                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0918n.06

                                          No. 12-6588                                  FILED
                                                                                  Oct 24, 2013
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE WESTERN DISTRICT OF
VONDA BRIDGEWATER,                                  )       KENTUCKY
                                                    )
       Defendant-Appellant.                         )



       BEFORE: DAUGHTREY, COOK, and WHITE, Circuit Judges.


       PER CURIAM. Defendant-appellant Vonda Bridgewater, a federal prisoner represented by

counsel, appeals the district court’s denial of a sentence reduction under 18 U.S.C. § 3582(c)(2).

For the following reasons, we AFFIRM.


       A third superseding indictment charged that between July 2007 and May 2009, Bridgewater

and others conspired to possess with intent to distribute fifty grams or more of crack cocaine, and

that in June of 2009 Bridgewater possessed with intent to distribute crack cocaine. In January of

2011, Bridgewater entered a Rule 11(c)(1)(C) guilty plea to those charges pursuant to a plea

agreement and supplement that called for application of a three-level reduction in the Guidelines

calculation for acceptance of responsibility, stated that the Government would consider making a

substantial-assistance motion, U.S.S.G. § 5K1.1, at sentencing, and provided for an agreed-upon ten
No. 12-6588
United States v. Bridgewater


year sentence, followed by five years of supervised release. The district court accepted the plea

agreement and sentenced Bridgewater to 120 months of imprisonment. Although the FSA new

mandatory minimums did in fact apply, the court and the attorneys proceeded under the assumption

that the ten-year, rather than the new five-year, mandatory minimum sentence controlled.


       Bridgewater subsequently filed a pro se motion for reduction of sentence. The district court

appointed counsel. Counsel objected to the Probation Office’s Memorandum of Recalculation,

which concluded that no reduction applied. The district court denied Bridgewater’s motion,

explaining:


       The probation office prepared a memorandum of recalculation which concluded that
       no reduction applied because the Fair Sentencing Act’s (FSA) crack cocaine
       guideline amendments had been applied to the defendant’s original sentence,
       although not the FSA’s lower thresholds for mandatory-minimum terms.


       The defendant, through counsel, objected arguing that given the Supreme Court’s
       ruling in Dorsey v United States, ____U.S.___, 132 S. Ct. 2321 (2012), the new
       lower mandatory minimums apply to post-FSA sentencing of pre-FSA offenders, like
       the defendant. Defense counsel also asserts that the parties based their binding plea
       agreement’s recommended sentence of 120-months imprisonment upon the 2D1.1
       guidelines (not the range generated by the career offender enhancement). Because
       the advisory guideline range absent the career offender enhancement would have
       been controlled by the 120-month mandatory minimum, defense counsel argues that
       the 120-month agreed term constituted a guideline sentence. Defense counsel points
       to the plea agreement’s reference to a 3-level reduction for acceptance of
       responsibility to support his position. He asks the Court to apply the FSA’s lower
       mandatory-minimum term of imprisonment and reduce the defendant’s sentence in
       keeping with the guideline range which would apply absent the career offender
       enhancement. Absent the pre-FSA, 120-month mandatory minimum and absent the
       career offender enhancement, the advisory guideline range would be 70-87 months.
No. 12-6588
United States v. Bridgewater


       At sentencing the Court accepted the binding plea agreement and sentenced the
       defendant to the agreed term of 120 months which was the statutorily required term.
       The Court also determined the defendant qualified as a Career Offender, resulting in
       a total offense level of 34, criminal history category of VI and advisory guideline
       range of 262-327 months. The sentence imposed (120 months) was below the
       advisory guideline range based upon the binding plea agreement.


       Despite defense counsel’s arguments, the Court finds that the 120-month agreed term
       was not based on the Guidelines. Instead, it was based upon the statutorily required
       term. Thus, the defendant is not eligible for a reduction under 18 U.S.C. §
       3582(c)(2). See Freeman v. United States, __ U.S. __ , 131 S. Ct. 2685 (2011). In
       Freeman the Court held that a defendant who enters into a Rule 11(c)(1)(C) plea
       agreement is eligible to seek a reduction in sentence under 18 U.S.C. § 3582(c)(2)
       if the original sentence was based upon the Sentencing Guidelines and that range is
       subsequently lowered by the United States Sentencing Commission. In this case, as
       previously stated, the sentence was based upon the mandatory minimum term
       required; therefore, a reduction is not authorized.


       Further this Court lacks jurisdiction to modify a term of imprisonment under §
       3582(c)(2) because § 3582(c)(2) only confers jurisdiction when the Sentencing
       Commission lowers a sentencing range, not when Congress establishes a new
       mandatory minimum. The Court originally applied the FSA’s guideline
       amendments. The amendments’ retroactivity has no impact in this case, and thus a
       reduction is not authorized. Beyond these reasons, the Court finds that the original
       sentence remains sufficient but not greater than necessary to comply with the
       purposes of sentencing.


       For these reasons, the defendant’s objections are overruled. The denial of this
       motion in no way limits the defendant’s ability to challenge her sentence under 28
       U.S.C. § 2255.


       When district courts deem a defendant ineligible for a sentence reduction, we review de

novo. United States v. McClain, 691 F.3d 774, 777 (6th Cir. 2012). “A district court may modify

a defendant’s sentence only as provided by statute.” United States v. Williams, 607 F.3d 1123, 1125
No. 12-6588
United States v. Bridgewater


(6th Cir. 2010). Section 3582(c)(2) provides a “limited adjustment to an otherwise final sentence.”

Dillon v. United States, 130 S. Ct. 2683, 2691 (2010). It applies when the defendant’s sentence is

“based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”

18 U.S.C. § 3582(c)(2); see also Williams, 607 F.3d at 1125. Under such circumstances, a court

may reduce a prison term “if consistent with [the Sentencing Commission’s] applicable policy

statements. 18 U.S.C. § 3582(c)(2); McClain, 691 F.3d at 777. To satisfy this second requirement,

“a guidelines amendment must ‘have the effect of lowering the defendant’s applicable guideline

range.’”     United States v. Hameed, 614 F.3d 259, 269 (6th Cir. 2010) (quoting U.S.S.G.

§ 1B1.10(a)(2)(B)).


       In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court addressed whether,

for purposes of § 3582(c)(2), a defendant entering a Rule 11(c)(1)(C) agreement received a sentence

based on the agreement only or also based on a sentencing guideline referenced in the agreement.

The narrowest and thus controlling opinion concluded that if the agreement “expressly uses a

Guidelines sentencing range to establish the term of imprisonment, and that range is subsequently

lowered by the [Sentencing Commission],” a defendant may seek a § 3582(c)(2) reduction.

Freeman, 131 S. Ct. at 2698 (Sotomayor, J., concurring) (emphasis added); see United States v.

Smith, 658 F.3d 608, 611 (6th Cir. 2011) (recognizing that Justice Sotomayor’s concurrence

controls).


       Bridgewater argues that her plea agreement “make[s] clear that the basis for the specified

term is [§ 2D1.1],” the amended crack cocaine guideline, because the plea agreement did not
No. 12-6588
United States v. Bridgewater


“expressly abandon the guidelines” and calls for a “3 level[] reduction below the otherwise

applicable Guideline for ‘acceptance of responsibility’” immediately after agreeing to the 10-year

sentence. Bridgewater also attempts to link her statutory minimum sentence to the guidelines by

arguing that: 1) U.S.S.G. § 5G1.1(b) makes the statutory minimum the guideline sentence when it

exceeds the otherwise applicable range; 2) the FSA’s new mandatory minimum would not affect the

guidelines minimum sentence under § 5G1.1(b); and 3) her new guidelines range would be 70 to 87

months instead of 120 months. However, Bridgewater’s guideline range was not 70 to 87 months,

but rather 262 to 327 months because she is a career offender, which explains the district court’s

ultimate conclusion that “the original sentence remains sufficient but not greater than necessary to

comply with the purposes of sentencing.” In any event, it is far from clear that Bridgewater’s

sentence was based on the Guidelines.


       Furthermore, § 3582(c)(2)’s “limited adjustment” extends only to sentences “based on a

sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(2); Dillon, 130 S. Ct. at 2691. Here, Bridgewater was sentenced under the already

amended guidelines.


       Accordingly, we AFFIRM the district court’s order denying the motion to reduce sentence.
