                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0366n.06

                                            No. 08-2211                                    FILED
                                                                                        Jun 15, 2010
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


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

Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*

       DANNY C. REEVES, District Judge. Defendant-appellant Demondesze Johnson appeals

the district court’s denial of his motion for resentencing under 18 U.S.C. § 3582(c). For the

following reasons, we affirm the district court’s decision.

                                                  I.

       The facts of this case are not in dispute and are set forth in Johnson’s Presentence

Investigation Report. On October 3, 2001, Johnson pled guilty to possession with intent to distribute

approximately four grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). In accordance with

United States Sentencing Guideline (“U.S.S.G.”) § 2D1.2(a)(1), Johnson had a base offense level

of 24. This level was increased two levels for possession of a firearm and reduced three levels for

acceptance of responsibility, for a total offense level of 23. It was further determined that Johnson’s



       *
       The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 08-2211
United States v. Johnson

Criminal History Category was IV. These calculations resulted in a guideline imprisonment range

of 70 to 87 months. However, because Johnson was a career offender under U.S.S.G. § 4B1.1, his

base offense level became 32 and his Criminal History Category was increased to VI. The district

court reduced his total offense level by three, to 29, for his timely acceptance of responsibility. The

resulting guideline range was 151 to 188 months. The district court ultimately sentenced Johnson

to a term of imprisonment of 151 months.

       After Johnson was sentenced, the United States Sentencing Commission adopted

Amendment 706 to the guidelines. The retroactively applicable amendment reduced the base offense

levels in U.S.S.G. § 2D1.1 for the unlawful possession of all but the largest quantities of crack

cocaine. Under U.S.S.G. § 1B1.10, district courts were given the authority to resentence (and

reduce) those previously sentenced for crack-cocaine offenses. Specifically, § 1B1.10(a)(1) states:

       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 . . . , the court may reduce the defendant’s term
       of imprisonment as provided by 18 U.S.C. 3582(c)(2).

U.S.S.G. § 1B1.10(a)(1). However, § 1B1.10(a)(2) contains the following exclusion:

       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 . . . (B) An
       amendment . . . does not have the effect of lowering the defendant’s applicable
       guideline range.

U.S.S.G. § 1B1.10(a)(2).      Johnson filed a motion for resentencing pursuant to 18 U.S.C.

§ 3582(c)(2), arguing that although he was sentenced as a career offender, the district court had the

authority to resentence him because his sentence was based on a crack-cocaine offense.



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No. 08-2211
United States v. Johnson

        The district court heard argument on Johnson’s motion, with Johnson present by

video-teleconference facilities from prison. At the conclusion of the hearing, the district court denied

Johnson’s motion and made the following oral ruling:

        In this particular matter, the Court believes that the defendant, Mr. Johnson, does not
        come under 18 U.S.C. 3582(c) because he was not originally sentenced either for the
        amount or for the drugs, he was sentenced as a career criminal.

        If I were to say that that statute applied, I’d have to — it would be a long stretch,
        number one, but even more importantly, and I wouldn’t mind taking the long stretch,
        it was never — doesn’t appear to be the intention of [C]ongress to open the doors for
        resentencing, though perhaps if I could resentence here, knowing how well he has
        done in prison, he has gotten his [GED] and so forth, I would, certainly I would
        consider the factors of 3553, and so forth, but it doesn’t open the door for me to do
        so unless he comes within the statute. And because of the fact that he was sentenced
        as a career criminal and not because of the drug type or the amount, the door has not
        been opened, and therefore the Court doesn’t believe that he’s eligible for
        resentencing, and the Court will exercise its authority and jurisdiction, should it open
        the door, and so for those reasons I deny the motion.

Johnson filed a timely notice of appeal from the district court’s denial of his motion for resentencing.

                                                  II.

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

v. Perdue, 572 F.3d 288, 290 (6th Cir. 2009) (citing United States v. Ross, 245 F.3d 577, 586 (6th

Cir. 2001) (“The authority of a district court to resentence a defendant is limited by statute”;

resentencing is “expressly prohibit[ed] . . . beyond those exceptions expressly enacted by

Congress.”)). In cases where “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.

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No. 08-2211
United States v. Johnson

2009) (citing United States v. Webb, 565 F.3d 789, 792 (11th Cir. 2009); United States v. Sanchez,

562 F.3d 275, 277-78 & n.4 (3d Cir. 2009); United States v. Fanfan, 558 F.3d 105, 107 (1st Cir.

2009); United States v. Baylor, 556 F.3d 672, 673 (8th Cir. 2009); United States v. Dunphy, 551 F.3d

247, 250 (4th Cir. 2009); United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008)).

       On July 6, 2009, Johnson filed his brief with this Court, contending that the district court

erred when it held that it did not have the authority to reduce his sentence for a crack-cocaine offense

pursuant to 18 U.S.C. § 3582(c)(2) because he was also found to be a career offender under the

guidelines. On July 14, 2009, this Court issued its opinion in Perdue, which is dispositive. See 572

F.3d at 288. In Perdue, the defendant entered a guilty plea to one count of possessing crack cocaine

with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). Id. at 289. He was found to be a

career offender under U.S.S.G. § 4B1.1 and sentenced to 151 months. Id. at 290. Following

sentencing, the Sentencing Commission adopted Amendment 706 to the guidelines. The defendant

filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). Id. The district court

denied the motion, concluding that Amendment 706 did not apply to the defendant because he was

sentenced under the career-offender guidelines. Id. Upon review, the Sixth Circuit affirmed that a

district court has no authority under Amendment 706 to resentence a defendant originally sentenced

as a career offender. See id. at 293 (“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.”).

       Here, as in Perdue, the defendant was sentenced as a career offender under U.S.S.G. § 4B1.1.

The district court denied Johnson’s motion to resentence, concluding that it did not have the

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No. 08-2211
United States v. Johnson

authority to modify the sentence under 18 U.S.C. § 3582(c)(2) because he was properly sentenced

as a career offender. Because the issue and facts of this case mirror Perdue, that decision is

controlling. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (prior

decision by another Sixth Circuit panel “remains controlling authority unless an inconsistent decision

of the United States Supreme Court requires modification of the decision or this Court sitting en

banc overrules the prior decision”). Therefore, the district court’s conclusion that it did not have the

authority to resentence Johnson pursuant to 18 U.S.C. § 3582(c)(2) must be upheld.

                                                  III.

       For the foregoing reasons, we affirm the district court’s decision.




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