*

The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of

Ohio, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0275p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

JAMES QUINN,

 Defendant-Appellant.

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No. 08-6217

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 98-00085-001—Charles R. Simpson III, District Judge.

Submitted: July 29, 2009

Decided and Filed: August 6, 2009 

Before: GILMAN and McKEAGUE, Circuit Judges; SARGUS, District Judge.*

_________________

COUNSEL

ON BRIEF: Frank W. Heft, Jr., Patrick J. Bouldin, OFFICE OF THE FEDERAL

DEFENDER, Louisville, Kentucky, for Appellant. Terry M. Cushing, Monica

Wheatley, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for

Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. James Quinn was sentenced in 1999

to 124 months of imprisonment for possession of crack cocaine and for being a felon in

possession of a firearm. He received an additional 60-month sentence for carrying a

firearm in relation to a drug-trafficking crime, to be served consecutively. In 2008, the

1
No. 08-6217 United States v. Quinn Page 2

district court reduced Quinn’s total sentence by 10 months, giving effect to a retroactive

amendment to the United States Sentencing Guidelines relating to the crackcocaine/powder-cocaine disparity. Quinn now argues on appeal that the district court

should have reduced his sentence even more, but that it failed to do so because it used

the wrong offense level in modifying his sentence under the Guidelines. For the reasons

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

I. BACKGROUND

A. Conviction and appeal

 In 1998, a jury convicted Quinn of possessing more than five grams of crack

cocaine, in violation of 21 U.S.C. § 844, possessing crack cocaine with the intent to

distribute the drug, in violation of 21 U.S.C. § 841(a)(1), carrying a firearm during and

in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), and possessing

firearms after a felony conviction, in violation of §§ 924(g)(1) and 924(a)(2). This court

has previously set forth the facts underlying Quinn’s conviction in United States v.

Quinn, 230 F.3d 862, 864 (6th Cir. 2000) (affirming Quinn’s conviction).

B. Sentencing

In March 1999, the district court sentenced Quinn to a total of 184 months of

imprisonment. Sixty months of the sentence arose from the third count of

conviction—carrying a firearm in relation to a drug-trafficking crime. This third-count

sentence represented the statutory minimum for the offense, see 18 U.S.C.

§ 924(c)(1)(A)(i), and the district court determined that the 60 months of imprisonment

would run consecutively with the remaining sentence, as required by § 924(c)(1)(D)(ii).

The remainder of Quinn’s sentence was based upon the then-mandatory United

States Sentencing Guidelines. Neither party disputes the correctness of the initial

Guidelines calculation. For the two crack-cocaine crimes, the base offense level was 26.

The two firearm-possession counts yielded a base offense level of 20. Using the

multiple-count calculation framework of U.S.S.G. § 3D1.4, the court concluded that the

level-26 group (the crack-cocaine crimes) yielded one “unit” for multiple-count
No. 08-6217 United States v. Quinn Page 3

purposes. The level-20 group (the firearm-possession crimes) added another half unit,

because the level-20 group was between 5 and 8 levels less serious than the level-26

group. Id. A total of one and a half multiple-count units resulted in a one-level increase

to Quinn’s base offense level of 26. With the final offense level of 27 and a criminal

history category of IV, Quinn’s Guidelines range was 100 to 125 months of

imprisonment. The district court imposed a sentence of 124 months. Quinn did not

challenge his sentence when he appealed his conviction to this court in 1999. Quinn,

230 F.3d at 862.

C. 18 U.S.C. § 3582(c)(2) modification of Quinn’s sentence

In 2007, the Sentencing Commission amended U.S.S.G. § 2D1.1(c) to reduce the

base offense level for most crack-cocaine offenses by two levels. U.S.S.G. App. C,

Amend. 706. The Commission also made the amendment retroactive. U.S.S.G.

§ 1B1.10(c). In light of these changes, the district court, pursuant to 18 U.S.C.

§ 3582(c)(2), elected to revisit Quinn’s sentence in 2008. Section 3582(c) is titled

“Modification of an imposed term of imprisonment.” It provides in pertinent part that

a term of imprisonment may not be modified after it is imposed

except that[,] . . . in 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[,] . . . 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 the applicable policy statements issued by the

Sentencing Commission.

18 U.S.C. § 3582(c)(2).

The district court thus applied Amendment 706 to reduce Quinn’s base offense

level for the crack-cocaine crimes from 26 to 24. Next, the court reapplied the multiplecount calculation of U.S.S.G. § 3D1.4. The crack-cocaine crimes again yielded one unit,

but the firearm-possession crimes now yielded a second full unit rather than the half unit

that had applied in the original sentencing calculation. This occurred because the

firearm-possession crimes now fell within four offense levels of the crack-cocaine
No. 08-6217 United States v. Quinn Page 4

crimes. These two units under § 3D1.4 led to a two-level increase in Quinn’s revised

base offense level of 24. The resulting offense level of 26 was thus only one level less

than the offense level at the time of Quinn’s original sentencing, and the new Guidelines

range was 92 to 115 months of imprisonment. Quinn received a new sentence of 114

months for the counts in question. Combined with the still-mandatory 60-month

consecutive sentence for carrying a firearm in relation to a drug-trafficking crime, his

new total sentence was 174 months of imprisonment.

When presented with the district court’s recalculation analysis as outlined above,

Quinn objected to the fact that he did not receive a two-level decrease to his final offense

level—a result that he had apparently expected under Amendment 706. He accordingly

argued in his Recalculation Memorandum that the district court should “reduce his final

offense level a full two levels, from 27 to 25,” rather than employing the U.S.S.G.

§ 3D1.4 procedure that led to a final offense level of 26, as described above. The district

court rejected Quinn’s request. In its order, the court held that Quinn’s Guidelines range

at the sentence-modification proceedings could not be calculated without reference to

§ 3D1.4 because “the court shall substitute only [the relevant amendment] for the

corresponding 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).

Quinn now appeals. He asks us to determine whether the district court erred “in

failing to give [him] a full, two level reduction on his crack cocaine sentence.”

II. ANALYSIS

Quinn’s argument on appeal, stated at its most basic level, is that the district

court used the wrong offense level under the Guidelines when it modified his sentence.

The district court employed a final offense level of 26, but Quinn believes that he is

entitled to be sentenced using an offense level of 25. Quinn made that argument to the

district court and thus has preserved this legal issue—whether the district court erred in

assigning him an offense level of 26 rather than 25—for de novo review on appeal. See

United States v. Peveler, 359 F.3d 369, 373 (6th Cir. 2004) (“[T]o the extent that . . .
No. 08-6217 United States v. Quinn Page 5

arguments . . . rest on the legal interpretation of various [sentencing] guidelines, the

district court’s interpretation of the sentencing guidelines presents a question of law,

subject to de novo review.” (internal quotation marks omitted)).

In his appellate briefing, Quinn supports his basic assertion that the district court

used the wrong offense level when it modified his sentence with detailed reasoning that

he did not present to the district court. He describes the district court’s use of U.S.S.G.

§§ 1B1.10(b)(1) and 3D1.4 as “mechanical,” and argues that “the District Court’s

reliance on [those two Guidelines] is misplaced because it effectively applied those

Guidelines as being mandatory.” According to Quinn, United States v. Booker, 543 U.S.

220 (2005), gave the district court discretion to recalculate his Guidelines range without

reference to those provisions. The government counters with the categorical argument

that “sentencing modification pursuant to 18 U.S.C. § 3582(c)(2) was unaffected by

Booker.”

Neither party’s argument quite hits the mark. Quinn, for his part, misstates the

effect of Booker on the discretion of district judges in sentencing. As this court and the

Supreme Court have explained many times, district judges must correctly perform the

largely mechanical calculation of the advisory Guidelines range before exercising

discretion in selecting a sentence. E.g., Gall v. United States, 128 S. Ct. 586, 596 (2007)

(“[A] district court should begin all sentencing proceedings by correctly calculating the

applicable Guidelines range.”); United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)

(reviewing a sentence to determine whether the district court “properly calculated the

applicable advisory Guidelines range”).

Quinn’s argument that the district judge had authority under Booker to disregard

U.S.S.G. §§ 1B1.10(b)(1) and 3D1.4 and simply subtract two levels from Quinn’s

previous final offense level therefore fails. Amendment 706 affected only U.S.S.G.

§ 2D1.1(c)—the portion of the Guidelines that sets forth the base offense level for crackcocaine offenses. All other Guidelines provisions that affect the final offense level

remain unchanged. See U.S.S.G. § 1B1.10(b)(1). Booker did not free the district court
No. 08-6217 United States v. Quinn Page 6

to disregard those other provisions and simply subtract two levels from Quinn’s final

offense level. See Gall, 128 S. Ct. at 596.

Simply stated, Amendment 706 resulted in a reduction of only one level in

Quinn’s case because he was convicted of firearm-possession crimes as well as crackcocaine crimes. When the severity of the crack-cocaine crimes was lessened by

Amendment 706, the relative impact of the firearms possession on Quinn’s Guidelines

range increased. See U.S.S.G. § 3D1.4. We therefore find no error in the district court’s

use of §§ 1B1.10(b)(1) and 3D1.4 to calculate Quinn’s revised Guidelines range.

The government directly responds to Quinn’s argument only in passing, correctly

stating that “even at original sentencing proceedings under Booker, the district court

must correctly calculate the guidelines range. Once the court has correctly calculated

the guidelines range, it has discretion to vary from that range either upward or

downward.” The government then proceeds to spend the majority of its brief arguing

that district courts have no discretion to vary outside the recalculated Guidelines range

in sentence-modification proceedings under 18 U.S.C. § 3582(c)(2).

But Quinn did not ask the district court to grant him a downward variance and

has not argued on appeal that the district court should have—or could have—varied

below the properly calculated Guidelines range. In fact, Quinn explicitly stated that “the

only relief [he] seeks is a full 2 level reduction in his crack sentence pursuant to

Amendment 706,” and contrasts his request with the arguments of defendants in other

cases who requested outside-Guidelines sentences at the modification stage. The

government’s arguments regarding the somewhat murky interplay between the Booker

line of Supreme Court cases and 18 U.S.C. § 3582(c)(2) are therefore only tangentially

relevant to this case. Compare U.S.S.G. § 1B1.10(b)(2) (prohibiting district courts,

when modifying pre-Booker sentencing determinations, from using 18 U.S.C.

§ 3582(c)(2) to reduce a term of imprisonment below the bottom of the recalculated

Guidelines range), and United States v. Rhodes, 549 F.3d 833 (10th Cir. 2008) (holding

that district courts lack authority to impose a sentence that falls below the amended

Guidelines range in a sentence-modification proceeding) with United States v. Johnson,
No. 08-6217 United States v. Quinn Page 7

553 F.3d 990, 992 (6th Cir. 2009) (making note of a district court’s authority to “reject

and vary from the crack-cocaine Guidelines based solely on a policy disagreement with

those Guidelines” (citing Spears v. United States, 129 S. Ct. 840 (2009))), and United

States v. Hicks, 472 F.3d 1167 (9th Cir. 2007) (holding that a newly calculated

Guidelines range in a sentence-modification proceeding is advisory). We thus note that

a circuit split exists on the question of whether a Guidelines range is mandatory in a

sentence-modification proceeding under § 3582(c)(2), but decline to resolve the issue

in this case because Quinn has not requested a downward variance.

In sum, we conclude that the district court properly calculated Quinn’s postAmendment 706 Guidelines range. We also reiterate that, in sentence-modification

proceedings, just as in an original sentencing, Booker and its progeny do not alter the

district court’s obligation to make such calculations according to the letter of the

Guidelines. But because Quinn has not sought a below-Guidelines sentence either in the

district court or in this court, we express no opinion as to whether the court was required

to sentence him within the revised Guidelines range calculated in the context of a

sentence-modification proceeding under 18 U.S.C. § 3582(c)(2).

Quinn also argues that the “automatic application of U.S.S.G. §§ 1B1.10(b)(1)

and 3D1.4 amounted to a denial of due process.” As discussed above, however, Quinn’s

sentence modification was performed fairly and correctly. See United States v. Salerno,

481 U.S. 739, 746 (1987) (noting that procedural due process requires fair

implementation of procedures that result in deprivation of liberty). Amendment 706

benefitted Quinn less than it benefitted other defendants because Quinn was convicted

of multiple crimes, including firearm crimes that the amendment did not affect. We

therefore conclude that Quinn has failed to establish a violation of his rights under the

Due Process Clause of the Fifth Amendment.
No. 08-6217 United States v. Quinn Page 8

III. CONCLUSION 

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

court.