                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0842n.06

                                           No. 09-4003


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                         FILED
UNITED STATES OF AMERICA,                                                           Dec 15, 2011
                                                                              LEONARD GREEN, Clerk
       Plaintiff - Appellee,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
DONTEZ JOHNSON,                                      NORTHERN DISTRICT OF OHIO

       Defendant - Appellant.

                                               /



BEFORE:        MARTIN, CLAY, and WHITE, Circuit Judges.

       CLAY, Circuit Judge. Defendant, Dontez Johnson, appeals a district court order denying

his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), on the basis that Johnson was

ineligible for a sentence reduction given his status as a career offender. For the reasons set forth

below, we AFFIRM the district court’s order.

                                        BACKGROUND

       On September 1, 2004, a federal grand jury returned an indictment charging Johnson with

one count of conspiracy to possess with intent to distribute and to distribute cocaine base (“crack-

cocaine”), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. On April 13, 2005, Johnson

pleaded guilty to the charge, pursuant to a written plea agreement.
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        The district court relied on a presentence report to determine Johnson’s applicable sentencing

range under the United States Sentencing Guidelines (the “Guidelines” or “USSG”). The report set

Johnson’s base offense level at 22, but adjusted it to 19 after a reduction for acceptance of

responsibility. Based on Johnson’s convictions for several prior drug trafficking offenses, the district

court adopted the report’s recommendation and deemed Johnson a career offender under Guideline

§ 4B1.1. The career offender provision enhanced Johnson’s offense level to 32. Applying the

acceptance of responsibility reduction, Johnson’s total offense level was set at 29. At sentencing,

the court granted the government’s substantial assistance motion and further reduced Johnson’s

offense level to 24. Combined with a criminal history category of VI, the resulting Guidelines range

was 100 to 125 months. On July 15, 2005, the district court sentenced Johnson within the

Guidelines to 110 months in prison and three years of supervised release.

        On June 17, 2009, Johnson moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).

The government opposed the motion. On August 13, 2009, the district court summarily denied

Johnson’s motion, reasoning that Johnson was not eligible for a reduction because his sentence was

based on his career offender status.

        Johnson timely appealed on August 17, 2009. Original jurisdiction exists under 18 U.S.C.

§ 3231. Appellate jurisdiction exists under 18 U.S.C. § 3742. See United States v. Bowers, 615 F.3d

715, 722 (6th Cir. 2010).

                                             ANALYSIS

I.      Standard of Review




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        This Court reviews the district court’s denial of a motion to modify a sentence under

§ 3582(c)(2) for abuse of discretion. See United States v. Payton, 617 F.3d 911, 912 (6th Cir. 2010).

        A district court abuses its discretion if it relies on clearly erroneous findings of fact,

improperly applies the law, or uses an erroneous legal standard. United States v. Washington, 584

F.3d 693, 695 (6th Cir. 2009). Where, however, a district court declined to exercise its discretion,

finding instead that it lacked the statutory authority to reduce a defendant’s sentence, the district

court’s determination of ineligibility is reviewed de novo as a question of law. Payton, 617 F.3d at

913.

        Following rulings by the Supreme Court in Dillon v. United States, 130 S. Ct. 2683 (2010),

and by this Circuit in United States v. Bowers, 615 F.3d 715, this Court lacks jurisdiction over

Booker-based arguments challenging a district court’s factual findings or the procedural or

substantive reasonableness of decisions made in a § 3582(c)(2) sentence reduction proceeding. See

id. at 728.

II.     Sentence Reduction under 18 U.S.C. § 3582

        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), a court may modify a term

of imprisonment if a defendant’s sentence was based on a sentencing range that has subsequently

been lowered by the Sentencing Commission and if such a reduction would be consistent with

applicable Guidelines’ policy statements. See 18 U.S.C. § 3582(c)(2); USSG § 1B1.10(a)(1). A

reduction is inconsistent and therefore not authorized where the applicable Guidelines Amendment

does not have the effect of lowering a defendant’s Guideline range. USSG § 1B.10(a)(2)(B), policy


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statement. Eligibility for a § 3582(c)(2) reduction is triggered only by listed Amendments. USSG

§ 1B1.10(a), comment. (n.1).

       Johnson seeks a sentence reduction under Amendment 706 to Guideline § 2D1.1.1

Amendment 706 lowered the base offense level for most crack-cocaine narcotics offenses by two

levels. See USSG Supp. App. C, amend. 706 (effective Nov. 1, 2007) and amend. 713 (declaring

Amendment 706 retroactive effective March 3, 2008). Amendment 706 is a covered amendment

justifying consideration for a § 3582(c)(2) sentence reduction. See USSG § 1B1.10(c).

III.   Application

       On appeal, Johnson reasserts the arguments made to the district court. Johnson argues that

his career offender status did not bar the court from reducing his sentence, because his sentence was

based on his underlying crack-cocaine conviction and not on his career offender status. He

additionally argues the court was not prohibited from considering whether the sentencing factors set

out in 18 U.S.C. § 3553(a) or other discretionary considerations otherwise merited a reduction in his

case, given 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).

       The district court concluded that it lacked the authority to grant Johnson’s sentence reduction

motion because Johnson’s sentence was based on his career offender status, rather than his

underlying narcotics offense. The court was correct in its analysis.




       1
        Although Johnson did not cite to a specific Guidelines Amendment before the district court,
he now clarifies on appeal that he seeks relief under Amendment 706.

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       Although a narcotics-based offense may originally be calculated under § 2D1.1, the

defendant’s sentence is not “based on” that provision if the § 2D1.1 range is subsequently trumped

by another provision of the guidelines. See United States v. Hameed, 614 F.3d 259, 262 (6th Cir.

2010). Accordingly, this Court has consistently maintained that “‘a defendant convicted of crack-

related charges but sentenced as a career offender under Guideline § 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) (quoting United States v. Curry, 606 F.3d 323 (6th Cir. 2010) (citing United States v. Perdue,

572 F.3d 288, 292–93 (6th Cir. 2009))).

       Once the district court determines that the defendant is ineligible for a § 3582(c)(2) sentence

reduction, the Sentencing Commission’s policy statements cabin the court’s discretion to otherwise

grant a reduction, and further inquiry must cease. See Dillon, 130 S. Ct. at 2692. Consequently, the

district court was correct in refusing to consider Johnson’s Booker-based arguments, because

Johnson was ineligible for a sentence reduction, and Booker does not apply to sentence reduction

proceedings.2 See id. To the extent that Johnson reasserts attacks based on the reasonableness of

the district court’s decision, this Court lacks jurisdiction. Bowers, 615 F.3d at 727.

                                          CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s order.




       2
         Because Booker does not apply in the context of sentence reduction proceedings, the district
court also did not err in rejecting Johnson’s related argument that the Guidelines’ policy statements
should have been treated as non-binding. United States v. Hameed, 614 F.3d 259, 267 (6th Cir.
2010).

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