NOT RECOMMENDED F OR FULL -TEXT PUB L I CATI ON File Na me: 13a0126n.06 No. 12-1602 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. RONAL D L EE HI CKS, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : MARTI

N and SUTTON , Circuit J udg es; HOOD , District J udg e. *

PER CURI AM. R o n al d L

. Hicks, who is repr esente d by counsel, appea ls a district court order denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)( 2). In 1993, Hicks pleade d guilty to being a felon in possession of a firea rm in violation of 18 U.S.C. § 922(g ); using or car rying a di ffe rent firearm du ri n g and in relation to a crime of drug traff icking in violation 18 U.S.C. § 924(c) ; and car rying on a continuing criminal enter prise in violation of 21 U.S.C. § 848. Pursuant to a plea ag ree ment, the parties ag ree d that Hicks would be sentenc ed to 357 months of imprisonment. In exchang e for his guilty pleas, the g overnme nt ag ree d to dismiss the rema ining ninete en counts a g ainst Hicks, which could have resulted in a mandatory sentenc e of twenty

year s of imprisonment, plus an additional six ty -five y ear s of i mprisonment for various fire arm c ounts.

The Honora

ble J oseph M

. Ho od, United States District J udg e for the Easter n District of * Kentucky , sitti ngby

designation.No. 12-1602 - 2 - Hicks was sentenc ed to 357 months of imprisonment, as provided for in the plea ag ree ment. The sentenc e included a term of 297 months of imprisonment for car rying on a continuing criminal enter prise, a con cu rr en t t erm of 120 months of imprisonment for being a felon in possession of a firea rm, and a mandatory consec utive term of six ty months of i mprisonment for using or car rying a fire arm duringand in re lation to a crime of drugtraff

icking

. On October 31, 2011, Hicks filed a motion to reduc e his sentenc e under Amendment 750 to t h e United S tates S entenc ing Guidelines. Hicks argued that he was elig ible for relief beca u s e t h e sentenc e he r ece ived on his criminal enter prise convic tion was based on both powder coca ine and

coca ine base. Alternatively , Hicks argued that he was entitled to relief beca use his orig inal sentenc e

was based on a Sentencing Guidelines calc ulation err or contained in the plea ag ree ment. The district court de nied the motion. On appea l, Hicks challeng es the denial of his motion to reduc e his sentenc e, this time relying

on Amendment 706 to the Sentencing Guidelines. He also rea sserts his alternative sentenc ing err or argument. Where a district court finds a defe ndant ineligible for m o d i fica tion of sentenc e under section 3582(c)(2) , we r eview the decision de novo. United St ates v. Johnson , 569 F.3d 619, 623 (6th Cir. 2009). Section 3582 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). Even wher e a defe ndant is sentenc ed under a binding plea ag ree ment, the defe ndant may be elig ible for a reduc ed sentenc e pursuant to section 3582(c) (2) if the rec ord demonstrates that the ag ree d-upon sentenc e was derive d from a sentenc ing rang e applicable t o t h e charg ed offe nse. See Freem an v. United States , 131 S. Ct. 2685, 2699 (2011) (Sotomay or, J ., concur ring ). Whil e the g overnme nt raises the issue of whether Hicks’s sentenc e was derive d from the Sentencing Guidelines and, thus,No. 12-1602 - 3 - whether Hicks is el i gi b l e for a reduc tion, the g overnme nt still addre sses the merits of Hicks’s arguments. W e need not rea ch the issue of whether section 3582(c) (2) is applicable beca use Amendments 706 and 750 do not re duce H icks’s sentenc e. Amendment 706 decr ease s by two levels the offe nse level fo r co ca i n e base offe nses, see USSG § 2D1.1 (2007), and has been made retroa ctive eff ective Marc h 3, 2008. See USSG § 1B1.10( c) (May 1, 2008). Amendment 750 also reduces the offe nse level for coca ine base offe nses, see USSG Ap p . C, a me n d

. 750, and has been made retroa ctive eff ective November 1, 2011. USSG App. C, amend. 759; see also United States v. Jack son , 678 F.3d 442, 443–44 (6th Cir. 2012). No reduc tion is appropr iate, howeve r, wher e the amendment in question does not have the eff ect of loweringa def

endant’ s applicable SentencingGuidelines ra ng e. SeeUSSG § 1B1.10(a )(2) (B ). In this case , the retroa ctive application of Amendments 706 and 750 would not lower Hicks’s sentenc ing rang e. Section 2D1.5(a ) of the Sentencing Guidelines provides that the base offe nse level for a criminal enter

prise conviction is the g reater of thirty -eight, or the underly ing offe nse level, plus four. At the time of his sentenc ing, the prese ntence repor t calc ulated Hicks’s offe nse level as thirty

four. Hicks argues o n ap p ea l that Amendment 706 reduc es his offe nse level to thirty

. Even if Amendments 706 and 750 would lower Hicks’s underly ing offe nse level, his base offe nse level for his criminal enterprise conviction rema ins thirty -eight. This is beca use section 2D1.5(a ) di rec ts a district court to choose the g reater of his new offe nse level, plus four, or thirty -eight. Be cause Amendments 706 and 750 would not lower Hicks’s Sentencing Guidelines rang e, he is not entitled to section 3582(c) (2) r elief. Hicks’s alternative sentenc ing argument is not cog nizable under section 3582(c) (2) beca use it does not involve a s en tencing rang e that has been lowere d by the retroa ctive application of an amendment to the Sentencing Guidelines. See Dillon v. United States , 130 S. Ct. 2683, 2694 (2010). The district cour

t’s order is affirme d.