                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0561n.06
                                                                                            FILED
                                            No. 10-1242                                Aug 11, 2011
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                   ON APPEAL FROM THE
                                       )                   UNITED STATES DISTRICT
v.                                     )                   COURT FOR THE EASTERN
                                       )                   DISTRICT OF MICHIGAN
ERIC LAMAR WILKINS,                    )
                                       )
      Defendant-Appellant.             )                           OPINION
_______________________________________)


Before: MOORE and KETHLEDGE, Circuit Judges; MARBLEY, District Judge.*

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Eric Lamar Wilkins

appeals the denial of his motion for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2)

in light of the crack-cocaine amendments to the United States Sentencing Guidelines (“Guidelines”).

The United States District Court for the Eastern District of Michigan (“district court”) concluded that

Wilkins was ineligible for a reduction in sentence under § 3582(c)(2) because he was sentenced

under the pre-Guidelines law that governed prior to the Sentencing Reform Act of 1984 (“Reform

Act”). The district court also concluded that, even if Wilkins were eligible, a reduction would not

be appropriate in Wilkins’s case. Wilkins challenges both of the district court’s conclusions on

appeal. Because Wilkins is ineligible for a sentence reduction under § 3582(c), we AFFIRM the

district court’s denial of Wilkins’s motion.

       *
        The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 10-1242
United States v. Wilkins


                      I. BACKGROUND & PROCEDURAL HISTORY

       In October 1988, a jury convicted Wilkins of conspiracy to distribute and conspiracy to

possess with intent to distribute crack cocaine and marijuana in violation of 21 U.S.C. §§ 841(a)(1)

and 846. The district court sentenced Wilkins on March 24, 1989, to 405 months of imprisonment,

to be served consecutive to a state sentence that Wilkins was already serving. At sentencing, Wilkins

and the government agreed that Wilkins should be sentenced under the pre-Reform Act sentencing

law because he stopped participating in the conspiracy upon his arrest, which was prior to November

1, 1987, the effective date of the Reform Act. The district court stated that it was sentencing Wilkins

under the pre-Reform Act law but “in accordance with” the Guidelines created by the Reform Act.

R.1522, App. 1 (Sent. Hr’g Tr. at 2–3, 6). The written judgment entered by the district court was

a standard form that stated that “[t]he sentence [was] imposed pursuant to the Sentencing Reform

Act of 1984.” R.1418 (Judgment).

       On March 14, 2008, Wilkins filed a pro se motion to modify his sentence pursuant to

§ 3582(c)(2), requesting resentencing under the lower Guidelines range for crack-cocaine offenses,

UNITED STATES SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) app. C, amend. 706 (effective Nov.

1, 2007), made retroactive by the Sentencing Commission, U.S.S.G. app. C, amend. 713 (effective

Mar. 3, 2008). The district court appointed counsel for Wilkins, and counsel filed a second motion

for sentence reduction. These § 3582(c)(2) motions are the subject of the instant appeal.

       Wilkins, however, also filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241 in the United States District Court for the Southern District of Indiana. He claimed that the


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United States v. Wilkins


Bureau of Prisons (“BOP”) was improperly executing his sentence because it listed Wilkins as

ineligible for parole when calculating his presumptive release date. Wilkins argued that he is eligible

for parole because he was sentenced under the pre-Reform Act sentencing law. On appeal, the

Seventh Circuit agreed, concluding that the sentencing “court unambiguously pronounced sentence

under pre-1987 law” and that this unambiguous oral pronouncement controls over the inconsistent

written judgment. Wilkins-El v. Marberry, 340 F. App’x 320, 323 (7th Cir. 2009) (unpublished

order). The Seventh Circuit remanded the case to the district court in the Southern District of

Indiana and directed that district court “to grant the § 2241 petition and order the BOP to execute

[Wilkins’s] sentence under the law in effect before November 1, 1987.” Id.

       After the Seventh Circuit’s decision, Wilkins, through counsel, filed a supplement to his

§ 3582(c)(2) motion, stating that “[b]ased upon the Seventh Circuit’s decision that [Wilkins’s]

sentence is not a Guideline sentence, he would not be eligible for any relief under the amendments

to the crack cocaine guidelines.” R.1508 (Supplement at 2). Wilkins’s counsel subsequently filed

another supplement to the § 3582(c)(2) motion, arguing that, upon further review, Wilkins is eligible

for a sentence reduction because “the original sentencing court determined [Wilkins’s] sentence by

reference to the Sentencing Guidelines.” R.1531 (2d Supplement at 3–4).

       At a hearing held on February 9, 2010, the district court expressed disagreement with the

Seventh Circuit’s conclusion that Wilkins was sentenced under the pre-1987 law but indicated that,

given the Seventh Circuit’s decision, Wilkins is ineligible for a sentence modification under

§ 3582(c)(2) because his sentence was not “a guideline range sentence.” R.1540 (Hr’g Tr. at 7, 11).


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No. 10-1242
United States v. Wilkins


The district court questioned “how [Wilkins] can have the benefit of both the parole system and the

guideline amendment.” Id. at 4–5. The district court also stated that, even if Wilkins were eligible

for a sentence reduction, he “would be a singularly unappealing candidate for it” and that the district

court “would not find a basis to give him the relief.” Id. at 13–15. The district court subsequently

issued a written order to the same effect, concluding that Wilkins was ineligible for sentence

modification under § 3582(c)(2) because his sentence was governed by pre-Guidelines law and that,

in any event, a reduction was not warranted based on the circumstances of Wilkins’s case. Wilkins

timely appealed the district court’s denial of his motion.

                                          II. ANALYSIS

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

States v. Watkins, 625 F.3d 277, 280 (6th Cir. 2010). “When the [Sentencing] Commission makes

a Guidelines amendment retroactive, 18 U.S.C. § 3582(c)(2) authorizes a district court to reduce an

otherwise final sentence that is based on the amended provision.” Dillon v. United States, --- U.S.

---, 130 S. Ct. 2683, 2688 (2010). The district court must first determine that a reduction would be

consistent with the Commission’s policy statement, U.S.S.G. § 1B1.10. Id. at 2688, 2691. The

district court then must consider whether, and if so, to what extent, a reduction is warranted. Id.

Wilkins challenges the district court’s conclusion at both steps: first, that he is ineligible for a

sentence reduction; and, second, that a reduction is not warranted even if he were eligible. We agree

with the district court at the first step that Wilkins is ineligible for a sentence reduction under

§ 3582(c)(2). We therefore do not address the second step.


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No. 10-1242
United States v. Wilkins


        We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) over Wilkins’s appeal of the district

court’s decision that Wilkins is ineligible for a sentence reduction. See United States v. Drewery,

No. 10-3028, 2011 WL 1327484, at *1 (6th Cir. Apr. 8, 2011) (unpublished decision); United States

v. Payton, 617 F.3d 911, 913 n.1 (6th Cir. 2010). “[T]he district court’s determination that the

defendant is ineligible [for a sentence reduction] is a question of law that is reviewed de novo.”

Payton, 617 F.3d at 913 (internal quotation marks omitted).

        Congress created the sentence-reduction provision in § 3582(c) as part of the Sentencing

Reform Act of 1984, Pub. L. No. 98-473, Title II, Ch. II, § 212(a), 98 Stat. 1837, 1987, 1998–99.

It is well established that the provisions of the Reform Act, which includes § 3582(c)(2), apply only

to offenses committed after the Act’s effective date of November 1, 1987. See Sentencing Act of

1987, Pub. L. No. 100-182, sec. 2, 101 Stat. 1266; Sentencing Reform Act of 1984 § 235(a)(1), 98

Stat. at 2031–32, as amended by Sentencing Reform Amendments Act of 1985, Pub. L. No. 99-217,

sec. 4, 99 Stat. 1728; Gozlon-Peretz v. United States, 498 U.S. 395, 398, 400 n.4 (1991); Prince v.

United States, 46 F.3d 17, 18–19 (6th Cir. 1995); United States v. Stewart, 865 F.2d 115, 118–19

(7th Cir. 1988); United States v. Burgess, 858 F.2d 1512, 1513–14 (11th Cir. 1988).

        Thus, courts that have considered the issue have concluded that defendants who committed

offenses prior to November 1, 1987, and therefore were sentenced under the pre-Reform Act law,

are ineligible for sentence reduction under § 3582(c) because that provision was not in effect for their

sentence. United States v. Brown, 974 F.2d 1346, 1992 WL 208177, at *1 (10th Cir. 1992)

(unpublished table decision); United States v. Hackney, 875 F.2d 868, 1989 WL 56553, at *1 (6th


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No. 10-1242
United States v. Wilkins


Cir. 1989) (unpublished order) (“Neither section 3582(c)(2) nor any other provision of the

Sentencing Reform Act apply to [the defendant] because his offense was committed prior to

November 1, 1987, the effective date of the Act.”); United States v. Watson, 868 F.2d 157, 158 (5th

Cir. 1989) (“hold[ing] that 18 U.S.C. § 3582(c), enacted as a part of the federal sentencing

guidelines, applies only to offenses committed on or after their effective date, November 1, 1987”);

United States v. Argitakos, 862 F.2d 423, 424–25 (2d Cir. 1988) (same).

       The legislative history of the Reform Act supports the conclusion that a defendant sentenced

under the pre-Reform Act law is not subject to the Act’s substantive sentencing provisions:

                The title will apply to any offense or other event occurring on or after the
       effective date. A sentence imposed before the effective date of the guidelines as to
       an individual imprisoned or on probation or parole on that date would not be affected
       by this title. As to an offense committed prior to the effective date, the preexisting
       law will apply to all substantive matters including the imposable sentence. If a trial
       occurs or a sentence is imposed on or after the effective date for an offense
       committed before the effective date, the procedural and administrative provisions of
       the title will apply except to the extent that such provisions are inconsistent with the
       preexisting law.


S. Rep. No. 98-225, at 157 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3372. Defendants

sentenced under the pre-Reform Act sentencing law, however, remain subject to the parole

provisions in Chapter 311 of Title 18 that the Reform Act repealed. Terrell v. United States, 564

F.3d 442, 444–45 (6th Cir. 2009).

       The relevant question, therefore, is whether Wilkins was sentenced under the pre-Reform Act

sentencing law or under the Reform Act. We agree with the Seventh Circuit that Wilkins was

sentenced under the pre-Reform Act law. The district court’s disagreement with the Seventh Circuit

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No. 10-1242
United States v. Wilkins


was based on its conclusion that Wilkins’s conspiracy offense continued past the November 1, 1987

effective date, even if Wilkins was in jail prior to that date, because there is no evidence that he

affirmatively withdrew from the conspiracy. The district court is correct under the case law of this

circuit. See United States v. Chambers, 944 F.2d 1253, 1265, 1269–70 (6th Cir. 1991) (addressing

the issue in the consolidated direct appeal of Wilkins and his co-defendants), cert. denied, 502 U.S.

1112 (1992), 503 U.S. 989 (1992), superseded in part on other grounds by U.S.S.G. § 2D1.5(a);

United States v. Barger, 931 F.2d 359, 364–65 (6th Cir. 1991); United States v. Walton, 908 F.2d

1289, 1299–1300 (6th Cir.), cert. denied, 498 U.S. 906 (1990), 498 U.S. 989 (1990), 498 U.S. 990

(1990). However, the district court’s conclusion that the conspiracy offense spanned the Reform

Act’s effective date means only that Wilkins should have been sentenced under the Reform Act. At

sentencing, the parties agreed that the pre-Reform Act law applied, and, for the reasons explained

by the Seventh Circuit, it is clear that the sentencing judge applied the pre-Reform Act law despite

looking to the Guidelines for help in determining an appropriate sentence and despite its written

judgment. See Wilkins-El, 340 F. App’x at 322–23. Neither Wilkins nor the government appealed

the sentencing judge’s application of the pre-Reform Act sentencing law. Accordingly, although

Wilkins should have been sentenced under the Reform Act, Wilkins in fact was sentenced under the

pre-Reform Act law. Indeed, Wilkins has argued consistently, including in the Seventh Circuit

proceedings, that he was sentenced under the pre-Reform Act law.




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No. 10-1242
United States v. Wilkins


       Because Wilkins was sentenced under the pre-Reform Act law, he is not subject to the

provisions of the Reform Act, which includes the sentence-modification provision in § 3582(c). He

therefore is ineligible for relief under § 3582(c).

                                        III. CONCLUSION

       Because Wilkins is not eligible for sentence reduction under § 3582(c)(2), we AFFIRM the

district court’s denial of Wilkins’s motion.




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