                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0639n.06

                                            No. 09-2056
                                                                                         FILED
                           UNITED STATES COURT OF APPEALS                             Oct 06, 2010
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )   ON APPEAL FROM THE UNITED
                                                     )   STATES DISTRICT COURT FOR THE
ANGELO CHAMBLISS,                                    )   EASTERN DISTRICT OF MICHIGAN
                                                     )
       Defendant-Appellant.                          )



       Before: MERRITT, ROGERS and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Angelo Chambliss challenges the outcome of his § 3582(c)

sentence-reduction proceeding, which reduced his 600-month sentence to 440 months. Because he

fails to offer a cognizable ground for mandating a still-lower sentence, we affirm.


                                                  I.


       A jury convicted Angelo Chambliss of conspiring to distribute cocaine base, 21 U.S.C.

§§ 846, 841(a)(1), and distributing cocaine base within 1000 feet of a school, 21 U.S.C. §§ 841(a)(1),

860(a). At his 1992 sentencing hearing, the district court calculated a guidelines range of 360

months to life. The court sentenced Chambliss to a 600-month prison term, and we affirmed. See

United States v. Hill, 30 F.3d 48 (6th Cir. 1994).
No. 09-2056
United States v. Chambliss

          At the time, the guidelines included a 100-to-1 ratio for crack to powder cocaine, meaning

that the guidelines treated each gram of crack as 100 grams of powder cocaine. In 2007, the

Sentencing Commission reduced the base offense level associated with crack cocaine, shrinking the

crack-powder ratio in various ways throughout the guidelines. See U.S.S.G. Supp. App. C, amdt.

706 (effective Nov. 1, 2007); U.S.S.G. § 2D1.1(c)(1)-(10). The next year, the Commission made

the amendment retroactive. See U.S.S.G. Supp. App. C, amdt. 713 (effective Mar. 3, 2008).


          Chambliss filed several motions to reduce his sentence under § 3582(c)(2), which allows a

court to reduce a sentence premised on a guideline that the Commission later retroactively reduces.

See 18 U.S.C. § 3582(c)(2). The court held a hearing, calculated a new guidelines range (324–405

months) and reduced Chambliss’s sentence to 440 months. In declining to reduce Chambliss’s

sentence still further, the court cited Chambliss’s criminal history, the fact that he committed these

crimes while on parole and his poor prison-discipline record. Chambliss appealed.


                                                  II.


          We begin by considering our power to entertain this appeal. Although the parties have not

raised the issue, we have an independent obligation to police the bounds of our jurisdiction, even if

it means doing so on our own initiative. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583

(1999).




                                                 -2-
No. 09-2056
United States v. Chambliss

       We may hear appeals from § 3582(c) proceedings if the sentence


       (1) was imposed in violation of law;
       (2) was imposed as a result of an incorrect application of the sentencing guidelines;
       or
       (3) is greater than the sentence specified in the applicable guideline range to the
       extent that the sentence includes a greater fine or term of imprisonment, probation,
       or supervised release than the maximum established in the guideline range, or
       includes a more limiting condition of probation or supervised release under section
       3563(b)(6) or (b)(11) than the maximum established in the guideline range; or
       (4) was imposed for an offense for which there is no sentencing guideline and is
       plainly unreasonable.


18 U.S.C. § 3742(a); see United States v. Bowers, __ F.3d __, 2010 WL 3168260, at *5 (6th Cir.

Aug. 12, 2010). Chambliss’s sentence exceeds the new guidelines range, so § 3742(a)(3) gives us

jurisdiction over this appeal.


                                                 III.


       Chambliss raises two arguments on the merits, both unconvincing.


       As a matter of procedural unreasonableness, he criticizes the court for considering

“unreliable” prior conduct for which he was arrested but not convicted. The problem for Chambliss

is that the government included this information in the original PSR, to which he filed no objections.

He cannot now challenge the district court’s original reliance on this information. See Dillon v.

United States, 130 S. Ct. 2683, 2694 (2010) (correcting original sentencing mistakes is “outside the

scope of the proceeding authorized by § 3582(c)(2)”); cf. U.S.S.G. §§ 4A1.3(a)(2)(D)–(E)

                                                -3-
No. 09-2056
United States v. Chambliss

(permitting sentencing courts to consider conduct not resulting in convictions). Further, even putting

aside the two crimes for which Chambliss was charged and not convicted, a homicide and an assault,

the record shows two convictions for carrying a concealed weapon as well as a history of parole

violations and an escape from state custody. It is certainly not necessary to conclude that the court

relied on the arrests to determine that Chambliss had an extensive criminal history or to choose the

appropriate sentence reduction. The district court specifically disavowed having relied on the arrests

when defense counsel raised the point in the sentence-reduction hearing and pointed instead to

concerns over Chambliss’s post-incarceration conduct. In fact, the judge put such great emphasis

on that conduct that he said he would have been inclined to reduce the sentence further had

Chambliss been a model prisoner.


       Chambliss, it is true, points to one alleged error regarding his post-incarceration record.

During the § 3582(c) proceeding, the district court said that Chambliss “assault[ed] a [prison] guard

without serious injury,” R.270 at 7, yet nothing before the district court, Chambliss argues, indicated

whom he assaulted. Even in original sentencing proceedings, however, we do not punish district

courts for minor omissions or slips of the tongue. And that is all this is, given that Chambliss does

not deny he assaulted someone. Any “error,” if indeed we can call it that, is surely harmless in view

of the reality that no one disputes that Chambliss committed an assault. See United States v. Bacon,

__ F.3d __, 2010 WL 3258559, at *3–4 (6th Cir. Aug. 19, 2010). In its amended resentencing order,

moreover, the court explained its sentence with reference to all of Chambliss’s post-incarceration

conduct—he was insolent, refused to obey an order, possessed a dangerous weapon and assaulted


                                                 -4-
No. 09-2056
United States v. Chambliss

someone without serious injury. Chambliss does not contest any of these findings, and it is clear that

this order, whose only omission is a failure to identify the victim, did not affect the outcome of this

§ 3582(c) proceeding.


       That leaves Chambliss’s substantive-reasonableness claim—that the district court improperly

re-sentenced Chambliss to a term “greater than necessary to abide by the policy statement in

U.S.S.G. § 1B1.10 and goals outlined in 18 U.S.C. § 3553(a).” Chambliss Br. 1. This argument also

fails, because Booker “unreasonableness review . . . does not apply to [§ 3582(c)] proceedings.”

Bowers, 2010 WL 3168260, at *10; see Dillon, 130 S. Ct. at 2692.


       To the extent Chambliss means to argue that the district court abused its discretion, that also

is without merit. Nothing in § 1B1.10 prevents sentencing courts from reducing a defendant’s

sentence to a term greater than the amended guideline range but lower than the original sentence.

Beyond the resentencing floor, district courts have a considerable amount of discretion in § 3582(c)

proceedings: They may choose to deny a defendant’s § 3582(c)(2) motion entirely, see 18 U.S.C.

§ 3582(c)(2); Dillon, 130 S. Ct. at 2692, and they may determine by how much a defendant’s

sentence should be reduced, see U.S.S.G. § 1B1.10.


       The record of the hearing also suggests that the court carefully considered Chambliss’s

position. The court held a hearing, which is not required, United States v. Curry, 606 F.3d 323,

330–31 (6th Cir. 2010), and it considered the positive steps Chambliss took during his incarceration,

completing vocational programs and receiving favorable recommendations from prison supervisors.


                                                 -5-
No. 09-2056
United States v. Chambliss

At the same time, however, the court could not ignore the reality that Chambliss’s disciplinary

infractions while incarcerated weighed against him—Chambliss had incident reports for refusing to

obey an order, possessing a dangerous weapon and assault without serious injury. Under these

circumstances, we cannot say that the extent of the reduced sentence amounted to an abuse of

discretion.


                                              IV.


       For these reasons, we affirm.




                                              -6-
