                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                     File Name: 09a0220p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                       Nos. 08-3925/3926
           v.
                                                  ,
                                                   >
                                                  -
                                                  -
 MELVIN JOHNSON, JR. (08-3925); RODNEY

                      Defendants-Appellants. -
 MOSS (08-3926),
                                                  -
                                                 N
                   Appeal from the United States District Court
                 for the Northern District of Ohio at Youngstown.
                       Nos. 98-00003-004; 98-00003-013—
                         Donald C. Nugent, District Judge.
                                  Submitted: June 18, 2009
                             Decided and Filed: June 30, 2009
                                                                                          *
       Before: MOORE and GILMAN, Circuit Judges; PHILLIPS, District Judge.

                                    _________________

                                          COUNSEL
ON BRIEF: Andy P. Hart, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Toledo, Ohio, for Appellants. Blas E. Serrano, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee.
                                    _________________

                                          OPINION
                                    _________________

        KAREN NELSON MOORE, Circuit Judge. In these consolidated appeals,
Defendants-Appellants Melvin Johnson, Jr., and Rodney Moss appeal the district court’s
denial of their motions to modify their sentences under 18 U.S.C. § 3582(c)(2). In 1998,


        *
        The Honorable Thomas W. Phillips, United States District Judge for the Eastern District of
Tennessee, sitting by designation.


                                                1
Nos. 08-3925/3926              United States v. Johnson et al.                     Page 2


Johnson and Moss were charged along with several other defendants in a multi-count
superseding indictment, the primary charge being conspiracy to possess with intent to
distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841 and 846. Johnson
pleaded guilty to the single conspiracy count, while Moss went to trial and was
convicted on the conspiracy count as well as one count of use of a communication
facility in committing a drug offense. Both Johnson and Moss were sentenced to 168
months of imprisonment and five years of supervised release. In 2008, after the
Sentencing Commission implemented retroactive guidelines applicable to offenses
involving cocaine base, Johnson and Moss each filed a motion for a reduction of
sentence under § 3582(c)(2). The district court denied both motions, finding that
Johnson and Moss were ineligible for sentence modification because, although their
convictions involved both powder cocaine and cocaine base, their sentences were based
solely on powder cocaine. Both Johnson and Moss now argue that the district court
erred in finding that their sentences were not based on cocaine base. For the reasons
discussed below, we AFFIRM the judgments of the district court denying their motions
for sentence reduction under § 3582(c)(2).

                                 I. BACKGROUND

       On February 17, 1998, Johnson and Moss were indicted, along with fourteen
other individuals, on a multi-count superseding indictment. Among other things, the
superseding indictment charged both Johnson and Moss with one count of conspiracy
with intent to distribute cocaine and/or cocaine base in violation of 21 U.S.C. §§ 841 and
846 (Count 1) and one count each of using a communication facility to commit a drug
offense in violation of 21 U.S.C. § 843(b) (Counts 8 and 15, respectively).

       Johnson entered into a plea agreement under which Count 8 was dismissed, and
he pleaded guilty to Count 1, the conspiracy charge. A Presentence Investigation Report
(“PSR”) was entered as to Johnson in December 1998. Based on the 1998 edition of the
United States Sentencing Commission Guidelines Manual, the PSR recommended a
guideline range of 168 to 210 months, based on a total offense level of 33 and a criminal
history category of III. Johnson was given a base offense level of 34 under U.S.S.G.
Nos. 08-3925/3926              United States v. Johnson et al.                     Page 3


§ 2D1.1(c)(3), pursuant to the government’s assertion that Johnson was responsible for
greater than fifteen kilograms but less than fifty kilograms of cocaine. Johnson objected
to the calculation of the drug quantity, and a sentencing hearing was held at which the
government presented testimony in support of the drug amount. The government first
presented the testimony of Linda Heard, one of Johnson’s codefendants, that she bought
for and delivered to Johnson powder cocaine in quantities of at least two ounces on
twelve to fifteen separate occasions. She also testified that on three occasions she
witnessed Johnson cook the powder cocaine, converting it to crack cocaine, before
selling it. A federal agent, James McCann, testified to sales made by Johnson to various
other defendants. Based on this testimony, the district court adopted the guidelines
range recommended in the PSR. Johnson was sentenced to 168 months of imprisonment
and five years of supervised release.

       Moss, on the other hand, proceeded to trial on both the conspiracy charge and the
communication-facility charge. At trial, Marvin Reese, one of Moss’s codefendants,
testified that Reese sold “cocaine” to Moss in amounts of nine or eighteen ounces once
or twice a week from 1995 until December 1997. Moss was found guilty and convicted
on both counts. A PSR as to Moss was submitted in October 1998. Based on the 1997
edition of the United States Sentencing Commission Guidelines Manual, the PSR
recommended a base offense level of 34 under U.S.S.G. § 2D1.1(c)(3), based on the
government’s assertion that Moss was responsible for greater than fifteen kilograms of
cocaine. Moss did not object to the estimation of the drug quantity or the calculation of
the base offense level. At sentencing, the district court adopted the base offense level
as calculated in the PSR, resulting in a total offense level of 34 and a criminal history
category of III, for a guidelines range of 168 to 210 months. The district court sentenced
Moss to 168 months of imprisonment on Count 1 and 48 months on Count 15, to be
served concurrently, and five years of supervised release.

       Both defendants then filed direct appeals to this court. Johnson appealed his
sentence, arguing, among other things, that “the court improperly determined the amount
of drugs attributable to him.” United States v. Johnson, 24 F. App’x 309, 310 (6th Cir.
Nos. 08-3925/3926             United States v. Johnson et al.                     Page 4


2001) (unpublished order). This court “conclude[d] that the district court properly
determined the amount of drugs attributable to Johnson,” because “[a] review of the
sentencing transcript clearly establishes that two witnesses (co-defendant Heard and
Agent McCann) provided sufficient and reliable testimony that Johnson was responsible
for between fifteen and fifty kilograms of cocaine.” Id. at 311. Moss appealed both his
conviction and his sentence, challenging, among other things, “the quantity of cocaine
used to determine his sentence.” United States v. Moss, No. 98-4273, 2000 WL 553901,
at *1 (6th Cir. Apr. 26, 2000). This court denied Moss’s appeal, concluding, based on
Reese’s testimony, that “ample evidence was presented at trial to support a finding that
defendant was personally responsible for distributing more than 15 kilograms of
cocaine.” Id. at *5.

       In early 2008, Johnson and Moss separately filed pro se motions for reduction
of sentence pursuant to 18 U.S.C. § 3582(c)(2), each arguing that, because his conviction
was based on conspiracy to distribute cocaine and cocaine base, he was entitled to a
discretionary reduction of his sentence in light of the recent amendments to the
Sentencing Guidelines dealing with the calculation of the base offense level for offenses
involving cocaine base. Both defendants were appointed counsel through the Office of
the Federal Public Defender for the Northern District of Ohio, who filed virtually
identical responses to both motions, stating,

       Upon review of the defendant’s presentence investigation report, the
       judgment and commitment order in this case, and an analysis of the issue
       of eligibility conducted by the United States Pretrial Services and
       Probation Office, the undersigned counsel has concluded that the
       defendant’s sentence in this case was based on powder cocaine, not crack
       cocaine.
Johnson Record on Appeal (“ROA”) at 85 (Johnson Resp. by Counsel); Moss ROA at
21 (Moss Resp. by Counsel). The government also filed identical motions in both cases,
stating that, based on an independent review of the PSR, the government “concurs with
the Federal Public Defender’s conclusion [] that the above-captioned defendant is
ineligible for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), U.S.S.G. § 1B1.10,
and Amendment 706.” Johnson ROA at 88 (Johnson Gov’t Reply); Moss ROA at 24
Nos. 08-3925/3926              United States v. Johnson et al.                      Page 5


(Moss Gov’t Reply). Johnson did not file any further documents, but Moss, acting pro
se, filed a motion for reconsideration, further arguing that his sentence was based on
cocaine base, entitling him to a two-level reduction under the amended guidelines.

       On July 18, 2008, the district court denied both motions, finding for each that,
although the charge of conviction involved both powder cocaine and crack cocaine, the
sentence was based only on powder cocaine:

       Defendant [Johnson] pled guilty to conspiracy to distribute cocaine
       (powder) and cocaine base (crack). His sentence, however, was based on
       the parameters for powder cocaine and not crack cocaine. He is therefore
       ineligible for a reduction in sentence under 18 U.S.C. § 3582(c)(2),
       U.S.S.G. § 1B1.10 and U.S.S.G. § 2D1.1.
Johnson ROA at 91 (Johnson Dist. Ct. Order).

       Defendant [Moss] was convicted of Conspiracy to Possess with Intent to
       Distribute Cocaine and Cocaine Base. Although both cocaine (powder)
       and cocaine base (crack) were part of the indictment, the sentence in this
       case was based on powder cocaine. Defendant is therefore ineligible for
       a reduction in sentence under 18 U.S.C. Sec. 3582/U.S.S.G. Sec. 2D1.1[.]
Moss ROA at 37 (Moss Dist. Ct. Order). Both defendants filed timely appeals.

                                    II. ANALYSIS

A. Standard of Review

       Generally, “[a] motion for modification made under 18 U.S.C. § 3582(c)(2) is
reviewed for an abuse of discretion.” United States v. Wayne Carter, 500 F.3d 486, 490
(6th Cir. 2007). “‘Abuse of discretion is defined as a definite and firm conviction that
the trial court committed a clear error of judgment. A district court abuses its discretion
when it relies on clearly erroneous findings of fact, or when it improperly applies the law
or uses an erroneous legal standard.’” United States v. Larry Carter, 463 F.3d 526, 528
(6th Cir. 2006) (quoting United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt.
Group, Inc., 400 F.3d 428, 450 (6th Cir. 2005)). Where, 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
Nos. 08-3925/3926              United States v. Johnson et al.                         Page 6


conclusion that the defendant is ineligible for a sentence reduction is a question of law
that is reviewed de novo. See, e.g., 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).

B. Eligibility for Sentence Reduction Under § 3582(c)(2)

       Section 3582(c)(2) provides an exception to the normal rule that a “court may not
modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). This
subsection allows for modification under the following circumstances:

       [I]n 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),
       upon motion of the defendant or the Director of the Bureau of Prisons,
       or on its own motion, the court may reduce the term of imprisonment,
       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.
§ 3582(c)(2).

       Section 1B1.10 of the Sentencing Guidelines identifies the guidelines
amendments which may be applied retroactively and establishes the proper procedure
for implementing an amendment under § 3582(c)(2). The current version of § 1B1.10,
which became effective March 3, 2008, provides generally that

       [i]n 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.
U.S.S.G. § 1B1.10(a)(1); U.S. Sentencing Guidelines Manual app. C, amend. 712
(2008). Consistent with the statutory directive that a reduction may be given only to “a
Nos. 08-3925/3926             United States v. Johnson et al.                    Page 7


defendant who has been sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing Commission,” § 3582(c)(2),
Section 1B1.10 sets out two cases in which a reduction in a defendant’s term of
imprisonment is not authorized:

       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)(2).

       Also effective March 3, 2008, the Commission added Amendment 706, as
amended by Amendment 711, to the list of covered amendments in subsection
§ 1B1.10(c). See U.S. Sentencing Guidelines Manual app. C, amend. 713 (2008).
Amendment 706, which had become effective on November 1, 2007, lowered the base
offense level under U.S.S.G. § 2D1.1 for drug-trafficking offenses involving cocaine
base, also known as crack. Amendment 706, now amended by both Amendments 711
and 715, has the effect of reducing by two levels the base offense level for most
cocaine-base offenses.

       Here, the district court found that neither Johnson nor Moss was eligible for a
reduced sentence under § 3582(c)(2), because their sentences were based solely on
powder cocaine, meaning that Amendment 706 would not have the effect of lowering
their sentences. Each defendant now argues that, because his conviction was based in
part on cocaine base and his PSR refers to conduct involving cocaine base, the district
court’s finding that his sentence was not based on cocaine base was clearly erroneous.
Both defendants state that “the threshold issue in this matter is whether his conviction
and sentence involved either base or powder cocaine, or some combination of both.”
Johnson Br. at 10; Moss Br. at 12. Neither defendant, however, provides support for the
Nos. 08-3925/3926              United States v. Johnson et al.                      Page 8


proposition that the court should look at the basis for the conviction rather than focusing
solely on the basis for calculating the sentence; instead, each defendant states only the
“general proposition” that “a conviction and sentence are inextricably linked.” Johnson
Br. at 10; Moss Br. at 12. It is true that both defendants’ convictions were based on both
powder cocaine and cocaine base. It is also clear, however, that both defendants were
sentenced under the guidelines applicable only to powder-cocaine offenses.

       The district court correctly noted that Johnson pleaded guilty to conspiracy to
distribute both powder cocaine and cocaine base. The PSR, however, calculated his base
offense level of 34 using the drug quantity table for powder cocaine, and the resulting
guidelines range was adopted by the district court. Johnson’s base offense level was
derived from testimony presented by the government at the sentencing hearing
establishing Johnson’s responsibility for purchasing for distribution more than fifteen
but less than fifty kilograms of powder cocaine. Although Heard testified that Johnson
converted the powder cocaine to crack cocaine before distributing it, the drug quantities
used in the sentencing calculation were the quantities of powder cocaine. Section
2D1.1(c) of the 1998 guidelines, under which Johnson was sentenced, contains the
drug-quantity tables for calculating the base offense level for drug-trafficking offenses.
Under § 2D1.1(c)(3), at least fifteen but less than fifty kilograms of powder cocaine
results in a base offense level of 34. Had Johnson been sentenced based on the
cocaine-base quantity, the appropriate section would have been § 2D1.1(c)(1), which
gives a base offense level of 38 for offenses involving 1.5 kilograms or more of cocaine
base. Therefore, it is clear that Johnson was sentenced under the guidelines for
powder-cocaine offenses, not the increased offense levels for cocaine-base offenses.

       Moss’s argument likewise fails. Again, the district court correctly noted that
both powder cocaine and cocaine base were part of the indictment under which Moss
was convicted. The PSR calculated his base offense level of 34 using the drug-quantity
table for powder cocaine, based on the government’s statement that Moss was
responsible for in excess of fifteen kilograms of cocaine. Moss did not object to either
the drug quantity or the base offense level, and this calculation was adopted by the
Nos. 08-3925/3926               United States v. Johnson et al.                       Page 9


district court. Section 2D1.1(c) of the 1997 version of the guidelines, under which
Moss’s sentence was calculated, set forth the drug-quantity tables for calculating the
base offense level for drug-trafficking offenses. Under § 2D1.1(c)(3), at least fifteen but
less than fifty kilograms of powder cocaine results in a base offense level of 34. Like
Johnson, had Moss been sentenced based on the cocaine-base quantity, the appropriate
section would have been § 2D1.1(c)(1), which gives a base offense level of 38 for
offenses involving 1.5 kilograms or more of cocaine base. The drug quantity was
supported by Reese’s testimony that “he sold cocaine to [Moss] in quantities of 1/4 and
1/2 kilograms, every week, and sometimes twice a week, for two to three years.” Moss,
2000 WL 553901, at *5. Although it is unclear whether Reese was referring to
quantities of powder cocaine or quantities of cocaine base, it is clear based on the
calculation adopted by the district court that these amounts were treated as powder
cocaine for purposes of the § 2D1.1(c) base-offense-level calculation. Therefore, Moss
was sentenced under the guidelines for powder-cocaine offenses, not the increased
offense levels for cocaine-base offenses.

        Johnson and Moss argue, however “that whether or not the amount of cocaine
base under the superseding indictment, if properly calculated under the equivalency
table, would affect the overall guideline calculation is irrelevant.” Johnson Br. at 12;
Moss Br. at 14. This statement is simply incorrect. Under § 1B1.10(a)(2), a sentence
reduction is authorized only if one of the listed amendments is applicable to the
defendant and the amendment would “have the effect of lowering [his] applicable
guideline range.” Therefore, whether the amount of cocaine base would affect the
overall guideline calculation is explicitly made relevant by § 1B1.10(a)(2)(B). Because
both Johnson’s and Moss’s sentences were calculated based on only the powder-cocaine
offense levels, the district court correctly found that it was not authorized to reduce their
sentences under § 3582(c)(2). See United States v. Mendoza, 282 F. App’x 487, 488 (8th
Cir. 2008) (concluding that defendant was ineligible for relief under § 3582(c)(2)
because his sentence was “driven by the quantity of powder cocaine he conspired to
distribute,” whereas “Amendment 706 only affects those defendants whose guideline
range was determined based on their involvement with crack cocaine”); see also United
Nos. 08-3925/3926            United States v. Johnson et al.                  Page 10


States v. Johnson, 564 F.3d 419, 423 (6th Cir. 2009) (affirming district court’s
conclusion that it lacked authority to reduce defendant’s sentence under § 3582(c)(2)
where the sentence was based on the statutory mandatory-minimum term and the
defendant therefore “was not in fact sentenced based on a Guidelines range that was
subsequently reduced”).

                                III. CONCLUSION

       Because both Johnson and Moss were not sentenced based on the guidelines
applicable to offenses involving cocaine base, we AFFIRM the judgments of the district
court denying the defendants’ motions for sentence reduction under § 3582(c)(2).
