               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0145n.06

                                           No. 09-4386                                   FILED
                                                                                      Mar 15, 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 NORTHERN
                                                         )        DISTRICT OF OHIO
MICHAEL TUCKER,                                          )
                                                         )
       Defendant-Appellant.                              )
                                                         )



BEFORE: MERRITT, CLAY, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Michael Tucker appeals the district court’s order denying his motion for a sentence reduction

pursuant to 18 U.S.C. § 3582(c)(2).1 For the reasons that follow, we affirm.

                                                I.

       On August 29, 2006, Michael Tucker was indicted on one count of possession with intent

to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A)(iii). On September 22, 2006, the government filed an information under 21 U.S.C. § 851

and invoked the penalty enhancement provisions of 21 U.S.C. § 841(b)(1)(A), based upon a prior




       1
        The parties have waived oral argument, and we unanimously agree that oral argument is not
needed in this case. Fed. R. App. P. 34(a).
No. 09-4386
USA v. Tucker


felony drug conviction for Tucker. This had the effect of raising his statutory mandatory minimum

sentence from 120 to 240 months.

       Subsequently, Tucker entered into a written plea agreement with the government and pled

guilty as charged. The parties stipulated that the amount of cocaine base distributed by Tucker was

at least 50 grams but less than 150 grams of crack cocaine, corresponding to a base offense level of

32. Tucker acknowledged that if the penalty enhancement applied, “then his base offense level will

be the level first containing the 240 month mandatory minimum sentence in [his] applicable criminal

history category.”2 The government agreed to recommend to the court a three-level reduction for

acceptance of responsibility and a downward departure of no more than four levels pursuant to

U.S.S.G. § 5K1.1 for Tucker’s substantial assistance.

       The Presentence Investigation Report (“PSR”) prepared by the Probation Office noted that

Tucker faced a mandatory minimum 240-month sentence. The PSR assigned Tucker a base offense

level of 32 which, consistent with the terms of the plea agreement, was then lowered by three levels

pursuant to U.S.S.G. §§ 3E1.1(a) and (b), and four levels pursuant to U.S.S.G. § 5K1.1, for

acceptance of responsibility and substantial assistance, respectively. Tucker’s adjusted offense level

was 25 and his criminal history category was VI, with a resultant advisory Guidelines range of 110

to 137 months.3


       2
        The first offense level which incorporated the statutory mandatory minimum in this case was
level 32. The Guideline offense level would thus become 240 to 262 months of imprisonment.
       3
        The Probation Office noted that the Guideline calculations contained in the PSR did not
correspond to the figures contemplated by the plea agreement because Tucker was not, in fact, a

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No. 09-4386
USA v. Tucker


       At the sentencing hearing held on April 3, 2007, the district court acknowledged the

applicable mandatory minimum sentence of 240 months, but granted the government’s motions for

a four-level downward departure for substantial cooperation under U.S.S.G. § 5K1.1, and a three-

level reduction for acceptance of responsibility, thereby piercing the mandatory minimum sentence.

The court sentenced Tucker to 110 months of imprisonment, followed by five years of supervised

release. Tucker did not file a direct appeal.

       On July 21, 2009, Tucker filed a motion for sentence reduction pursuant to 18 U.S.C. §

3582(c)(2), citing Amendment 706 to the United States Sentencing Guidelines, which reduced

offense levels related to convictions for cocaine base. In an order issued on November 9, 2009, the

district court denied Tucker’s motion, holding:

       [Defendant] was subject to a [mandatory minimum] sentence. Therefore, even
       applying the two level reduction in the original calculation, the offense level would
       have to be re-set to correspond [to] a guideline range including the [mandatory
       minimum] of 240 months; and, the downward departures for [substantial assistance]
       would come off the adjusted offense level and not the reduced original level,
       resulting in the same sentence. See [United States v.] Johnson, 564 F.3d 419 (6th
       Cir. [] 2009).

       Tucker now appeals, arguing that the district court erred in denying his motion because his

sentence was based upon the amount of crack cocaine involved in the case and not upon the

mandatory minimum sentence and, contrary to United States v. Booker, 543 U.S. 220 (2005), and

Kimbrough v. United States, 552 U.S. 85 (2007), the district court failed to consider the factors




career offender. The PSR adjusted the offense levels accordingly.

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No. 09-4386
USA v. Tucker


enumerated in 18 U.S.C. § 3553(a) and treated the Guidelines range as mandatory. However,

Tucker’s arguments are unavailing in light of this court’s clearly established precedent.

                                                 II.

       We review the district court’s denial of a motion to modify a sentence under 18 U.S.C. §

3582 for an abuse of discretion. United States v. Payton, 617 F.3d 911, 912 (6th Cir. 2010); United

States v. Moore, 582 F.3d 641, 644 (6th Cir. 2009). 18 U.S.C. § 3582(c)(2) is narrow in scope and

“‘authorize[s] only a limited adjustment to an otherwise final sentence and not a plenary resentencing

proceeding.’” United States v. McPherson, 629 F.3d 609, 611 (6th Cir. 2011) (quoting Dillon v.

United States, — U.S. — , 130 S. Ct. 2683, 2691, 177 L.Ed.2d 271 (2010)). Thus, the district court

was limited to considering whether Amendment 706 applied retroactively to Tucker’s sentence, and

on appeal “the only cognizable issue is whether the district court erred in denying the motion.” Id.

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

       In McPherson, in circumstances analogous to the present case, we rejected the defendant’s

argument that Amendment 706 should be applied retroactively to reduce his offense levels for his

crack-cocaine sentence. The defendant pled guilty, pursuant to a plea agreement, to one count of

possession with intent to distribute crack cocaine, possession with intent to distribute cocaine, and

being a felon in possession of a firearm. 629 F.3d at 610. With a total offense level of 33 and a

criminal history category of IV, the advisory Guidelines range was 188 to 235 months. Id. However,

because a statutorily mandated sentence was required under 18 U.S.C. §§ 841(b)(1)(A) and 851, the

defendant’s advisory Guidelines range of imprisonment became 240 months. Id. At sentencing, the


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No. 09-4386
USA v. Tucker


district court granted the government’s substantial assistance motion under U.S.S.G. § 5K1.1 and,

based on a total offense level of 32 and a criminal history category of IV, sentenced the defendant

to 168 months of imprisonment. Id. The court denied the defendant’s motion to reduce his sentence

pursuant to 18 U.S.C. § 3582(c)(2), finding that the defendant was not eligible for a sentence

reduction under Amendment 706 because his sentence was based on the mandatory minimum 240-

month sentence. Id. at 610-11. On appeal, we affirmed, explaining:

       Section 3582(c)(2) allows a sentence modification “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 . . . after considering the
       factors set forth in [18 U.S.C.] 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.” 18 U.S.C. § 3582(c)(2); see also USSG § 1B1.10(a). “A
       reduction in the defendant’s term of imprisonment is not consistent . . . [if] . . . [a]n
       amendment [to the Guidelines] does not have the effect of lowering the defendant’s
       applicable guideline range.” United States v. Pembrook, 609 F.3d 381, 383 (6th Cir.
       2010) (citation omitted).

       In United States v. Johnson, 564 F.3d 419, 423 (6th Cir.), cert. denied, — U.S. — ,
       130 S. Ct. 318, 175 L.Ed.2d 210 (2009), we held that a defendant subject to a
       statutory mandatory minimum sentence is not eligible for a reduction under §
       3582(c)(2) because Amendment 706 does not lower the defendant’s applicable
       guideline range. In Johnson, the defendant’s crack cocaine guideline range was 235
       to 293 months but, because he was subject to a mandatory minimum sentence of 240
       months, his guideline range became 240 to 293 months. Id. at 420-21. Following
       the grant of a USSG § 5K1.1 motion by the government, the district court imposed
       a 108-month sentence. Id. at 421. Johnson later filed a § 3582(c)(2) motion to
       reduce sentence, based on Amendment 706, which the district court denied. Id. at
       421. We affirmed, holding that Johnson “was not in fact sentenced based on a
       Guidelines range that was subsequently reduced. Rather, his sentence was based on
       the [240-month] mandatory minimum imposed by 21 U.S.C. § 841(b)(1)(A), which
       remained unchanged by Guidelines Amendment 706.” Id. at 423.

       Here, McPherson’s sentence was not based on a guidelines range that was
       subsequently reduced. Like the defendant in Johnson, it was based on the 240-month

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No. 09-4386
USA v. Tucker


       minimum sentence mandated by statute. Because Amendment 706 did not lower the
       statutory mandatory minimum term of imprisonment, McPherson was not eligible for
       a sentence reduction pursuant to § 3582(c)(2), and the district court did not err by
       denying McPherson’s motion.

Id. at 611-12. See also United States v. Stiff, No. 09-1115, 2011 WL 219904, at *2-4 (6th Cir.

Jan. 24, 2011) (unpublished) (following Johnson and holding that the defendant was not eligible for

§ 3582(c)(2) sentence reduction because his sentence was based on the statutory mandatory

minimum sentence, rather than on the Guidelines for crack cocaine offenses); United States v.

Parker, 358 F. App’x 632, 634 (6th Cir. 2009) (unpublished) (“Like the defendant in Johnson,

Parker is not entitled to a sentence reduction because he was not in fact sentenced based on a

Guidelines range that has been subsequently lowered. His sentence instead was based on the

mandatory minimum imposed by 21 U.S.C. § 841(b)(1)(A), which remains unchanged by

Amendment 706.”) (citation omitted).

       Here, in circumstances virtually indistinguishable from McPherson and Johnson, Tucker’s

arguments fail. Although Tucker argues that the starting point used by the district court to calculate

the downward departure was the Guidelines range and base offense level corresponding to the

possession of between 50 and 150 grams of crack cocaine, he concedes that his base offense level

of 32 was the first offense level which incorporated the statutory mandatory minimum sentence of

240 months, as set forth in his plea agreement. At the sentencing hearing, the district court expressly

noted the mandatory minimum and used it as the starting point for the downward departure. Thus,

Tucker’s argument to the contrary is without merit.



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USA v. Tucker


       Moreover, as we have held in a recent spate of cases, in the wake of the Supreme Court’s

decision in Dillon, it is now clear that “[g]iven the limited scope and purpose of § 3582(c)(2), . . .

proceedings under that section do not implicate the interests identified in Booker[,]” and “the

remedial aspect of the [Booker] Court’s decision [does not] appl[y] to proceedings under that section

. . . .” Dillon, 130 S. Ct. at 2692-93; see also United States v. Bowers, 615 F.3d 715, 726-27 (6th

Cir. 2010); Stiff, 2011 WL 219904, at *3-4; United States v. Ingol, No. 09-4095, 2010 WL 5230876,

at *2 (6th Cir. Dec. 20, 2010) (unpublished); United States v. Johnson, No. 09-4004, 2010 WL

4879188, at *2 (6th Cir. Nov. 23, 2010) (unpublished); United States v. Hall, No. 09-4104, 2010 WL

4810220, at *2 (6th Cir. Nov. 19, 2010) (unpublished); United States v. Robinson, No. 08-6067,

2010 WL 4721070, at *2 (6th Cir. Nov. 15, 2010) (unpublished).

       Accordingly, the district court did not abuse its discretion in denying Tucker’s motion for a

sentence reduction based on Amendment 706.

                                                 III.

       For these reasons, we affirm the judgment of the district court.




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