                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                     File Name: 10a0009p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                       Nos. 07-3754; 09-3397
          v.
                                                  ,
                                                   >
                                                  -
                        Defendant-Appellant. -
 TORRENCE GILLIS,
                                                  -
                                                 N
                   Appeal from the United States District Court
                  for the Northern District of Ohio at Cleveland.
                         Nos. 06-00290; 06-00290-012—
                        Patricia A. Gaughan, District Judge.
                          Argued and Submitted: October 15, 2009
                           Decided and Filed: November 5, 2009*
                 Before: MARTIN, ROGERS, and COOK, Circuit Judges.

                                      _________________

                                           COUNSEL
ARGUED: Gary W. Crim, LAW OFFICE, Dayton, Ohio, for Appellant. Edward F. Feran,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:
Gary W. Crim, LAW OFFICE, Dayton, Ohio, Donna M. Grill, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Toledo, Ohio, for Appellant. Edward F. Feran, ASSISTANT
UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
                                      _________________

                                           OPINION
                                      _________________

        BOYCE F. MARTIN, JR., Circuit Judge. In 07-3754, Torrence Gillis appeals his
sentence, arguing that his sentence was unreasonable because the judge did not recognize
that the guidelines were advisory and that he had the power to vary from the sentencing


        *
         This decision was originally issued as an “unpublished decision” filed on November 5, 2009.
The court has now designated the opinion as one recommended for full-text publication.


                                                 1
Nos. 07-3754; 09-3397            United States v. Gillis                              Page 2


guidelines and the policy determinations of the Sentencing Commission. The government
concedes that the district court erred, and the government has not met its burden of proving
that the error was harmless. Thus, we REVERSE the district court’s ruling and REMAND
this case for re-sentencing by the court with full knowledge of its power to disagree with the
policy determinations of the Sentencing Commission.

        In 09-3397, Gillis argues that the district court abused its discretion in denying his
motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). However, as the district
court properly denied Gillis’ motion for modification of sentence because his career offender
status pursuant to U.S.S.G. § 4B1.1 disqualified him from receiving a reduced sentence
under the Guidelines Amendment 706 for crack cocaine offenses under Guideline 2D1.1, we
AFFIRM the judgment of the district court.

                                              I.

        On June 14, 2006, the grand jury returned a 49-count indictment against Gillis and
his co-defendants for activities related to the possession and sale of crack cocaine within
1,000 feet of a public school. Gillis was charged with Count 1, conspiracy to possess with
intent to distribute crack within 1,000 feet of school property in violation of 21 U.S.C.
§§ 841(a)(1) and 860(a), and Count 2, possession with intent to distribute 4.12 grams of
crack within 1,000 feet of school property in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)
and 860(a). On November 15, 2006, the government filed a Section 851 Information to
establish prior convictions. On March 19, 2007, the jury acquitted Gillis on Count 1 and
found him guilty on Count 2.

        Gillis’ sentencing took place on May 22, 2007. Had the court sentenced him under
U.S.S.G. § 2D1.1 based on the amount of crack attributable to him, he would have received
a base offense level of 26. However, the district court found that, consistent with the U.S.
Probation Office’s presentence report, Gillis was a career offender under U.S.S.G. § 4B1.1,
yielding an adjusted offense level of 34 and a criminal history category of VI, which carries
a Guideline range of 262-327 months. After Gillis’ counsel spoke of Gillis’ upbringing, the
court sentenced Gillis to 262 months’ imprisonment followed by six years of supervised
release, stating:
Nos. 07-3754; 09-3397             United States v. Gillis                                  Page 3


        Well, the Court does not believe that a criminal history category six
        overstates the seriousness of his criminal history for all the reasons stated by
        [the prosecutor], that this defendant has 17 points, and criminal history
        category six is 13 points and above. In addition, the Court must note that the
        Sixth Circuit has clearly stated in the case of United States of America v.
        James M. Funk, F-U-N-K, that a district court can not reject the legislator’s
        policy behind career offender status. So whether or not I agree or disagree
        with the career offender provision, the Court must apply it if in fact the
        evidence is such that a defendant has sufficient convictions to be classified
        as a career offender. Therefore, I am not going to depart for both of those
        reasons from the career offender status.
Gillis timely appealed.

        On December 17, 2007, Gillis filed a pro se motion for a sentence reduction under
18 U.S.C. § 3582(c)(2), based on an amendment to the Sentencing Guidelines which lowered
the base offense levels for crack cocaine offenses. Gillis was appointed counsel on June 16,
2008. On March 9, 2009, the Federal Public Defenders’ office filed a second motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2). Having received the government’s
response, the district court denied Gillis’ motion on April 6, 2009, concluding that Gillis was
ineligible for a sentence reduction because of his career offender status. Gillis timely
appealed (09-3397).

                                              II.

        A.      Unreasonable Sentence Under Section 3553(a)

        A district court abuses its discretion when it makes an error of law. Koon v. United
States, 518 U.S. 81, 100 (1996). We have defined an abuse of discretion 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. Carter, 463
F.3d 526, 528 (6th Cir. 2006) (citation and internal quotation marks omitted). An abuse of
discretion that does not affect substantial rights is harmless error. United States v. Beverly,
369 F.3d 516, 540 (6th Cir. 2004).

        Here, the government concedes in light of Booker and Spears v. United States, —
U.S. —, 129 S. Ct. 840 (2009), that the career offender Guidelines are not mandatory and
that district courts have authority to vary below the low end of the career offender Guideline.
Nos. 07-3754; 09-3397            United States v. Gillis                              Page 4


See United States v. Michael, 576 F.3d 323 (6th Cir. 2009). Thus, the government concedes
that the district court committed error at sentencing in relying upon United States v. Funk,
477 F.3d 421 (6th Cir. 2007), cert. granted, judgment vacated, 128 S. Ct. 861 (2008), to
conclude that it could not vary based on a rejection of the policy underlying the career
offender Guidelines. However, the government argues that Gillis’ substantial rights were
not affected because the district court would have imposed the same sentence even if it did
not believe that it was constrained by the Funk holding, so the error was harmless.

        Where we accept the government’s concession of error, we “must determine whether
any error in sentencing was harmless, as opposed to conducting a plain error analysis.”
United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (citations omitted). Harmless
error may be established ‘where the government is able to prove that none of the defendant’s
substantial rights have been affected by the error.” United States v. Oliver, 397 F.3d 369,
381 (6th Cir. 2005); see also FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.”). There can be no
harmless error unless the appellate court can determine from the record that the same
sentence would be imposed on remand. United States v. Johnson, 467 F.3d 559 (6th Cir.
2006). For the government to carry its burden, it must demonstrate “to the Court with
certainty that the error at sentencing did not cause the defendant to receive a more severe
sentence.” United States v. Lanesky, 494 F.3d 558, 561 (6th Cir. 2007) (emphasis in
original).

        Here, the government has not met its burden of showing that the district court’s error
was harmless because we cannot conclude that the district court would have imposed the
same sentence had it known that the career offender Guidelines were advisory. On one hand,
the district court did make statements implying that it independently found Gillis to be a
career offender and the court may have given him the same sentence had the judge not
believed himself bound by Funk. However, on the other hand, the court sentenced Gillis to
the lowest sentence available in the sentencing range: 262 months. This makes it less clear
that the judge would have imposed the same sentence had he not believed himself to be
bound by Funk and the career offender Guidelines.
Nos. 07-3754; 09-3397             United States v. Gillis                                Page 5


        We therefore REVERSE the district court’s ruling and REMAND this case for re-
sentencing by the judge without being constrained by the Funk holding. Having already
found sufficient facts to find Gillis to be a career offender, the judge must continue his
Section 3553(a) considerations using the advisory career offender Guideline range as a
starting point.

        B.        Motion for a Reduced Sentence

        Section 3582(c)(2) authorizes a district court to reduce a sentence where the
defendant has been sentenced “based on a sentencing range that has subsequently been
lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). After Gillis’ sentencing
and while he was in prison, the Sentencing Commission adopted Amendment 706 to the
Sentencing Guidelines, effective November 1, 2007, which lowered the sentencing ranges
that applied to most crack cocaine offenses. Following this amendment, Gillis filed a motion
for a sentence reduction under Section 3582(c)(2), which the district court denied.

        In this case, the district court did not sentence Gillis under the crack cocaine
guideline, U.S.S.G. § 2D1.1; rather, it sentenced him under U.S.S.G. § 4B1. 1, the career
offender guideline. Consequently, Amendment 706, which amended § 2D1.1 but not
§ 4B1.1, has no effect on the ultimate sentencing range imposed on Gillis. United States v.
Lockett, 2009 WL 2445733, at *1 (6th Cir. 2009) (citing United States v. Perdue, 572 F.3d
288, 292 (6th Cir. 2009) (citing United States v. Leasure, No. 07-6125, 2009 WL 1546370,
at *7 (6th Cir. June 3, 2009); United States v. Alexander, 543 F.3d 819, 825 (6th Cir.
2008))). Therefore, he is not entitled to a reduction of his sentence on the basis of
Amendment 706. As a result, Section 3582(c)(2) does not authorize a reduction in Gillis’
sentence. See U.S.S.G. § 1B1.10(a)(2)(B) (noting that Section 3582(c)(2) does not authorize
a sentence reduction if the relevant amendment “does not have the effect of lowering the
defendant's applicable guideline range”).

        Moreover, contrary to Gillis’ assertion, whether guideline provisions limiting a
district court’s discretion to reduce a sentence, such as § 1B1. 10, are constitutional under
Booker is not at issue here since, under the plain language of § 3582(c)(2), Gillis is ineligible
for a sentencing reduction. Lockett, 2009 WL 2445733, at *1 (“Even assuming arguendo
that the Sentencing Commission has no authority to limit the district court’s ability to reduce
Nos. 07-3754; 09-3397            United States v. Gillis                             Page 6


[the defendant’s] sentence, Congress may certainly cabin the court’s discretion, and it does
so expressly in the text of 18 U.S.C. § 3582(c)(2).”).

                                            III.

        For the foregoing reasons, we REVERSE and REMAND Gillis’ case for
resentencing. We AFFIRM the judgment of the district court as to Gillis’ motion for a
reduced sentence.
