                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 13a0127p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                      No. 12-4118
          v.
                                                  ,
                                                   >
                                                  -
                         Defendant-Appellant. -
 KEITH THOMPSON, JR.,
                                                 N
                   Appeal from the United States District Court
                  for the Northern District of Ohio at Cleveland.
             No. 1:05-cr-00598-1—Donald C. Nugent, District Judge.
                          Decided and Filed: May 6, 2013
      Before: BATCHELDER, Chief Judge; GUY and BOGGS, Circuit Judges.

                                _________________

                                     COUNSEL
ON BRIEF: Melissa M. Salinas, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Toledo, Ohio, for Appellant. Linda H. Barr, UNITED STATES ATTORNEY’S
OFFICE, Akron, Ohio, for Appellee.
                                _________________

                                     OPINION
                                _________________

       RALPH B. GUY, JR. Circuit Judge. In January 2012, Thompson filed a motion
for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based on Amendments
706 and 750 of the United States Sentencing Guidelines. The district court denied the
motion and Thompson appealed. On appeal, we remanded the case to “allow the district
court to consider whether our recent decision in United States v. Jackson, 678 F.3d 442
(6th Cir. 2012), ha[d] any impact on Thompson’s case.” The district court concluded it
did not. We agree and affirm.




                                          1
No. 12-4118            United States v. Thompson                                          Page 2


                                                   I.

       On April 11, 2006, pursuant to a non-binding plea agreement, Thompson pleaded
guilty to three counts of possessing crack cocaine with the intent to distribute in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). In exchange, the government
dismissed the two remaining counts against Thompson and agreed that it would not
oppose Thompson’s request for a “downward departure or variance [that] would result
in a sentence of not less than 120 months.” The district court sentenced Thompson to
120 months of imprisonment with three years of supervised release.

       The sentencing transcript reflects the following: Thompson would have had a
base offense level of 24 under U.S.S.G. § 2D1.1 (the “crack cocaine guidelines”).
However, because he was deemed a career offender, Thompson’s actual base offense
level was 32 under U.S.S.G. § 4B1.1 (the “career offender guidelines”). The judge
granted a downward departure to 29 to reflect Thompson’s acceptance of responsibility.
The court found that the guidelines sentencing range was 151-188 months because
Thompson’s criminal history category was VI. After considering the factors contained
in 18 U.S.C. § 3553(a), the judge ultimately sentenced Thompson to 120 months of
imprisonment.        Such sentence was the same sentence contemplated by the plea
agreement.

       On remand, the district court read Jackson to mean that a defendant may be
eligible for a sentence reduction, pursuant to § 3582(c)(2), “when the crack cocaine
guidelines were ‘a relevant part of the analytic framework’ used when determining the
original sentence, and/or when the sentence was based, even in part, on the crack cocaine
sentencing guidelines.” The district court determined that the crack cocaine guidelines
were not relevant to Thompson’s sentence calculation. Rather, Thompson’s sentence
was based on his status as a career offender so there was no basis to grant his
§ 3582(c)(2) motion.1 The court also noted that it considered Thompson “to be a risk


       1
           The district court noted:
                   Neither the career offender guidelines, which were used to calculate
                   Mr. [Thompson’s] base offense level and applicable sentencing
                   range, nor any suggested or agreed sentence within the plea
No. 12-4118          United States v. Thompson                                          Page 3


to the community and would not exercise its discretion to lower his sentence even if a
reduction were allowable under the new sentencing guidelines.”

       Thompson argues on appeal that he was eligible for a reduced sentence under
§ 3582(c)(2) because the crack cocaine guidelines informed both the sentencing range
contemplated by the plea agreement and the ultimate sentence that the district court
imposed. Thompson also argues that, assuming he is eligible for a sentence reduction,
the district court erred in failing to examine the 18 U.S.C. § 3553(a) factors as required
by 18 U.S.C. § 3582(c)(2).

                                               II.

       “Generally speaking, once a court has imposed a sentence, it does not have the
authority to change or modify that sentence unless such authority is expressly granted
by statute.” United States v. Curry, 606 F.3d 323, 326 (6th Cir. 2010) (citations
omitted). One such statutory exception is found in 18 U.S.C. § 3582(c)(2), which allows
the court to reduce a prison 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
       . . . 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.

Id.

       As the Supreme Court has noted, this section provides a two-step inquiry. Dillon
v. United States, 130 S. Ct. 2683, 2691 (2010). The court must first determine that the
defendant is eligible for a reduction in his sentence. Id. To be eligible, two conditions
must be fulfilled:




               agreement was affected by subsection (c) or by the guideline
               amendments set forth in the Fair Sentencing Act. Therefore, neither
               Mr. [Thompson’s] applicable guideline range, nor his actual sentence
               was affected by the changes to the crack cocaine guidelines and he is
               not eligible for reduction under the Fair Sentencing Act.
No. 12-4118           United States v. Thompson                                     Page 4


       (1) the defendant was sentenced to a term of imprisonment based on a
       sentencing range that has been lowered by the Commission pursuant to
       28 U.S.C. § 994(o); and [2] the reduction is consistent with the
       Commission's applicable policy statements. 18 U.S.C. § 3582(c)(2). The
       applicable policy statements provide, in part, that “[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]n amendment . . . does not have the effect of lowering the
       defendant's applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

United States v. Williams, __ F. App’x __, No. 12-3353, 2013 WL 331579, at *2 - 3 (6th
Cir. Jan. 30, 2013) (second alteration in original). The court may then “consider whether
the authorized reduction is warranted, either in whole or in part, according to the factors
set forth in § 3553(a).” Dillon, 130 S. Ct. at 2691.

       If a district court “concludes that it lacks the authority to reduce a defendant's
sentence under the statute, the district court's determination that the defendant is
ineligible for a sentence reduction is a question of law that is reviewed de novo.” Curry,
606 F.3d at 327. “[T]he district court's decision to modify a sentence under § 3582(c)(2)
is discretionary and, as such, is reviewed by this Court for abuse of discretion.” Id.
(citation omitted).

       Thompson argues that two recent decisions—Freeman v. United States, 131 S.
Ct. 2685 (2011), and United States v. Jackson, 678 F.3d 442 (6th Cir. 2012)—compel
this court to hold that his sentence is eligible for reduction because his sentence was
“based on” the crack cocaine guidelines. These cases are inapposite.

       At issue in Freeman was whether the defendant’s sentence, which was entered
pursuant to a binding Rule 11(c)(1)(C) plea agreement, satisfied § 3582(c)(2)’s
requirement that the sentence be “based on” the guidelines range. Because Freeman was
a plurality decision, we recognize that Justice Sotomayor’s concurrence constitutes the
applicable holding, as it is the narrowest grounds for the decision. United States v.
Smith, 658 F.3d 608, 611 (6th Cir. 2011). That concurrence held that, “when a [Rule
11(c)(1)](C) agreement expressly uses a Guidelines sentencing range to establish the
term of imprisonment, and that range is subsequently lowered by the Commission, the
No. 12-4118           United States v. Thompson                                               Page 5


defendant is eligible for sentence reduction under § 3582(c)(2).” Freeman, 131 S. Ct.
at 2698 (Sotomayor, J., concurring).

        Freeman was concerned with whether the sentencing range contemplated by a
binding plea agreement was “based on” the guidelines. However, “in the normal
course[,] the district judge's calculation of the Guidelines range applicable to the charged
offenses will serve as the basis for the term of imprisonment imposed.” Id. at 2695.
Certainly, the district court based Thompson’s sentence on some part of the guidelines;
the issue (which Freeman does not address) is whether such sentence was based on the
crack cocaine guidelines and whether Amendment 750 would have the effect of
lowering his applicable guideline range. See 18 U.S.C. § 3582(c)(2) and U.S.S.G.
§ 1B1.10(a)(2)(B). Freeman is of little relevance.

        Thompson also relies on United States v. Jackson for his argument that he is
eligible for a sentence reduction under § 3582(c)(2). Like Thompson, the Jackson
defendant pleaded guilty to intending to distribute crack cocaine. And, also like
Thompson, Jackson qualified as a career offender, which meant his sentencing range was
based on the career offender guidelines.              Jackson is distinguishable because, at
sentencing, the district court granted Jackson a downward variance specifically because
of the “‘untenable’ disparity in the crack versus powder cocaine sentences.” 678 F.3d
at 444. There is no evidence that either the crack cocaine guidelines or the crack/powder
disparity, generally, played a role in Thompson’s sentencing.2 As a result, Jackson does
not control. See also United States v. Tillman, No. 12-1557, 2013 WL 150112, at *2
(6th Cir. Jan. 15, 2013) (unpublished decision); United States v. Williams, No. 12-3353,
2013 WL 331579, at *4 (6th Cir. Jan. 30, 2013) (unpublished decision) (both
distinguishing Jackson on similar grounds).

        Thompson also argues that the 120-month sentence contemplated by the plea
agreement and imposed by the district court was established by splitting the difference
between the crack cocaine guidelines in § 2D1.1 and the career offender guidelines in

        2
         We also note that Jackson never filed a motion pursuant to § 3582(c)(2) and, as a result, the
Jackson court did not inquire into that section’s various eligibility requirements.
No. 12-4118           United States v. Thompson                                                 Page 6


§ 4B1.1. Specifically, Thompson argues that, “while the basis for the 120-month
sentence was not stated explicitly, the relevant calculations indicate that the sentence
imposed was a compromise between the career offender and crack guidelines.”

         We are unable to draw the inference that Thompson suggests. As Justice
Sotomayor stated in her Freeman concurrence, “[t]o ask whether a particular term of
imprisonment is ‘based on’ a Guidelines sentencing range is to ask whether that range
serves as the basis or foundation for the term of imprisonment.” 131 S. Ct. at 2695. The
court will consider “what the district court actually said and did at the original
sentencing” to determine the basis for sentencing. United States v. Hameed, 614 F.3d
259, 264 (6th Cir. 2010) (internal quotation marks and citation omitted).

         There is nothing in Thompson’s sentencing transcript that indicates that the crack
cocaine guidelines were used to establish the 120-month term. Rather, the district
court’s downward variance was done pursuant to the factors listed in 18 U.S.C.
§ 3553(a), none of which related to the crack/powder disparity. The fact that the district
court acknowledged that the sentence contemplated by the plea agreement was
“sufficient and not greater than necessary to comport with the statutory purposes of
punishment, deterrence and safety to the community” is insufficient, standing alone, to
infer that the court’s sentence was “based on” the crack cocaine guidelines. Id.

         As the district court held, because Thompson was sentenced pursuant to U.S.S.G.
§ 4B1.1 (as a career offender), “neither Mr. [Thompson’s] applicable guideline range,
nor his actual sentence was affected by the changes to the crack cocaine guidelines and
he is not eligible for reduction under the Fair Sentencing Act.” We agree.3 Because the
amendment in question has no effect on the ultimate sentencing range imposed on
Thompson under the career offender guidelines, the district court did not err in declining
to grant his § 3582(c)(2) motion. See United States v. Perdue, 572 F.3d 288, 293 (6th
Cir. 2009). Furthermore, the district court’s original calculation of Thompson’s


         3
           United States v. Tillman is in accord with this determination. 2013 WL 150112, at *2 (holding
that “[a] defendant whose sentence is based upon the career offender sentencing guideline cannot benefit
from Amendment 750 because that amendment did not lower the career offender sentencing guidelines
range”).
No. 12-4118       United States v. Thompson                                    Page 7


sentencing range under the crack cocaine guidelines does not change the outcome.
Thompson’s status as a career offender essentially trumped the range established under
the crack cocaine guidelines. As a result, Thompson’s sentence was not “based on” the
crack cocaine guidelines. See Hameed, 614 F.3d at 262 (citing United States v. Gillis,
592 F.3d 696, 699 (6th Cir. 2009)).

       AFFIRMED.
