                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0411n.06

                                           No. 12-5426

                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT                                 Apr 25, 2013
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE
v.                                                   )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE MIDDLE
DAVID SHANNON SCOTT,                                 )       DISTRICT OF TENNESSEE
                                                     )
       Defendant-Appellant.                          )
                                                     )




       BEFORE: COLE and COOK, Circuit Judges; KATZ, District Judge.*


       PER CURIAM. David Shannon Scott appeals the district court’s order denying his petition

for relief under 18 U.S.C. § 3582(c)(2). As set forth below, we affirm.

       In 2007, Scott pleaded guilty to distribution of 50 grams or more of cocaine base, in violation

of 21 U.S.C. § 841(a)(1). At sentencing, the district court found that Scott qualified as a career

offender and calculated his guideline range under the career offender guideline, USSG § 4B1.1, as

262 to 327 months of imprisonment. The district court varied downward from that range pursuant

to 18 U.S.C. § 3553(a) and sentenced Scott to 144 months of imprisonment. In granting a downward

variance, the district court noted that one of Scott’s predicate offenses for career offender status

involved mitigating factors, that he came from a troubled background with no father and a drug-

       *
        The Honorable David A. Katz, Senior United States District Judge for the Northern District
of Ohio, sitting by designation.
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United States v. Scott

addicted mother, that he began using drugs and alcohol at a young age, that his criminal history

points resulted from offenses committed between the ages of nineteen and twenty-one years old, that

he had attempted to obtain an education, and that he was an active father. The district court did not

mention Scott’s guideline range under USSG § 2D1.1, the guideline for drug offenses, or the

sentencing disparity between cocaine and cocaine base.

       Scott subsequently filed a petition for relief under § 3582(c)(2), seeking resentencing based

on subsequent amendments to the guidelines for crack cocaine offenses. In addressing the petition,

the district court noted that it granted a “significant downward variance” from the career offender

range and sentenced Scott to 144 months of imprisonment: “144 months is within the guideline

range for this defendant, had he not been a career offender. Therefore, it seems clear that the

defendant’s sentence was ‘based upon’ the cocaine base guideline, rather than the career offender

guideline.” (R. 69, Page ID # 412 (footnote omitted)). The district court, however, concluded that

it was bound by this court’s holding in United States v. Pembrook, 609 F.3d 381, 383-84 (6th Cir.

2010), that a defendant is eligible for a sentence reduction under § 3582(c)(2) only if a guideline

amendment lowers the defendant’s “applicable guideline range” and that the “applicable guideline

range” is the defendant’s pre-departure guideline range. Because the relevant amendments did not

affect Scott’s career offender range — the applicable guideline range — the district court held that

he was not entitled to a sentence reduction and denied relief. This appeal followed.

       “A district court may modify a defendant’s sentence only as provided by statute.” United

States v. Johnson, 564 F.3d 419, 421 (6th Cir. 2009). Pursuant to § 3582(c)(2), the district court may

reduce a defendant’s sentence if: (1) the defendant’s sentence was “based on a sentencing range that

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United States v. Scott

has subsequently been lowered by the Sentencing Commission” and (2) “such a reduction is

consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(2); see United States v. McClain, 691 F.3d 774, 777 (6th Cir. 2012). We review de novo

a district court’s determination that a defendant is ineligible for a sentence reduction under

§ 3582(c)(2). United States v. Watkins, 625 F.3d 277, 280 (6th Cir. 2010).

       The Sentencing Commission’s policy statement addressing sentence reductions under

§ 3582(c)(2) provides that a reduction is not authorized if the guideline amendment “does not have

the effect of lowering the defendant’s applicable guideline range.” USSG § 1B1.10(a)(2)(B). In

Pembrook, we held that “a defendant’s applicable guideline range for the purposes of U.S.S.G.

§ 1B1.10 is the range that applies before the sentencing court grants any discretionary departures.”

609 F.3d at 387. Here, Scott’s applicable guideline range was the pre-variance career offender range,

which was not lowered by any subsequent amendments.

       Scott contends that he is eligible for a sentence reduction in light of this court’s decision in

United States v. Jackson, 678 F.3d 442 (6th Cir. 2012). The Jackson majority stated that, “[i]f a

sentencing judge, having found a defendant to be a career offender, then decides to sentence

defendant below the range for career offenders and notes his policy disagreement with the crack

cocaine guidelines, ordinary review would say that the sentence was as much ‘based on’ the crack

cocaine guidelines as the career offender guidelines.” Id. at 445. Scott argues that the district court

sentenced him “based on” the cocaine base guideline range. “In determining whether a sentence was

‘based on’ a subsequently lowered guideline range . . . , we look to what the district court actually

said and did at the original sentencing.” United States v. Hameed, 614 F.3d 259, 264 (6th Cir. 2010)

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United States v. Scott

(citations and internal quotations omitted). Nothing in the original sentencing record suggests that

the district court based Scott’s sentence on the cocaine base guideline range. The district court did

not mention that range or any policy disagreement with the cocaine base guideline.

       Moreover, the Jackson decision does not alter our prior decision in Pembrook. See

Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009). The majority in Jackson, which

was a direct appeal and not a § 3582(c)(2) proceeding, did not address Pembrook or the “applicable

guideline range” under USSG § 1B1.10.

       The Supreme Court’s decision in Freeman v. United States, 131 S. Ct. 2685 (2011), does not

help Scott. In Freeman, the Supreme Court addressed whether a defendant who enters into a

Rule 11(c)(1)(C) plea agreement for a particular sentence is eligible for relief under § 3582(c)(2).

According to Justice Sotomayor’s narrower and therefore controlling opinion, “if a (C) agreement

expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term

of imprisonment, and that range is subsequently lowered by the United States Sentencing

Commission, the term of imprisonment is ‘based on’ the range employed and the defendant is

eligible for sentence reduction under § 3582(c)(2).” Freeman, 131 S. Ct. at 2695 (Sotomayor, J.,

concurring in the judgment). Scott did not enter into a plea agreement. In any event, the district

court did not “expressly use” the cocaine base guideline range to establish Scott’s sentence. The

narrow holding of Freeman does not require modification of our decision in Pembrook. See

Rutherford, 575 F.3d at 619.

       For the foregoing reasons, we affirm the district court’s order denying Scott’s petition for

relief under § 3582(c)(2).

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