                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0025n.06

                                           No. 08-6151                                   FILED
                                                                                     Jan 13, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
EDDIE BARBER,                                    )    MIDDLE DISTRICT OF TENNESSEE
                                                 )
       Defendant-Appellant.                      )


       Before: NORRIS, COOK, and GRIFFIN, Circuit Judges.


       COOK, Circuit Judge. A jury convicted Eddie Barber of conspiracy to distribute cocaine and

cocaine base, and possession with intent to distribute cocaine and cocaine base; the district court

sentenced him to 360 months’ imprisonment. Barber moved to reduce his sentence pursuant to 18

U.S.C. § 3582(c) based upon the Sentencing Guidelines amendments that retroactively lowered the

base offense levels for crimes involving cocaine base. The district court denied the motion, finding

that it lacked jurisdiction to alter Barber’s sentence because the amendments left the applicable

sentencing range unaffected. Barber appeals, and we affirm.


                                                 I.


       In 1995, a jury convicted Barber of the above-referenced drug offenses, which involved

approximately 2.5 kilograms of cocaine base and approximately the same amount of powder cocaine.
No. 08-6151
United States v. Barber


Applying the Drug Quantity Table then in effect, Barber’s conviction carried a base offense level of

38. Barber’s role as an organizer or leader of the criminal activity added another four levels, yielding

an adjusted offense level of 42, and, with his criminal history category pegged at III, the Sentencing

Guidelines (then mandatory) yielded a range of 360 months to life imprisonment. The district court

sentenced him at the low end of that range, to 360 months.


        In 2007, the Sentencing Commission promulgated Amendment 706, which reduced by two

the base offense level for most offenses involving cocaine base, including Barber’s. Soon thereafter,

Amendment 713 added Amendment 706 to the list of amendments in USSG § 1B1.10(c), giving it

retroactive effect.


        Barber filed a motion under § 3582(c)(2) seeking a reduced sentence due to the retroactive

application of the amendment, which lowered his base offense level from 42 to 40. The district court

denied the motion, finding that it lacked jurisdiction because although the amendment reduced

Barber’s base offense level, the applicable guideline range remained unaffected at 360 months to life.

Barber timely appealed.


                                                  II.


        On appeal, Barber argues that the district court erred in concluding that it lacked jurisdiction

to reduce his sentence because the terms “sentencing range” and “applicable guideline range” carry

different meanings, and the reduction in his base offense level qualified as a reduction in his


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No. 08-6151
United States v. Barber


“sentencing range” under Barber’s suggested definition, thus authorizing resentencing. In the

alternative, Barber contends that even without a reduction in his sentencing range, the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (2005), rendered the guidelines advisory

in all contexts, including resentencing proceedings held pursuant to § 3582(c)(2), and therefore the

district court erred in holding that it lacked jurisdiction.


A.      Resentencing Was Not Authorized Because the Amendments Did Not Lower Barber’s
        Applicable Guidelines Range


        Where the district court finds that it lacks authority to reduce a defendant’s sentence under

§ 3582(c)(2), we review de novo. United States v. Johnson, 569 F.3d 619, 623 (6th Cir. 2009).

Section 3582(c)(2) authorizes a district court to reduce the sentence “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,” but only “if such a reduction is consistent with the applicable policy

statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Barber’s argument

completely fails to account for the latter requirement.


        The Sentencing Commission’s policy statement applicable to this situation expressly

provides that a sentencing reduction “is not authorized” if the relevant guidelines amendment “does

not have the effect of lowering the defendant’s applicable guidelines range.”               USSG §

1B1.10(a)(2)(B). Here, the parties do not dispute that at all times, both before and after retroactive

application of Amendment 706, Barber’s “applicable guidelines range” remained constant at 360


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No. 08-6151
United States v. Barber


months to life. Accordingly, because any sentence reduction would have conflicted with the

Sentencing Commission’s applicable policy statements, we affirm the district court’s conclusion that

it lacked jurisdiction, and need not reach Barber’s strained linguistic argument regarding the meaning

of “sentencing range.”


        In any event, Barber’s “sentencing range” argument fails because the term does not carry the

meaning he attributes to it. According to Barber, “the meaning of ‘sentencing range’ is not just the

numerical ‘guideline range’ but also the offense level and the criminal history category,” and

therefore, so the argument goes, a change in any of those components alters the “sentencing range”

so as to authorize resentencing. True enough, the defendant’s offense level and criminal history

category factor into the calculation of the sentencing range. But “[t]he term ‘sentencing range’

clearly contemplates the end result of the overall guideline calculus, not the series of tentative results

reached at various interim steps in the performance of that calculus.” United States v. Mateo, 560

F.3d 152, 155 (3d Cir. 2009) (quoting United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008)).

In many cases, as here, changes in the underlying components like the offense level do not affect the

final “sentencing range” produced by the guidelines. And since Barber needed to establish a change

to that final product, rather than to one of the input factors, to authorize resentencing under §

3582(c)(2), the district court correctly held that it lacked jurisdiction.


B.      The District Court’s Conclusion That It Lacked Jurisdiction Did Not Violate Booker




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No. 08-6151
United States v. Barber


       Relying on the Ninth Circuit’s decision in United States v. Hicks, 472 F.3d 1167 (9th Cir.

2007), Barber argues alternatively that, post-Booker, the district court retained discretion to deviate

from the Guidelines on resentencing, even in the absence of a change in his applicable guidelines

range. Our recent decision in United States v. Washington, 584 F.3d 693 (6th Cir. 2009), forecloses

this argument. Washington held that sentence modification proceedings under § 3582(c)(2) do not

implicate the constitutional defect addressed in Booker. 584 F.3d at 699–700. Moreover, even if

this court had accepted Hicks’s holding, it would not aid Barber, since Hicks first demands that

resentencing be authorized by § 3582(c)(2) before granting the district court discretion to resentence

the defendant below the Guidelines range. Id. at 698 (citing Hicks, 472 F.3d at 1171). As explained

above, because Barber’s “applicable guidelines range” held steady at 360 months to life, § 3582(c)(2)

did not permit resentencing.


                                                 III.


       For these reasons, we affirm.




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