*

The Honorable Thomas W. Phillips, United States District Judge for the Eastern District of

Tennessee, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0220p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

MELVIN JOHNSON, JR. (08-3925); RODNEY

MOSS (08-3926),

 Defendants-Appellants.

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Nos. 08-3925/3926

Appeal from the United States District Court

for the Northern District of Ohio at Youngstown.

Nos. 98-00003-004; 98-00003-013—

Donald C. Nugent, District Judge.

Submitted: June 18, 2009

Decided and Filed: June 30, 2009 

Before: MOORE and GILMAN, Circuit Judges; PHILLIPS, District Judge.*

_________________

COUNSEL

ON BRIEF: Andy P. Hart, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Toledo, Ohio, for Appellants. Blas E. Serrano, ASSISTANT UNITED STATES

ATTORNEY, Cleveland, Ohio, for Appellee. 

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. In these consolidated appeals,

Defendants-Appellants Melvin Johnson, Jr., and Rodney Moss appeal the district court’s

denial of their motions to modify their sentences under 18 U.S.C. § 3582(c)(2). In 1998,

1
Nos. 08-3925/3926 United States v. Johnson et al. Page 2

Johnson and Moss were charged along with several other defendants in a multi-count

superseding indictment, the primary charge being conspiracy to possess with intent to

distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841 and 846. Johnson

pleaded guilty to the single conspiracy count, while Moss went to trial and was

convicted on the conspiracy count as well as one count of use of a communication

facility in committing a drug offense. Both Johnson and Moss were sentenced to 168

months of imprisonment and five years of supervised release. In 2008, after the

Sentencing Commission implemented retroactive guidelines applicable to offenses

involving cocaine base, Johnson and Moss each filed a motion for a reduction of

sentence under § 3582(c)(2). The district court denied both motions, finding that

Johnson and Moss were ineligible for sentence modification because, although their

convictions involved both powder cocaine and cocaine base, their sentences were based

solely on powder cocaine. Both Johnson and Moss now argue that the district court

erred in finding that their sentences were not based on cocaine base. For the reasons

discussed below, we AFFIRM the judgments of the district court denying their motions

for sentence reduction under § 3582(c)(2).

I. BACKGROUND

On February 17, 1998, Johnson and Moss were indicted, along with fourteen

other individuals, on a multi-count superseding indictment. Among other things, the

superseding indictment charged both Johnson and Moss with one count of conspiracy

with intent to distribute cocaine and/or cocaine base in violation of 21 U.S.C. §§ 841 and

846 (Count 1) and one count each of using a communication facility to commit a drug

offense in violation of 21 U.S.C. § 843(b) (Counts 8 and 15, respectively).

Johnson entered into a plea agreement under which Count 8 was dismissed, and

he pleaded guilty to Count 1, the conspiracy charge. A Presentence Investigation Report

(“PSR”) was entered as to Johnson in December 1998. Based on the 1998 edition of the

United States Sentencing Commission Guidelines Manual, the PSR recommended a

guideline range of 168 to 210 months, based on a total offense level of 33 and a criminal

history category of III. Johnson was given a base offense level of 34 under U.S.S.G.
Nos. 08-3925/3926 United States v. Johnson et al. Page 3

§ 2D1.1(c)(3), pursuant to the government’s assertion that Johnson was responsible for

greater than fifteen kilograms but less than fifty kilograms of cocaine. Johnson objected

to the calculation of the drug quantity, and a sentencing hearing was held at which the

government presented testimony in support of the drug amount. The government first

presented the testimony of Linda Heard, one of Johnson’s codefendants, that she bought

for and delivered to Johnson powder cocaine in quantities of at least two ounces on

twelve to fifteen separate occasions. She also testified that on three occasions she

witnessed Johnson cook the powder cocaine, converting it to crack cocaine, before

selling it. A federal agent, James McCann, testified to sales made by Johnson to various

other defendants. Based on this testimony, the district court adopted the guidelines

range recommended in the PSR. Johnson was sentenced to 168 months of imprisonment

and five years of supervised release.

Moss, on the other hand, proceeded to trial on both the conspiracy charge and the

communication-facility charge. At trial, Marvin Reese, one of Moss’s codefendants,

testified that Reese sold “cocaine” to Moss in amounts of nine or eighteen ounces once

or twice a week from 1995 until December 1997. Moss was found guilty and convicted

on both counts. A PSR as to Moss was submitted in October 1998. Based on the 1997

edition of the United States Sentencing Commission Guidelines Manual, the PSR

recommended a base offense level of 34 under U.S.S.G. § 2D1.1(c)(3), based on the

government’s assertion that Moss was responsible for greater than fifteen kilograms of

cocaine. Moss did not object to the estimation of the drug quantity or the calculation of

the base offense level. At sentencing, the district court adopted the base offense level

as calculated in the PSR, resulting in a total offense level of 34 and a criminal history

category of III, for a guidelines range of 168 to 210 months. The district court sentenced

Moss to 168 months of imprisonment on Count 1 and 48 months on Count 15, to be

served concurrently, and five years of supervised release.

Both defendants then filed direct appeals to this court. Johnson appealed his

sentence, arguing, among other things, that “the court improperly determined the amount

of drugs attributable to him.” United States v. Johnson, 24 F. App’x 309, 310 (6th Cir.
Nos. 08-3925/3926 United States v. Johnson et al. Page 4

2001) (unpublished order). This court “conclude[d] that the district court properly

determined the amount of drugs attributable to Johnson,” because “[a] review of the

sentencing transcript clearly establishes that two witnesses (co-defendant Heard and

Agent McCann) provided sufficient and reliable testimony that Johnson was responsible

for between fifteen and fifty kilograms of cocaine.” Id. at 311. Moss appealed both his

conviction and his sentence, challenging, among other things, “the quantity of cocaine

used to determine his sentence.” United States v. Moss, No. 98-4273, 2000 WL 553901,

at *1 (6th Cir. Apr. 26, 2000). This court denied Moss’s appeal, concluding, based on

Reese’s testimony, that “ample evidence was presented at trial to support a finding that

defendant was personally responsible for distributing more than 15 kilograms of

cocaine.” Id. at *5.

In early 2008, Johnson and Moss separately filed pro se motions for reduction

of sentence pursuant to 18 U.S.C. § 3582(c)(2), each arguing that, because his conviction

was based on conspiracy to distribute cocaine and cocaine base, he was entitled to a

discretionary reduction of his sentence in light of the recent amendments to the

Sentencing Guidelines dealing with the calculation of the base offense level for offenses

involving cocaine base. Both defendants were appointed counsel through the Office of

the Federal Public Defender for the Northern District of Ohio, who filed virtually

identical responses to both motions, stating,

Upon review of the defendant’s presentence investigation report, the

judgment and commitment order in this case, and an analysis of the issue

of eligibility conducted by the United States Pretrial Services and

Probation Office, the undersigned counsel has concluded that the

defendant’s sentence in this case was based on powder cocaine, not crack

cocaine.

Johnson Record on Appeal (“ROA”) at 85 (Johnson Resp. by Counsel); Moss ROA at

21 (Moss Resp. by Counsel). The government also filed identical motions in both cases,

stating that, based on an independent review of the PSR, the government “concurs with

the Federal Public Defender’s conclusion [] that the above-captioned defendant is

ineligible for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), U.S.S.G. § 1B1.10,

and Amendment 706.” Johnson ROA at 88 (Johnson Gov’t Reply); Moss ROA at 24
Nos. 08-3925/3926 United States v. Johnson et al. Page 5

(Moss Gov’t Reply). Johnson did not file any further documents, but Moss, acting pro

se, filed a motion for reconsideration, further arguing that his sentence was based on

cocaine base, entitling him to a two-level reduction under the amended guidelines.

On July 18, 2008, the district court denied both motions, finding for each that,

although the charge of conviction involved both powder cocaine and crack cocaine, the

sentence was based only on powder cocaine:

Defendant [Johnson] pled guilty to conspiracy to distribute cocaine

(powder) and cocaine base (crack). His sentence, however, was based on

the parameters for powder cocaine and not crack cocaine. He is therefore

ineligible for a reduction in sentence under 18 U.S.C. § 3582(c)(2),

U.S.S.G. § 1B1.10 and U.S.S.G. § 2D1.1.

Johnson ROA at 91 (Johnson Dist. Ct. Order).

Defendant [Moss] was convicted of Conspiracy to Possess with Intent to

Distribute Cocaine and Cocaine Base. Although both cocaine (powder)

and cocaine base (crack) were part of the indictment, the sentence in this

case was based on powder cocaine. Defendant is therefore ineligible for

a reduction in sentence under 18 U.S.C. Sec. 3582/U.S.S.G. Sec. 2D1.1[.]

Moss ROA at 37 (Moss Dist. Ct. Order). Both defendants filed timely appeals.

II. ANALYSIS

A. Standard of Review

Generally, “[a] motion for modification made under 18 U.S.C. § 3582(c)(2) is

reviewed for an abuse of discretion.” United States v. Wayne Carter, 500 F.3d 486, 490

(6th Cir. 2007). “‘Abuse of discretion is defined 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. Larry Carter, 463 F.3d 526, 528

(6th Cir. 2006) (quoting United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt.

Group, Inc., 400 F.3d 428, 450 (6th Cir. 2005)). Where, as here, the district court does

not simply decline to use its authority under § 3582(c)(2) but instead rules that it has no

authority to reduce the defendant’s sentence under the statute, the district court’s
Nos. 08-3925/3926 United States v. Johnson et al. Page 6

conclusion that the defendant is ineligible for a sentence reduction is a question of law

that is reviewed de novo. See, e.g., United States v. Webb, 565 F.3d 789, 792 (11th Cir.

2009); United States v. Sanchez, 562 F.3d 275, 277-78 & n.4 (3d Cir. 2009); United

States v. Fanfan, 558 F.3d 105, 107 (1st Cir. 2009); United States v. Baylor, 556 F.3d

672, 673 (8th Cir. 2009); United States v. Dunphy, 551 F.3d 247, 250 (4th Cir. 2009);

United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008).

B. Eligibility for Sentence Reduction Under § 3582(c)(2)

Section 3582(c)(2) provides an exception to the normal rule that a “court may not

modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). This

subsection allows for modification under the following circumstances:

[I]n 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 pursuant to 28 U.S.C. 994(o),

upon motion of the defendant or the Director of the Bureau of Prisons,

or on its own motion, the court may reduce the term of imprisonment,

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.

§ 3582(c)(2).

Section 1B1.10 of the Sentencing Guidelines identifies the guidelines

amendments which may be applied retroactively and establishes the proper procedure

for implementing an amendment under § 3582(c)(2). The current version of § 1B1.10,

which became effective March 3, 2008, provides generally that

[i]n a case in which a defendant is serving a term of imprisonment, and

the guideline range applicable to that defendant has subsequently been

lowered as a result of an amendment to the Guidelines Manual listed in

subsection (c) below, the court may reduce the defendant’s term of

imprisonment as provided by 18 U.S.C. 3582(c)(2). As required by

18 U.S.C. 3582(c)(2), any such reduction in the defendant’s term of

imprisonment shall be consistent with this policy statement.

U.S.S.G. § 1B1.10(a)(1); U.S. Sentencing Guidelines Manual app. C, amend. 712

(2008). Consistent with the statutory directive that a reduction may be given only to “a
Nos. 08-3925/3926 United States v. Johnson et al. Page 7

defendant who has been sentenced to a term of imprisonment based on a sentencing

range that has subsequently been lowered by the Sentencing Commission,” § 3582(c)(2),

Section 1B1.10 sets out two cases in which a reduction in a defendant’s term of

imprisonment is not authorized:

Exclusions.—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) None of the amendments listed in subsection (c) is

applicable to the defendant; or

(B) An amendment listed in subsection (c) does not

have the effect of lowering the defendant’s

applicable guideline range.

U.S.S.G. § 1B1.10(a)(2).

Also effective March 3, 2008, the Commission added Amendment 706, as

amended by Amendment 711, to the list of covered amendments in subsection

§ 1B1.10(c). See U.S. Sentencing Guidelines Manual app. C, amend. 713 (2008).

Amendment 706, which had become effective on November 1, 2007, lowered the base

offense level under U.S.S.G. § 2D1.1 for drug-trafficking offenses involving cocaine

base, also known as crack. Amendment 706, now amended by both Amendments 711

and 715, has the effect of reducing by two levels the base offense level for most

cocaine-base offenses.

Here, the district court found that neither Johnson nor Moss was eligible for a

reduced sentence under § 3582(c)(2), because their sentences were based solely on

powder cocaine, meaning that Amendment 706 would not have the effect of lowering

their sentences. Each defendant now argues that, because his conviction was based in

part on cocaine base and his PSR refers to conduct involving cocaine base, the district

court’s finding that his sentence was not based on cocaine base was clearly erroneous.

Both defendants state that “the threshold issue in this matter is whether his conviction

and sentence involved either base or powder cocaine, or some combination of both.”

Johnson Br. at 10; Moss Br. at 12. Neither defendant, however, provides support for the
Nos. 08-3925/3926 United States v. Johnson et al. Page 8

proposition that the court should look at the basis for the conviction rather than focusing

solely on the basis for calculating the sentence; instead, each defendant states only the

“general proposition” that “a conviction and sentence are inextricably linked.” Johnson

Br. at 10; Moss Br. at 12. It is true that both defendants’ convictions were based on both

powder cocaine and cocaine base. It is also clear, however, that both defendants were

sentenced under the guidelines applicable only to powder-cocaine offenses.

The district court correctly noted that Johnson pleaded guilty to conspiracy to

distribute both powder cocaine and cocaine base. The PSR, however, calculated his base

offense level of 34 using the drug quantity table for powder cocaine, and the resulting

guidelines range was adopted by the district court. Johnson’s base offense level was

derived from testimony presented by the government at the sentencing hearing

establishing Johnson’s responsibility for purchasing for distribution more than fifteen

but less than fifty kilograms of powder cocaine. Although Heard testified that Johnson

converted the powder cocaine to crack cocaine before distributing it, the drug quantities

used in the sentencing calculation were the quantities of powder cocaine. Section

2D1.1(c) of the 1998 guidelines, under which Johnson was sentenced, contains the

drug-quantity tables for calculating the base offense level for drug-trafficking offenses.

Under § 2D1.1(c)(3), at least fifteen but less than fifty kilograms of powder cocaine

results in a base offense level of 34. Had Johnson been sentenced based on the

cocaine-base quantity, the appropriate section would have been § 2D1.1(c)(1), which

gives a base offense level of 38 for offenses involving 1.5 kilograms or more of cocaine

base. Therefore, it is clear that Johnson was sentenced under the guidelines for

powder-cocaine offenses, not the increased offense levels for cocaine-base offenses.

Moss’s argument likewise fails. Again, the district court correctly noted that

both powder cocaine and cocaine base were part of the indictment under which Moss

was convicted. The PSR calculated his base offense level of 34 using the drug-quantity

table for powder cocaine, based on the government’s statement that Moss was

responsible for in excess of fifteen kilograms of cocaine. Moss did not object to either

the drug quantity or the base offense level, and this calculation was adopted by the
Nos. 08-3925/3926 United States v. Johnson et al. Page 9

district court. Section 2D1.1(c) of the 1997 version of the guidelines, under which

Moss’s sentence was calculated, set forth the drug-quantity tables for calculating the

base offense level for drug-trafficking offenses. Under § 2D1.1(c)(3), at least fifteen but

less than fifty kilograms of powder cocaine results in a base offense level of 34. Like

Johnson, had Moss been sentenced based on the cocaine-base quantity, the appropriate

section would have been § 2D1.1(c)(1), which gives a base offense level of 38 for

offenses involving 1.5 kilograms or more of cocaine base. The drug quantity was

supported by Reese’s testimony that “he sold cocaine to [Moss] in quantities of 1/4 and

1/2 kilograms, every week, and sometimes twice a week, for two to three years.” Moss,

2000 WL 553901, at *5. Although it is unclear whether Reese was referring to

quantities of powder cocaine or quantities of cocaine base, it is clear based on the

calculation adopted by the district court that these amounts were treated as powder

cocaine for purposes of the § 2D1.1(c) base-offense-level calculation. Therefore, Moss

was sentenced under the guidelines for powder-cocaine offenses, not the increased

offense levels for cocaine-base offenses.

Johnson and Moss argue, however “that whether or not the amount of cocaine

base under the superseding indictment, if properly calculated under the equivalency

table, would affect the overall guideline calculation is irrelevant.” Johnson Br. at 12;

Moss Br. at 14. This statement is simply incorrect. Under § 1B1.10(a)(2), a sentence

reduction is authorized only if one of the listed amendments is applicable to the

defendant and the amendment would “have the effect of lowering [his] applicable

guideline range.” Therefore, whether the amount of cocaine base would affect the

overall guideline calculation is explicitly made relevant by § 1B1.10(a)(2)(B). Because

both Johnson’s and Moss’s sentences were calculated based on only the powder-cocaine

offense levels, the district court correctly found that it was not authorized to reduce their

sentences under § 3582(c)(2). See United States v. Mendoza, 282 F. App’x 487, 488 (8th

Cir. 2008) (concluding that defendant was ineligible for relief under § 3582(c)(2)

because his sentence was “driven by the quantity of powder cocaine he conspired to

distribute,” whereas “Amendment 706 only affects those defendants whose guideline

range was determined based on their involvement with crack cocaine”); see also United
Nos. 08-3925/3926 United States v. Johnson et al. Page 10

States v. Johnson, 564 F.3d 419, 423 (6th Cir. 2009) (affirming district court’s

conclusion that it lacked authority to reduce defendant’s sentence under § 3582(c)(2)

where the sentence was based on the statutory mandatory-minimum term and the

defendant therefore “was not in fact sentenced based on a Guidelines range that was

subsequently reduced”).

III. CONCLUSION

Because both Johnson and Moss were not sentenced based on the guidelines

applicable to offenses involving cocaine base, we AFFIRM the judgments of the district

court denying the defendants’ motions for sentence reduction under § 3582(c)(2).