*

The Honorable Jerome Farris, Circuit Judge of the United States Court of Appeals for the Ninth

Circuit, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0250p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

IVORY DEAN PERDUE,

Defendant-Appellant.

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No. 08-4358

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 99-00334-001—James S. Gwin, District Judge.

Submitted: May 19, 2009

Decided and Filed: July 14, 2009 

Before: GILMAN, COOK, and FARRIS, Circuit Judges.*

_________________

COUNSEL

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

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

ATTORNEY, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Ivory Dean Perdue pled guilty to one

count of possessing crack cocaine with the intent to distribute the drug. He was

sentenced to 151 months’ imprisonment in April 2000. While Perdue was in prison, the

U.S. Sentencing Commission amended the Sentencing Guidelines, effectively lowering

1
No. 08-4358 United States v. Perdue Page 2

the sentencing ranges that applied to most offenses involving crack cocaine. Perdue

filed a motion for a reduction of sentence, arguing that he was entitled to relief based

upon the amendment. He now appeals the district court’s denial of that motion. For the

reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

The facts in this case are not in dispute. In November 1999, a federal grand jury

returned a superseding indictment charging Perdue with three counts of possessing crack

cocaine with the intent to distribute the drug, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A). Perdue pled guilty to one of those counts. In exchange for the plea, the

government dismissed the two remaining counts and further agreed to request a

downward departure in his sentence based upon Perdue’s cooperation and acceptance

of responsibility. 

The district court relied on the Presentence Report (PSR) in determining Perdue’s

applicable sentencing range under the United States Sentencing Guidelines. Perdue’s

base offense level for the instant offense was 32 under § 2D1.1 of the Guidelines. But

because he had previously been convicted of two aggravated drug-trafficking offenses,

Perdue was deemed a career offender under U.S.S.G. § 4B1.1. This caused Perdue to

have an adjusted offense level of 37, with an accompanying criminal history category

of VI. The PSR then recommended a three-level reduction because Perdue accepted

responsibility for his offense, yielding a net offense level of 34. See U.S.S.G. § 3E1.1.

At sentencing, the court adopted the PSR’s findings and further granted the

government’s motion for an additional five-level downward departure based upon

Perdue’s having provided substantial assistance to the government. See U.S.S.G.

§ 5K1.1. Perdue’s final offense level was thus reduced from 34 to 29, with his criminal

history category remaining at VI. The resulting Guidelines range was 151 to 188

months’ imprisonment. In April 2000, Perdue was sentenced at the bottom of the range

(151 months).
No. 08-4358 United States v. Perdue Page 3

While Perdue was in prison, the Sentencing Commission adopted Amendment

706 to the Guidelines, effective November 1, 2007. The retroactively applicable

amendment reduced the base offense levels in U.S.S.G.§ 2D1.1 for the unlawful

possession of all but the largest quantities of crack cocaine.

Perdue has invoked Amendment 706 in an effort to reduce his sentence. He filed

a motion in the district court pursuant to 18 U.S.C. § 3582(c)(2), which permits district

courts to modify certain terms of imprisonment “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission . . . .” The government

opposed the motion, arguing that the changes wrought by Amendment 706 to U.S.S.G.

§ 2D1.1 do not apply to Perdue, who was instead sentenced under the career-offender

Guidelines set forth in U.S.S.G. § 4B1.1. Agreeing with the government, the court

denied Perdue’s motion in September 2008. He has timely appealed.

II. ANALYSIS

A. Standard of review

A district court’s denial of a motion to modify a sentence under 18 U.S.C.

§ 3582(c)(2) is reviewed under the abuse-of-discretion standard. United States v. Wayne

Carter, 500 F.3d 486, 490 (6th Cir. 2007). This court has explained that “[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 W. Carter, 463 F.3d 526, 528 (6th Cir. 2006) (citation and internal quotation

marks omitted).

B. Statutory background

A district court may modify a defendant’s sentence only as provided by statute.

United States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001) (“The authority of a district

court to resentence a defendant is limited by statute” and is “expressly prohibit[ed] . . .

beyond those exceptions expressly enacted by Congress.”). Congress has given district

courts the discretion to reduce a sentence based upon a change in the Guidelines

affecting a defendant’s sentencing range under the following circumstances:
No. 08-4358 United States v. Perdue Page 4

[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.

18 U.S.C. § 3582(c)(2).

In § 1B1.10 of the Guidelines, the Sentencing Commission has identified those

amendments that may be applied retroactively and has also articulated the proper

procedures for implementing such amendments in cases already concluded. The

Commission issued a revised version of § 1B1.10 in December 2007 that emphasizes the

limited nature of relief available under 18 U.S.C. § 3582(c). Revised § 1B1.10(a), which

became effective on March 3, 2008, provides in pertinent part as follows:

(1) In General.—In 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.

(2) 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 [§ 1B1.10](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) (amended Dec. 11, 2007). In addition, § 1B1.10 states that “the

court shall substitute only the amendments listed in subsection (c) for the corresponding
No. 08-4358 United States v. Perdue Page 5

guideline provisions that were applied when the defendant was sentenced and shall leave

all other guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1).

The amendment in question in this case is Amendment 706, effective

November 1, 2007, which reduced the base offense level for most crack offenses.

Amendment 706 was further amended by the technical and conforming amendments set

forth in Amendment 711, also effective November 1, 2007. The crack-cocaine

amendment is one of the amendments listed in § 1B1.10(c) as having retroactive effect.

See U.S.S.G. § 1B1.10(c).

C. Application of Amendment 706 to Perdue

Two recent cases from this court have discussed whether Amendment 706

applies to defendants who have been sentenced under the career-offender Guidelines set

forth in U.S.S.G. § 4B1.1. The defendant in the first such case, United States v.

Alexander, 543 F.3d 819 (6th Cir. 2008), argued that the sentence imposed by the district

court was procedurally unreasonable. In particular, the defendant asserted that the court

failed to take into account the relatively harsh sentences received by individuals who,

like himself, had been convicted of crack-based offenses as compared to those convicted

of offenses involving powder cocaine. Id. at 824. Although the defendant did not

explicitly seek a reduced sentence on the basis of Amendment 706, this court opined that

he could not seek relief under that amendment because “the sentencing range applied to

his case is derived exclusively from the Guidelines’ unamended career-offender

provision set forth in U.S.S.G. § 4B1.1(a), not the amended drug-quantity table listed at

U.S.S.G. § 2D1.1.” Id. at 825.

The other recent case on point, United States v. Leasure, No. 07-6125, 2009 WL

1546370, at *7 (6th Cir. June 3, 2009), also held that Amendment 706 offers no relief

to those defendants who have been sentenced as career offenders. Leasure had argued

that his sentence should have been reduced because Amendment 706 lowered the base

offense level for crack cocaine by two levels. This court rejected that argument,

observing that a reduction under 18 U.S.C. § 3582(c)(2) applies only “if the defendant

was sentenced under the provision that was amended,” and that Leasure could not invoke
No. 08-4358 United States v. Perdue Page 6

the Amendment 706 because his offense level was “calculated pursuant to the unchanged

career offender provision.” Id.

Additional authority from our sister circuits bolsters the view that a district court

may not grant a motion for a reduction in sentence premised upon Amendment 706 if the

defendant seeking the reduction was originally sentenced as a career offender. See, e.g.,

United States v. Caraballo, 552 F.3d 6, 9 (1st Cir. 2008) (“In enacting [§ 3582(c)(2)],

Congress spoke with unmistakable clarity: before a district court can consider a

sentence modification thereunder, it must satisfy itself that the original sentence was

‘based on a sentencing range that has subsequently been lowered.’”) (emphasis in

original); United States v. Mateo, 560 F.3d 152, 155 (3d Cir. 2009) (“Because

Amendment 706 does not lower [the defendant’s] sentencing range due to his status as

a career offender, he may not seek reduction in sentence under § 3582(c)(2).”); United

States v. Forman, 553 F.3d 585, 589 (7th Cir. 2009) (same); United States v. Sharkey,

543 F.3d 1236, 1239 (10th Cir. 2008) (same). 

Despite the foregoing authority, Perdue contends that the district court erred in

denying his request for a reduction in sentence. But he does not contest his designation

as a career offender. Nor does he deny that his career-offender status was correctly

determined. Instead, Perdue argues that the district court erroneously assumed that

U.S.S.G. § 1B1.10(a) prevented the court from granting his motion for a reduction in

sentence. That assumption is false, according to Perdue, because Booker rendered all

of the Guidelines, including U.S.S.G. § 1B1.10(a), advisory and therefore nonbinding.

He further asserts that the advisory nature of the Guidelines means that the court had the

power to further reduce his sentence based upon Amendment 706.

This argument, however, is without merit. Even assuming arguendo that the

Sentencing Commission has no authority to limit the district court’s ability to reduce

Perdue’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). As ably explained by the court below:

[t]he language of § 3582(c)(2) favors the government’s interpretation.

By its terms, the statute applies to a defendant whose sentence was
No. 08-4358 United States v. Perdue Page 7

“based on” a subsequently-lowered “sentencing range.” Perdue’s

sentence was based on the guideline ranges applicable to career offenders

under § 4B1.1. The alternative base offense level under § 2D1.1

ultimately did not affect the calculation of the sentencing range under the

career offender classification, § 4B1.1. Thus, Amendment 706’s effect

on the defendants’ base offense levels would not lower the sentencing

ranges upon which their sentences were based.

(Emphasis added.)

In sum, we agree with Alexander, Leasure, and the analyses of our sister circuits.

Because Amendment 706 has no effect on the ultimate sentencing range imposed on

Perdue under the career-offender Guideline, the district court did not err in declining to

grant his motion for a reduction in sentence. Nor did the district court err by holding that

it was constrained by federal statute, not solely by the Guidelines, when it denied

Perdue’s motion.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district

court.