 08-1732         United States v. Curry                                           Page 5


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.” 18 U.S.C. § 3582(c)(2). The statute and the Guidelines policy statements
are read together to mean that a previously imposed sentence may be reduced if the
guideline range originally applicable to the defendant was lowered as a result of a
retroactive amendment listed in § 1B1.10 of the Sentencing Guidelines. U.S.S.G.
§ 1B1.10(a)(1). Amendment 706 to the Sentencing Guidelines, which was made
effective November 1, 2007, reduced the base offense level for most crack offenses.
U.S.S.G., App. C, Amend. 706. Amendment 706 is one of the retroactive amendments
listed in § 1B1.10. United States v. Poole, 538 F.3d 644, 645 (6th Cir. 2008). There is
no dispute that Curry’s sentencing range for his felon-in-possession charge was
computed based upon a cross-reference to the Sentencing Guideline applicable to crack-
cocaine offenses.

       Regardless of a defendant’s eligibility for resentencing, the district court’s
decision to modify a sentence under § 3582(c)(2) is discretionary and, as such, is
reviewed by this Court for abuse of discretion. United States v. Carter, 500 F.3d 486,
490 (6th Cir. 2007). “A district court abuses its discretion when it relies on clearly
erroneous findings of fact, or when it improperly applies the law or uses an erroneous
legal standard.” United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group,
Inc., 400 F.3d 428, 450 (6th Cir. 2005) (quoting Tompkin v. Philip Morris USA, Inc., 362
F.3d 882, 891 (6th Cir. 2004)). If, however, the district court does not simply decline
to use its authority under § 3582(c)(2) 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 for a sentence reduction is a question of law that is reviewed
de novo. United States v. Johnson, 569 F.3d 619, 623 (6th Cir. 2009).

                                             B.

       In the present case, Curry first argues that the district court’s denial of his motion
to modify his sentence should not be reviewed for simple abuse of discretion, because,
he contends, the court’s decision appears to have been unduly influenced by a
No. 08-1732        United States v. Curry                                          Page 6


misapprehension of the policy statement contained in Sentencing Guideline
§ 1B1.10(b)(2)(B). In response, the Government argues that the second sentence of
§ 1B1.10(b)(2)(B) establishes a presumption that a further reduction “would not [have
been] appropriate” in this case because Curry had already received a “non-guidelines
sentence [determined] pursuant to § 3553(a) and Booker.” (Appellee’s Brief at 14.)
Thus, the issue presented here is whether and to what extent the second sentence of
§ 1B1.10(b)(2)(B) may limit a sentencing court’s discretion to resentence a defendant.

       In that regard, as previously indicated, resentencing is authorized under
18 U.S.C. § 3582(c)(2) only if the defendant was originally sentenced “based on a
sentencing range that has subsequently been lowered by the Sentencing Commission.”
If that hurdle is met and the amendment has been made retroactive, the district court has
the discretion to reduce a prison term “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.” 18 U.S.C.
§ 3582(c)(2).

       Sentencing Guideline § 1B1.10 incorporates policy statements that are to be
considered in any resentencing decision. The “policy statement” that has served to cause
confusion in this case states as follows:

       If the original 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, a reduction comparably less than the
       amended guideline range determined under subdivision (1) of this
       subsection may be appropriate. However, if the original term of
       imprisonment constituted a non-guideline sentence determined pursuant
       to 18 U.S.C. 3553(a) and United States v. Booker, 543 U.S. 220 (2005),
       a further reduction generally would not be appropriate.
U.S.S.G. § 1B1.10(b)(2)(B). The parties disagree as to how the first and second
sentences of this provision should be construed in conjunction with the other.

       The Government interprets the first sentence of subsection (B) to refer to
sentences where a “downward departure” expressly authorized under the Guidelines was
granted at the initial sentencing. In making this argument, the Government distinguishes
No. 08-1732             United States v. Curry                                                       Page 7


between departures, still made pursuant to the Guidelines themselves, and a variance
from the Guidelines under Booker. See United States v. Johnson, 544 F.3d 656, 671 n.12
(6th Cir. 2008), cert. denied, 129 S. Ct. 1382 (2009) (“A sentence outside the Guidelines
based on Chapter 5 of the Guidelines is a ‘departure’ or ‘Guideline departure,’ whereas
a sentence outside the Guidelines based on the § 3553(a) factors is a ‘variance’ or ‘non-
Guideline departure.’”), quoted in Appellee’s Brief at 15–16. In this case, Curry
received a sentence that was below his original Guideline range based on Booker. The
Government therefore argues that Curry’s situation is exactly the type described in the
second sentence of § 1B1.10(b)(2)(B) in which a further reduction in sentence would
generally not be appropriate.

         In his reply brief, Curry points out that § 1B1.10(b)(2)(B) itself makes no
mention of either departures or variances and further argues that, post-Booker, there is
no longer any substantive legal distinction between variances and departures for
sentencing purposes. Cf. United States v. Blue, 557 F.3d 682, 685–86 & n.2 (6th Cir.
2009) (noting the waning significance of “the departures described in Chapter 5” of the
Guidelines in light of Booker and observing that the Seventh Circuit has gone so far as
to describe “guideline departures” as “obsolete”), cited in Reply Brief at 5.2
Nonetheless, although the defendant is likely correct that, in the post-Booker age of
sentencing, the distinction between a variance and a departure has become less
significant, this Court cannot read as immaterial the distinction between the situations
described in the first sentence of § 1B1.10(b)(2)(B) and those described in the second
sentence. Other courts, too, have struggled with the distinction, with some appearing to
conclude that in situations described by the second sentence they had no discretion to
resentence. See, e.g., United States v. Sipai, 582 F.3d 994 (9th Cir. 2009) (affirming the
district court’s conclusion that it lacked authority to resentence where the revised
sentence apparently was a variance covered by the second sentence of that provision).

         2
          In United States v. Blue, 557 F.3d 682 (6th Cir. 2009), this Court cited the Seventh Circuit’s
opinion in United States v. Blue, 453 F.3d 948, 952 (7th Cir. 2006), but did not go so far as to agree with
the Seventh Circuit that departures under the Guidelines have been rendered “obsolete” by Booker. Blue,
557 F.3d at 686 n.1 (6th Cir.) (noting that the term “‘[o]bsolete’ may be a bit strong – a departure described
in the Guidelines, though now only advisory, exemplifies a special discretion because it is anticipated by
the Guidelines Commission” (citing Blue, 453 F.3d at 952 (7th Cir.)).
No. 08-1732            United States v. Curry                                                     Page 8


Others have reached the opposite conclusion. See, e.g., United States v. Johnson, 318
Fed. App’x. 127, 129 (3d Cir. 2009) (concluding that the district court had properly
concluded that Guidelines § 1B1.10(b)(2)(B) did not “mandat[e] a specific result”).
District courts within this Circuit have likewise generally concluded that they have
discretion to reduce a sentence which was already the subject of a variance, and have
exercised it to grant further sentence reductions under Amendment 706, where the initial
sentencing used the crack cocaine guidelines and did not incorporate any reduction in
sentence based upon the disparity between crack and powder cocaine sentences. See,
e.g., United States v. Allen, No. 2:05-cr-130, 2009 WL 1585793 (S.D. Ohio June 4,
2009); United States v. Benjamin, No. 3:06-CR-154, 2008 WL 972698 (E.D. Tenn.
April 7, 2008).3

         Despite the confusion surrounding § 1B1.10(b)(2)(B), two things appear to be
clear: (1) Courts are only authorized to reduce sentences that are“based on” a sentencing
range subsequently lowered by an amendment to the Guidelines that has been made
retroactive;4 and (2) the language of the second sentence of § 1B1.10(b)(B) does not
serve to remove the sentencing courts’ discretion to reduce a sentence where the original
sentence was, in fact, “based on” a subsequently lowered guideline range, even if the
sentence originally imposed was below the otherwise-applicable guideline range,
whether pursuant to a departure or a variance. The distinction between a sentence in
which the district court applies a variance from the recommended guideline range based
upon Booker and the § 3553(a) factors but the sentence is nonetheless “based on” the
Guidelines, and one where the sentence is not “based on” the Guidelines at all may


         3
          Other courts have found that where the original sentence already incorporated a variance from
the otherwise applicable Guidelines range based upon the district court’s taking into consideration, under
Booker, the disparity between crack cocaine and powder cocaine sentences prior to the Crack
Amendments’ actually taking effect, further reduction after adoption of the Crack Amendments was not
warranted under § 3582(b)(2). See, e.g., United States v. Reid, 566 F. Supp. 2d 888 (E.D. Wis. 2008).
         4
          The Courts of Appeal are in accord that a sentence reduction is not authorized where the original
sentence was not “based on” a sentencing range that was subsequently lowered. See, e.g., United States
v. Perdue, 572 F.3d 288 (6th Cir. 2009) (affirming the district court’s denial of defendant’s motion for
resentencing in light of the Crack Amendments where defendant was originally sentenced based on the
career-offender guideline and not the crack cocaine guideline); United States v. Caraballo, 552 F.3d 6 (1st
Cir. 2008) (same), cert. denied, 129 S. Ct. 1929 (2009); United States v. Thomas, 524 F.3d 889 (8th Cir.
2008) (per curiam) (same); United States v. Sharkey, 543 F.3d 1236 (10th Cir. 2008) (same); United States
v. Moore, 541 F.3d 1323 (11th Cir. 2008) (same).
No. 08-1732         United States v. Curry                                             Page 9


indeed be subtle. The district courts, however, are fully capable of making that
distinction and determining whether a further reduction is appropriate, regardless of
whether the original sentence incorporated a variance or departure from the Guidelines.

        In light of the foregoing discussion, this Court concludes that the sentencing
court retained the discretion to resentence Curry in this case, because there is no dispute
that the 75-month sentence imposed by Judge Quist at the post-Booker sentencing was
still to some extent “based on” the Guideline pertaining to crack cocaine offenses, and
that Judge Quist did not take into account the disparity between powder and crack
cocaine sentences in imposing the reduced sentence. The next issue, then, is whether the
court recognized that it retained such discretion.

        In that regard, the record is clear that the district court recognized that it did, but
that it exercised that discretion to deny the motion. In the order denying Curry’s motion,
the district court specifically stated that it found “in its discretion, that no reduction in
sentence was warranted on the facts of this case.” (ROA at 172 (5/19/2008 Order).)
Contrary to Curry’s assertions, there is simply no implication that Judge Jonker believed
he lacked the authority further to reduce Curry’s sentence. That conclusion is bolstered
by the Sentence Modification Report, which also indicated that the defendant was
eligible for a reduction but did not recommend a further reduction:

        In this case, a reduction of sentence is consistent with the policy
        statements.
        Because the Court imposed a sentence of 75 months pursuant to a
        variance from the guideline range, the U.S. Probation Office
        recommends no modification of sentence. The Court found that a
        sentence outside the guideline range was warranted, and all statutory
        sentencing factors were considered in choosing the post-Booker sentence
        of imprisonment.

(SMR at 5.) In sum, the district court applied the correct legal standard when it
concluded that it had the discretion to entertain Curry’s motion on the merits.
No. 08-1732        United States v. Curry                                         Page 10


                                            C.

       Curry further argues, however, that the district court abused its discretion by not
providing more specific reasons in support of its denial of the motion for resentencing.
The Court disagrees. Pursuant to 18 U.S.C. § 3582(c)(2), the district court may reduce
a previously imposed sentence if the statutory requirements, discussed above, are met.
Section § 3582 does not create a right to a reduced sentence, however. See U.S.S.G.
§ 1B1.10 cmt. background (noting that a reduction under § 1B1.10 is discretionary and
“does not entitle a defendant to a reduced term of imprisonment as a matter of right”).
When determining whether a defendant should receive a sentence reduction, the district
court must (“shall”) consider both the 18 U.S.C. § 3553(a) factors and “the nature and
seriousness of the danger to any person or the community that may be posed by a
reduction in the defendant’s term of imprisonment,” and “may consider post-sentencing
conduct of the defendant.” U.S.S.G. § 1B1.10 cmt. n. 1(B) (emphasis added). However,
“proceedings under 18 U.S.C. [§] 3582(c)(2) and [§ 1B1.10] do not constitute a full
resentencing of the defendant.” § 1B1.10(a)(3).

       In the present case, the district court did not conduct a hearing on Curry’s
motion, and did not expressly consider all the § 3553 factors that might have been
relevant. Curry argues that the district court abused its discretion in denying the motion
without either specifically articulating the reasons for doing so or identifying factors in
Curry’s particular record that justified the denial. The only case Curry cites in support
of his argument that the lack of specificity constituted an abuse of discretion is United
States v. Williams, 557 F.3d 1254 (11th Cir. 2009). (Appellant’s Brief at 2.) That case,
besides being from the Eleventh Circuit, does not advance Curry’s cause, as it simply
held that while a district court “‘must consider the factors listed in § 3553(a)’ when
determining whether to reduce a defendant’s original sentence . . . [,] the district court
is not required to articulate the applicability of each factor, ‘as long as the record as a
whole demonstrates that the pertinent factors were taken into account by the district
court.’” Williams, 557 F.3d at 1256 (emphasis added) (quoting United States v. Vautier,
No. 08-1732        United States v. Curry                                        Page 11


144 F.3d 756, 762 (11th Cir. 1998) (citing United States v. Eggersdorf, 126 F.3d 1318,
1322 (11th Cir. 1997)).

       In Eggersdorf, the Eleventh Circuit found, in the context of reviewing the denial
of a motion for resentencing under § 3582(c)(2), that the district court’s order, though
short, was “based on the record as a whole” and “enunciated sufficient reasons for its
order denying resentencing.” Eggersdorf, 126 F.3d at 1322. There, although the district
court had not specifically weighed the § 3553(a) factors, the Eleventh Circuit held that
the lower court had not abused its discretion and had provided sufficient reasons for its
decision to deny resentencing, “[e]specially considering that the district court’s final
order specifically referenced the Government’s Opposition, which in turn cited specific
elements that were relevant to the necessary section 3553(a) inquiry and that were
supported by the record.” Id. at 1323.

       The same principles apply here. Clearly, the district court’s order denying
Curry’s motion to resentence was cursory at best. However, as in Eggersdorf, the record
had been amply developed before the resentencing motion at issue here was filed. Judge
Quist had already considered the relevant factors in some depth at the original
sentencing and the first resentencing under Booker, at which time he imposed a (then)
below-guidelines sentence of 75 months. Judge Jonker indicated he had reviewed the
entire record, including the parties’ recommendations, and had considered all the
relevant § 3553(a) factors and the Sentencing Guidelines in making his decision. Under
the circumstances, this Court cannot conclude that he abused his discretion in denying
the defendant’s motion for further modification of his sentence.

                                            III.

       For the reasons articulated herein, we affirm the district court’s denial of the
motion to modify or reduce Curry’s sentence.
