NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0217n.06 No. 10-3028 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. CARL DREWERY, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR T H E N O RT HERN DI STRI CT OF OH I O

BEF ORE: BA TCHEL DER, Chief Circuit J udg e; SUHRHEI NRI CH and GRI FF I

N, Circuit J udg es. PER C URI AM. Carl Dre wer

y appea ls the district court’s denial of his motion for a sentenc e reduc tion under 18 U.S.C. § 3582(c)(2) . We affir m. I

. Dre wer y was char g ed with conspira cy to possess with intent to distribute coca ine base in violation of 21 U.S.C. §§ 846, 841(a) (1) and (b)( 1)(A) (C o u n t 1 ); d istribution of coca ine base in violation of id. § 841(a) (1) and (b)( 1)(B ) (Count 60); and distribution of coca ine base in violation of i d

. § 8 4 1 (a )( 1 ) and (b)( 1)(A) (Count 61). He pled g uilty to Count 1 and was sentenc ed to 110 months’ imprisonment followed by three y ear s of supervised rele ase. There afte r, Drewer y filed a motion for a sentenc e reduc tion under 18 U.S

. C

. § 3 5 8 2 (c )(2) based on the amendments to the Sentencing Guidelines, which lowere d the base offe ns e l ev els for cra ck coca ine offe nses. TheNo. 10-3028

USA v. Carl Drewery
district court denie d Dre wer y ’s motion, concluding that he wa s ineligible f or a se ntence reduc tion beca use he w as sentenc ed as a car eer offe nder. D rew ery

timely appea ls. I I

. We have jurisdiction under 18 U.S.C. § 3742(a) (1) beca use Dre wer

y alleg es that his sentenc e

was imposed in violation of law. United States v. Bowers , 61 5 F. 3 d 7 1 5 , 722 (6th Cir. 2010). Where, as here , the district court did not exercise its discretion in denying t he motion but “conc lude[d] that it lack[ed] the authority to reduc e [t he] defe ndant’s sentenc e under the statute, the district court’s deter

mination

. . . i s a question of law that is revie wed de novo .” United States v. Curry , 606 F.3d 323, 327 ( 6th Cir. 2010) (citation omitted). I I I

. Section 3582(c) (2) provides that “in the case of a defe ndant who has been sentenc ed to a term of imprisonment based on a sentenc ing rang e that has subsequently been lowere d by the Sentencing Commi ssion

. . . the court may reduc e the term of imprisonment

. . . if such a reduc tion is consistent with applicable policy statements issued by the Sentencing Commi ssion.” 18 U.S.C. § 3582(c) (2). The cra ck coca ine amendments reduc ed the § 2D1.1 base offe nse levels for cra ck by two and wer e made retroa ctive. See U.S .S.G. § 2D1.1; U.S.S.G., Amends. 706, 711, and 715. Dre wer y filed a motion for a re duction under 18 U.S.C. § 3582(c) (2) based on the c rac k coca ine amendme nts, but the district court denied the motion. I t conclude d that the amendments did not lower Dre wer y ’s applicable sentenc ing rang e, and thus he was ineligible for a sentenc e reduc t i o n p u rs u ant to §

- 2 -No. 10-3028

USA v. Carl Drewery 3582(c) (2) beca

use, as a car eer offe nder, his applicable ra ng e was deter mined under U.S.S.G. § 4B1.1, not unde r § 2Dl.1. Dre wer y does not challeng e his car eer offe nder desig nation, but he argues that afte r “the three -leve l reduc tion under § 3E1.1 and t h e s i x -l evel reduc tion under § 5Kl.l[ ,]” he was “not sentenc ed within the § 4B 1.1 g uideline [rang e].” Dre wer y also asser

ts that the district court e rre d beca use “post-[ United States v. Booke r , 543 U.S. 2 20 (2005)], all g uideline provisions are dis cr et i o n ar y an d no longe r mandatory

. . . .” The problem, as Dre wer y admits, is that these arg uments are square ly fore closed by prec edent. See United States v. Payton , 617 F.3d 911, 914 (6th Cir. 2010) (finding that off ense- level reduc tions do not rende r a defe ndant sentenc ed as car eer offe nder elig ible for reduc tion under § 3582(c) (2)) ; United States v. Perdue , 572 F.3d 288, 292 (6th Cir. 2009) (re

jecting Bo o ke r -b as ed argument beca use, “[e]ven assuming

. . . that the Sentencing Commi ssion has no authority to limit the district court’s ability to reduc e [a defe ndant’s] sentenc e, Congress may cer

tainly cabin the court’s discretion, and it does so expressly in the text of 18 U.S.C. § 3582(c) (2)” ). 1 The district court there fore corr ectly deter mined that Dre wer

y was ineligible for a sentenc e reduc tion. AFF I RMED.

The latter argument is also prec luded by Dillon v. United States , — U.S. — , 130 S. Ct. 2683 1 (2010), which makes clea r that the reme dial aspec t of Booke r does not a pply to pr ocee dings under 18 U.S.C. § 3582(c)(2)

. Id. at 2693. - 3 -