               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 10a0466n.06

                                          No. 09-5651                                  FILED
                                                                                   Aug 02, 2010
                             UNITED STATES COURT OF APPEALS                   LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )        ON APPEAL FROM THE
       Plaintiff-Appellee,                              )        UNITED STATES DISTRICT
                                                        )        COURT FOR THE EASTERN
v.                                                      )        DISTRICT OF TENNESSEE
                                                        )
ANTHONY GUDGER,                                         )                          OPINION
                                                        )
       Defendant-Appellant.                             )




BEFORE:        COLE and McKEAGUE, Circuit Judges; and MAYS, District Judge.*

       COLE, Circuit Judge. Defendant-Appellant Anthony Gudger appeals the district court’s

denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Gudger pleaded

guilty to conspiring to distribute crack cocaine. He was subject to a statutory minimum 240-month

prison term, but the district court departed downward from this statutory minimum based on the

assistance Gudger provided to law enforcement officials in prosecuting other drug offenders. The

district court sentenced Gudger to 120 months in prison. Subsequently, Gudger filed a motion for

a sentence reduction based on amendments made to the U.S. Sentencing Guidelines lowering the

sentencing ranges applicable to most crack cocaine offenses. The district court denied the motion.

For the following reasons, we AFFIRM.


       *
       The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District
of Tennessee, sitting by designation.
No. 09-5651
United States v. Gudger

                                       I. BACKGROUND

       On February 26, 2007, pursuant to a written plea agreement, Gudger pleaded guilty to

conspiracy to distribute and to possess with the intent to distribute at least fifty grams of crack

cocaine, in violation of 21 U.S.C. §§ 841 and 846. According to a statement of facts stipulated to

by Gudger and the Government, Gudger took part in a conspiracy to distribute crack cocaine between

January 1, 2001, and May 3, 2006. On March 1, 2006, law enforcement officials intercepted a phone

conversation between Gudger and one of his co-conspirators, Rickey Story, in which Gudger ordered

crack cocaine from Story. Law enforcement agents then observed Gudger arrive at Story’s residence

and depart a few minutes later. As Gudger departed the area, a police officer stopped him for a

traffic violation. The police then employed a narcotics-detection canine to sniff the exterior of

Gudger’s vehicle, which resulted in a positive response. Based on this, the police searched Gudger’s

person and car and discovered 81.3 grams of crack cocaine. As part of the stipulation, Gudger also

acknowledged that he had been convicted on the felony charge of possession of cocaine for resale

in Tennessee state court on October 17, 2000.

       According to the Presentence Investigation Report, to which neither party objected, Gudger’s

conviction corresponded with a base offense level of 32 under the 2006 edition of the U.S.

Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”). However, Gudger’s offense level was

reduced by three levels, to 29, based on his acceptance of responsibility. Gudger’s past convictions

corresponded with a Criminal History Category of III. This, along with his offense level, resulted

in a Guidelines range of 108 to 135 months in prison. However, Gudger was subject to a statutory



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United States v. Gudger

mandatory minimum prison sentence of 240 months because his offense involved fifty grams or

more of crack cocaine and he had a previous felony drug conviction. See 21 U.S.C. § 841(b)(1)(A).

       Prior to his sentencing, and pursuant to his written plea agreement, Gudger provided law

enforcement officials with assistance in prosecuting other individuals for distributing crack cocaine.

This included Gudger’s testifying at trial against a number of his co-defendants. Based on this

substantial assistance, the Government filed a motion for a downward departure below the statutory

minimum sentence of 240 months in prison pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1.

       The district court held a sentencing hearing on September 10, 2007. Pursuant to its

downward departure motion, the Government recommended a sentence of 168 months in prison.

The Government reached this recommendation by finding the lowest offense level in the Guidelines

Sentencing Table for a defendant in Criminal History Category III that included within its range

Gudger’s 240-month statutory minimum. This was level 35. The Government then moved

downward four offense levels to 31, which corresponded with a range of 135 to 168 months, and

recommended a sentence at the top of this range.

       The district court approved of the Government’s departure calculation and stated that it

“establishe[d] a guideline range of 135 to 168 months.” (District Court Record Entry (“R.E.”) 433,

at 13.) However, the court’s departure analysis did not end there. The court acknowledged that

“[o]rdinarily when dealing with a mandatory minimum sentence and a departure below the

mandatory minimum by virtue of [a] government motion for downward departure, [the sentencing

court is] confined in the Sixth Circuit . . . to considering only those factors which relate to [the

defendant’s] assistance to the government.” (Id. at 26.) However, the court concluded that language

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United States v. Gudger

included in Gudger’s written plea agreement permitted the court to consider other factors in

determining the extent to which it would depart downward from the statutory minimum. The court

took note of two provisions included in the plea agreement in particular. In paragraph 8, the

agreement stated that the Government’s filing of a downward departure motion would “allow[] the

district court to impose a sentence which may fall below the minimum mandatory term of

imprisonment or below the sentencing guidelines.” (R.E. 128, at 4 (emphasis added).) Even more

significant in the district court’s perspective was paragraph 7, which stated: “Defendant

acknowledges that the sentencing determination will be based upon the entire scope of defendant’s

criminal conduct, defendant’s criminal history, and pursuant to other factors and guidelines as set

forth in the Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553.” (Id. at 3-4.) The

court found that this language meant that the Government “agree[d] that [the court] could consider

all of the [18 U.S.C. §] 3553(a) factors in arriving at an appropriate sentence.” (R.E. 433, at 27.)

       Before discussing the factors listed in § 3553(a), the court noted that “based upon [the]

granting of the government’s motion, the court has established an advisory guideline sentencing

range of 135 to 168 months in this case.” (Id.) The court also noted that, “except for the minimum

mandatory sentence required by statute, [Gudger’s] range under the current guidelines would be a

range of 108 to 135 months; and after the amendments take effect in November, assuming that they

do . . . . [Gudger’s] guideline range absent the mandatory minimum would reduce at least to a level

of 78 to 97 months . . . .” (Id.) However, the court noted that “Congress has made a policy decision

that people who have a prior felony drug conviction . . . should be subject to a mandatory minimum

sentence.” (Id. at 29.) The court stated that it would “consider the lower guideline ranges that might

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No. 09-5651
United States v. Gudger

be applicable to [Gudger’s] case without the statutory provision,” but found “that those ranges do

not take into account the Congressional policy that repeat drug offenders be punished more

severely.” (Id. at 30.) The court then discussed the § 3553(a) factors, including the seriousness of

Gudger’s offense; his personal history and characteristics; the need for the sentence imposed to

reflect the seriousness of the offense, promote respect for the law, and provide just punishment;

deterrence; Gudger’s need for drug treatment and vocational training; and the need to avoid

sentencing disparities between defendants with similar records found guilty of similar conduct.

Based upon all of these factors, the court concluded that “the 168 month sentence recommended by

the government in this case is a sentence that is greater than necessary to comply with the sentencing

goals established by the Congress” and “the guideline range of 135 to 168 months is a range that is

greater than necessary to impose a sufficient sentence in this case.” (Id. at 36.) The court then

sentenced Gudger to 120 months in prison, stating:

       Because I find that your guideline range absent the enhancement for repeat offender,
       both under current and the guidelines that might take effect in November would be
       considerably lower, because I find that your culpability in this case is considerably
       less than that of Mr. Story, because I find that the government’s motion with respect
       to the two of you in fact creates an unacceptable disparity in this case, but also at the
       same time giving some effect to the congressional policy that repeat drug offenders
       should receive higher sentences, and pursuant to the Sentencing Reform Act of 1984,
       it is the judgment of this court that the defendant, Anthony Gudger, is hereby
       committed to the custody of the Bureau of Prisons to be in prison for a term of 120
       months.

(Id. at 36-37.) The court also imposed a ten-year term of supervised release to follow Gudger’s

prison sentence. Further, the court stated that “[h]ad I been confined to consideration of your

substantial assistance in this case alone, I would have imposed a sentence at the bottom of that


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No. 09-5651
United States v. Gudger

guideline range; in other words, 135 months.” (Id. at 40.) “[S]o that the Court of Appeals will know

clearly what I was thinking, I have found that the 3553(a) factors justify a sentence below that 135

months; and that’s what I’ve imposed here.” (Id.) The court asked both parties if they had any

objections, and each stated that they did not.

       On November 1, 2007, Amendment 706 to the Guidelines went into effect, reducing the base

offense level for most crack cocaine offenses by two levels. See U.S.S.G. supp. to app. C, amend.

706. On March 3, 2008, Amendment 713 went into effect, allowing the changes implemented by

Amendment 706 to take retroactive effect. See U.S.S.G. supp. to app. C, amend. 713.

       On June 2, 2008, Gudger filed a pro se motion pursuant to § 3582(c)(2) to reduce his

sentence based on these Guidelines amendments. The district court denied the motion before any

responsive pleadings were filed. With the help of counsel, Gudger filed a motion for reconsideration

and supplemental argument, and the district court vacated its previous order and reinstated Gudger’s

motion. However, on May 12, 2009, the district court denied the reinstated motion, concluding that

it lacked the authority to reduce Gudger’s sentence. The court stated that “[b]ecause [Gudger] was

sentenced based on the mandatory minimum which applied to his case rather than a guideline range

that was subsequently reduced, Amendment 706 would not have lowered the applicable guideline

range and does not authorize a reduction in defendant’s sentence.” (R.E. 436, at 2.) Gudger appeals

from the district court’s order denying his motion for a sentence reduction.




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No. 09-5651
United States v. Gudger

                                          II. ANALYSIS

A. Standard of Review

        A district court’s decision to modify a sentence under § 3582(c) is discretionary. United

States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010). Therefore, a district court’s decision whether or

not to grant a motion for departure under § 3582(c) is generally reviewed by this Court for abuse of

discretion. Id. However,

        [w]here, as here, the district court does not simply decline to use its authority under
        § 3582(c)(2) but instead rules that it has no authority to reduce the defendant’s
        sentence under the statute, the district court’s conclusion 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). Therefore, we review de novo the

district court’s denial of Gudger’s motion.

B. Motion for a Sentence Reduction

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

States v. Pembrook, No. 08-6452, ___ F.3d ____, 2010 WL 2499656, at *2 (6th Cir. June 11, 2010).

Gudger argues that the district court had the authority to reduce his sentence pursuant to §

3582(c)(2), which states:

        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), . . . the court may reduce the term of
        imprisonment . . . if such a reduction is consistent with applicable policy statements
        issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). The applicable policy statement upon which Gudger relies states in relevant

part:


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No. 09-5651
United States v. Gudger

       (1)     In General.—In a case in which a defendant is serving a term of
               imprisonment, and the guideline range applicable to that defendant has
               subsequently been lowered as a result of an amendment to the Guidelines
               Manual listed in subsection (c) below, the court may reduce the defendant’s
               term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by
               18 U.S.C. § 3582(c)(2), any such reduction in the defendant’s term of
               imprisonment shall be consistent with this policy statement.

       (2)     Exclusions.—A reduction in the defendant’s term of imprisonment is not
               consistent with this policy statement and therefore is not authorized under 18
               U.S.C. § 3582(c)(2) if—

               (A)    none of the amendments listed in subsection (c) is applicable to the
                      defendant; or

               (B)    an amendment listed in subsection (c) does not have the effect of
                      lowering the defendant’s applicable guideline range.

U.S.S.G. § 1B1.10(a). Amendment 706 reduced the base offense levels for most crack cocaine

offenses by two levels. For example, a defendant convicted of a crime involving more than 50 grams

but less than 150 grams of crack cocaine, like Gudger, would have had a base offense level of 32

prior to Amendment 706’s enactment, but now would have a base offense level of 30. Amendment

713 added Amendment 706 to the list of amendments included in subsection (c) of U.S.S.G. §

1B1.10. Therefore, a defendant convicted of a crack cocaine offense may be eligible for a sentence

reduction if these amendments lowered the Guidelines range (1) that the defendant’s sentence was

“based on” under § 3582(c)(2), and (2) that was “applicable to that defendant” under U.S.S.G. §

1B1.10(a)(1). See United States v. Hameed, No. 09-3259, slip op. at 14 (6th Cir. July 26, 2010).

       We conclude that Gudger is not eligible for a sentence reduction under § 3582(c)(2) because

the Guideline range “applicable to” him was not lowered by the crack cocaine amendments.

Amendment 706 did lower the Guidelines range that would have been applicable to Gudger had he

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No. 09-5651
United States v. Gudger

not been subject to the statutory mandatory minimum 240-month prison sentence. However, because

Gudger was subject to the statutory mandatory minimum sentence, the crack cocaine Guidelines

range was not “applicable to” him even though the court departed downward from that minimum and

arrived at a sentence of 120 months, which fell within that range. We previously have held “that the

appropriate starting point for calculating a downward departure under 18 U.S.C. § 3553(e) is the

mandatory minimum sentence itself.” United States v. Stewart, 306 F.3d 295, 332 (6th Cir. 2002).

Further, in determining the extent of a downward departure for substantial assistance under § 3553(e)

and U.S.S.G. § 5K1.1, a district court is permitted to consider “only factors relating to [the]

defendant’s cooperation.” United States v. Bullard, 390 F.3d 413, 416 (6th Cir. 2004) (internal

quotation marks and brackets omitted). Thus, in calculating Gudger’s sentence after granting the

Government’s motion for a downward departure, the district court’s task was to start at the 240-

month statutory minimum and determine the extent to which it was appropriate to depart downward

based solely on the assistance Gudger provided to law enforcement officials in prosecuting others.

Amendment 706 had no effect on Gudger’s statutory minimum sentence of 240 months

imprisonment. Therefore, none of the Guidelines ranges lowered by Amendment 706 were

“applicable to” Gudger.

       Gudger argues that he still is eligible for a sentence reduction under § 3582(c)(2) because,

in calculating the extent of his downward departure, the district court specifically relied upon the

Guidelines range that would have been applicable absent his being subject to the statutory minimum.

Indeed, the sentencing hearing transcript indicates that the district court considered this range and

the § 3553(a) factors in determining Gudger’s sentence. See Hameed, No. 09-3259, slip op. at 7 (“In

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United States v. Gudger

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.” (internal quotation marks

and citation omitted)). However, we need not consider the extent to which this means that Gudger’s

sentence was “based on” a subsequently lowered Guidelines range under § 3582(c)(2) because there

is no question that this range was not “applicable to” Gudger under U.S.S.G. § 1B1.10(a). See

United States v. Doe, 564 F.3d 305, 310 (3d Cir. 2009) (concluding that it was appropriate to

“decline to address the Appellants’ ‘based on’ argument” because they could not satisfy the

“applicable to” requirement of U.S.S.G. § 1B1.10(a)).

       Gudger also argues that requiring a defendant to satisfy the conditions of U.S.S.G. § 1B1.10

in order to become eligible for a sentence reduction under § 3582(c)(2) violates the Supreme Court’s

holdings in United States v. Booker, 543 U.S. 220 (2005), and Kimbrough v. United States, 552 U.S.

85 (2007). This argument fails because § 3582(c)(2) “authorize[s] only a limited adjustment to an

otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, 130

S. Ct. 2683, 2691 (2010). The Supreme Court has concluded that “[g]iven the limited scope and

purpose of § 3582(c)(2), . . . proceedings under that section do not implicate the interests identified

in Booker.” Id. at 2692.

                                        III. CONCLUSION

       Based on the foregoing analysis, we AFFIRM the district court’s denial of Gudger’s motion.




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