                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0549n.06

                                           No. 09-4035
                                                                                          FILED
                          UNITED STATES COURT OF APPEALS                             Aug 08, 2011
                               FOR THE SIXTH CIRCUIT
                                                                               LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                            )
                                                     )            ON APPEAL FROM THE
        Plaintiff-Appellee,                          )            UNITED STATES DISTRICT
                                                     )            COURT FOR THE NORTHERN
                v.                                   )            DISTRICT OF OHIO
                                                     )
DARRYLE HUNTER, aka Derryle E. Hunter, aka )                      OPINION
Darrell E. Hunter, aka Darryle E. Porter, aka Derryl )
Porter, aka Derryle E. Porter, aka Derryle Hunter    )
                                                     )
        Defendant-Appellant.                         )
___________________________________________ )

Before: WHITE and STRANCH, Circuit Judges, and COHN,* District Judge.

       HELENE N. WHITE, Circuit Judge. Defendant-Appellant Darryle Hunter appeals the

district court’s denial of his motion seeking a sentence modification under 18 U.S.C. § 3582(c)(2).

We AFFIRM.

                                                 I.

       On September 1, 1998, Hunter was indicted on one count of possession with intent to

distribute approximately 5.6 grams of crack cocaine, 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count

I), and one count of being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1) (Count II). On

December 1, 1998, Hunter pleaded guilty to Count I pursuant to a plea agreement with the



       *
       The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.

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United States v. Hunter

Government that provided for the dismissal of Count II. The plea agreement also included

stipulations that Hunter was a career offender within the meaning of U.S. Sentencing Guidelines §

4B1.1, that his base offense level was thirty-four, and that his adjusted base offense level – taking

into account a three-level downward adjustment for acceptance of responsibility – was thirty-one.

       At Hunter’s March 2, 1999 sentencing, the parties agreed that Hunter’s total offense level

was thirty-one and his criminal history category was VI. The resulting Guidelines range was 188 to

235 months’ imprisonment, and the district court sentenced Hunter to 210 months’ imprisonment.

       Almost ten years later, on February 3, 2009, Hunter filed a pro se motion for a sentence

reduction pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 706, which lowered the base

offense levels for crack-cocaine offenses. The government opposed Hunter’s motion, arguing that

Hunter was not eligible for a sentence reduction under § 3582(c)(2) because he was sentenced under

the career-offender Guidelines, which, unlike the crack-cocaine Guidelines, had not been lowered

by the U.S. Sentencing Commission. The district court appointed counsel for Hunter, and on June

17, 2009, counsel filed another motion for a sentence reduction pursuant to § 3582(c)(2), arguing

that although his “initial offense calculation was increased by the career offender enhancement,”

Hunter should nevertheless prevail on his motion because the district court had “expanded discretion

in sentencing under the now advisory sentencing guidelines, and because [his] conviction and

sentence were grounded in a criminal offense involving cocaine base.”

       The district court also granted Hunter leave to file a supplemental brief in support of his

motion, in which he argued for the first time that he was not a career offender because the predicate

offenses underlying his career-offender classification – two burglaries – were related. Hunter argued

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United States v. Hunter

that he was “carrying property taken during the first burglary when caught for the second burglary,

reflecting the fact that the burglaries were part of a single common scheme or plan,” there was no

intervening arrest, he was arrested for both offenses on the same day, and he pleaded guilty of both

offenses and was sentenced on the same day and by the same judge for both offenses.

       On August 13, 2009, the district court denied Hunter’s motion for a sentence reduction,

stating that “[b]ecause [Hunter’s] Guideline range was determined based upon his Career Offender

status rather than the offense level for a violation of 21 U.S.C. § 841, he [was] not eligible for a

reduction.” Hunter timely appealed.

                                                 II.

       Hunter argues that the district court abused its discretion in denying his motion to modify his

sentence because (1) the career-offender classification should not render Hunter ineligible for a

sentence modification in light of the Guidelines’ advisory nature pursuant to United States v. Booker,

543 U.S. 220 (2005); (2) Hunter’s sentence was “based on” an offense involving crack cocaine “even

though the career offender guideline of U.S.S.G. § 4B1.1 also figured into the guideline calculation”;

and, (3) Hunter “was erroneously found to be a career offender at the time of sentencing.” In turn,

the government contends that the district court properly denied Hunter’s motion because “Booker

does not render Hunter eligible for a reduced sentence under § 3582(c)(2),” and Hunter’s “enhanced

offense level [that was based on his career-offender status] . . . remains unchanged by the crack

cocaine amendment.”

       We typically “review[] the denial of a motion to modify a sentence under 18 U.S.C. §

3582(c)(2) under the abuse-of-discretion standard.” United States v. Payton, 617 F.3d 911, 912 (6th

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United States v. Hunter

Cir. 2010) (citations omitted). However, where the district court does not “exercise its discretion

in denying the motion 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 . . . is a

question of law that is reviewed de novo.’” Id. at 913 (citing United States v. Curry, 606 F.3d 323,

327 (6th Cir. 2010) (quoting United States v. Johnson, 569 F.3d 619, 623 (6th Cir. 2009))).

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

States v. Allen, 614 F.3d 253, 256 (6th Cir. 2010) (citation omitted). Section 3582(c)(2) allows a

district court to modify a sentence

        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) . . . 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.

The district court undertakes a two-step inquiry in a proceeding under § 3582(c)(2). See Allen, 614

F.3d at 256. First, the district court must “‘determine the amended guideline range that would have

been applicable to the defendant’ if the amendment had been in effect at the time of the original

sentence, [and in making this determination] . . . ‘substitute only the amendments listed in subsection

(c) for the corresponding guideline provisions that were applied when the defendant was sentenced’

and . . . ‘leave all other guideline application decisions unaffected.’” Id. (citing U.S.S.G. §

1B1.10(b)(1)). If the district court determines that the defendant is eligible for a sentence reduction,

it proceeds to the second step of the inquiry, pursuant to which it “must consider any applicable

factors in § 3553(a) and ‘determine whether, in its discretion, the reduction authorized by reference



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United States v. Hunter

to the policies relevant at step one is warranted in whole or in part under the particular circumstances

of the case.’” Id. at 256-57 (citations omitted).

        Guidelines Amendment 706, enacted November 1, 2007, “amended the Drug Quantity Table

in U.S.S.G. § 2D1.1(c),” and “reduced the sentencing range[s] applicable to all but the largest

quantities of cocaine base.” Payton, 617 F.3d at 912. Amendment 713 made Amendment 706

retroactive. See id. Thus, Hunter would qualify for a sentence reduction under 18 U.S.C. §

3582(c)(2) if he had been convicted of a crack-cocaine offense and sentenced on this basis.

However, Hunter was sentenced as a career offender under § 4B1.1, and we have repeatedly held that

a “defendant convicted of crack-related charges but sentenced as a career offender under U.S.S.G.

§ 4B1.1 is not eligible for a reduction based on Amendment 706.” United States v. Bridgewater, 606

F.3d 258, 260-61 (6th Cir. 2010) (citations omitted); see also United States v. Perdue, 572 F.3d 288,

293 (6th Cir. 2009) (“Because Amendment 706 has no effect on the ultimate sentencing range

imposed on Perdue under the career-offender Guideline, the district court did not err in declining to

grant his motion for a reduction in sentence.”).

        Hunter’s additional argument that, following Booker, all guideline provisions are

discretionary rather than mandatory, and therefore his career-offender status under § 4B1.1 alone

does not control the determination of his sentence, was explicitly rejected by the Supreme Court in

Dillon v. United States, 130 S. Ct. 2683 (2010). Dillon rejected the argument that the interests

identified in Booker require that the Guidelines be treated as advisory in § 3582(c)(2) proceedings.

130 S. Ct. at 2692. (“Given the limited scope and purpose of § 3582(c)(2), . . . proceedings under

that section do not implicate the interests identified in Booker.”).

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United States v. Hunter

       Lastly, we address Hunter’s contention that he was improperly classified as a career offender.

In arguing that his two prior offenses were related, it appears that Hunter is attempting to rely on

Guidelines Amendment 709, effective November 1, 2007, which “altered the way in which the

Guidelines determined whether prior crimes would be treated as single or separate offenses.” United

States v. Horn, 612 F.3d 524, 526 (6th Cir. 2010). Pursuant to this Amendment, “multiple offenses

for which sentences are imposed on the same day are counted as a single offense unless there was

an intervening arrest between the offenses.” Id. However such a consideration “is outside the scope

of a resentencing proceeding under § 3582(c)(2).” Allen, 614 F.3d at 258. According to Dillon,

“[b]y its terms, § 3582(c)(2) does not authorize a sentencing or resentencing proceeding.” 130 S.

Ct. at 2690. “Instead, it permits a sentence reduction within the narrow bounds established by the

Commission.” Id. at 2694. Although Hunter’s prior offenses would likely be counted as a single

offense under Amendment 709, this Amendment was not made retroactive by the Sentencing

Commission, and we have held that district courts lack authority to resentence defendants under this

Amendment. See Horn, 612 F.3d at 525.

       Because the district court did not err in denying Hunter’s motion for a sentence modification

under § 3582(c)(2), we AFFIRM.




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