NOT RECOMMENDED F OR FULL -TEXT PUB L I CATI ON File Na me: 13a0065n.06 No. 12-1557 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. RODNEY TH EODORE TI L L MAN, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WESTERN 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. Rodney Theodore Tillman, a pro se fede ral prisoner, appea ls a district court order denying his motion for a sentenc e modification filed pursuant to 18 U.S.C. § 3582(c)( 2). Tillman pleade d guilty to possessing with the intent to distri b u t e five g rams or more of a mix ture or substance containi n g a detec table amount of coca ine base in violation of 21 U.S.C. § 841(a) (1); using and/or car rying a firea

rm in relation to a drug traff icking crime in violation of 18 U. S.C. § 924(c) (1)( A)(i) ; and being a felon in possession of a firea rm in violation of 18 U.S

. C

. § 922(g )(1)

. He was sentenc ed to serve 288 months of imprisonment for his crack co ca i n e conviction, followed by 60 months for his firea rms conviction, for a total of 288 mont h s . We aff irmed Tillman’s convictions on appea l. United States v. Tillman , 404 F. App’x 949, 950 (6th Cir. 2010), cert. de nied , 131 S. Ct . 1541 (2011). Tillman subsequently filed a motion to modify his sentenc e pursuant to section 3582(c) (2), following retroa ctive amendments to the sentenc ing guidelines related to the Fa ir Sentencing Act of

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. 12-1557 - 2 - 2 0 1 0 (F SA), Pub. L

. No. 111-220, 124 Stat. 2372. The district court direc ted that the probation office prepa

re a repor t of elig ibilit y reg arding Tillman’s section 3582(c) (2) motion. The probation office prepa

red the repor

t and deter

mined that Tillman was i n eli g ible for a section 3582(c) (2) sentenc e modification. The district court subsequently denied Tillman ’s motion for a sentenc e modification. On appea l, Tillman challeng es the district court’s denial of his motion for a sentenc e modification based upon the district court’s deter mination that his s t at u s as a car eer offe nder prec luded the re lief soug ht. The denial of a section 3582(c) (2) sentence reduc tion motion is revie wed for an abuse of discretion. United States v. Curr y , 6 0 6 F.3d 323, 327 (6th Cir. 2010). Howeve r, when a district court “conc ludes that it lacks t h e authority to reduc e a defe ndant’s sentenc e under [section 3582(c) (2)], the district court’s deter mination that the defe ndant is ineligible for a sentenc e reduc tion is a question of law that is revie wed de novo .” Id. “[A] defe ndant who has been sentenc ed to a t erm of imprisonment based on a sentenc ing rang e that has subsequently been lowere d by the [Unit ed States] Sentencing Commi ssion” may seek

a sentenc e reduc tion

. 1 8 U.S.C. § 3582(c) (2). A sentenc e reduc tion “is not authorized under” section 3582(c) (2) wher e an amendment to the sentenc ing guidelines “does not have the eff ect of loweringthe def

endant’ s applicable guideline ra ng e.” U SSG § 1B1.10(a) (2)( B)

. “The FSA, ena cted on August 3, 2010, amended se vera l statutes to increa se the amount of

cra ck-c ocaine nece ssary to trig g er mandatory minimum sentenc es.” United States v. Turner , 456 F. App’x 545, 547 (6th C i r. 2 0 1 2 ). Amendment 750 to the fede ral sentenc ing guidelines implemented the FSA and chang ed the drug quantity table found in U SSG § 2D1.1(c ) by reduc ing the base offe nse level for most coca ine base offe nses. See USSG App. C, Amend. 750. Amendment 750, eff ective N ovember

1, 2011, applies re troac tively

. Turner , 456 F. App’ x at 547. Tillman’s sentenc e is not elig ib le for a sentenc e reduc tion under section 3582(c) (2). The FSA does not provide a basis for reduc ing Tillman’s sentenc e beca use it does not apply retroa ctivelyNo. 12-1557 - 3 - to defe ndants, like Tillman, who we re sentenc ed befor e the statute was enac ted. See Dorsey v. United States , 132 S. Ct. 2321, 2335 (2012). Tillman’s criminal co nduct occur red in 2007, he pleade d guilty

in 2007, and he wa s sentence d in 2008, well befor e the F SA was ena cted in 2010. Although Amendment 750 is retroa ctive, it cannot benef it Tillman beca

use his sentenc e was derive d from his status as a car eer offe nder, rathe r than from the quantity of drug s for which he was held responsible. A def en d ant whose sentenc e is based upon the car eer offe nder sentenc ing guideline cann o t b enef

it from Amendment 750 beca use that amendment did not lower the car eer offe nder sentenc ing guidelines rang e. See United States v. W illiams , 607 F.3d 1123, 1125–26 (6th Cir. 2010). In fac t, had Amendment 750 exis ted when Tillman was sentenc ed, he would have been subject to the same sentenc e in light of his car eer offe nder status. See W illiams , 607 F.3d at 1125. The fa ct that Tillman was sente nced be low the applica ble sentenc ing guidelines rang e as a result of the district c ourt’s g rant of T illman’s reque st for a downwar d varia nce does not alter this result. See U

nited States v. Pem brook, 609 F.3d 381, 387 (6th Cir. 2010). Tillman’s ref ere nce to United States v. Jack

son , 678 F.3d 442, 444–45 (6th Cir. 2012), is inapplicable beca use nothing in the rec ord sug g ests that the district court based Tillman’s sentenc e on the cra ck coca ine guidelines rang e. The district court varie d downwar d from the car eer offe nder guidelines rang e of 262 to 327 months to impose a sentenc e of 228 months. That sentenc e was based on Tillman’s car eer offe nder rang e, not the rang e of 84 to 105 months that would have applied but for his car eer offe nder status. See Pembrook, 609 F.3d at 387. T illman is simply not elig ible for a sentenc e reduc tion under § 3582(c) (2). Tillman argues that he could not have been sentenc ed as a car eer offe nder beca use the district court de parte d downwar d two criminal hi story cate g ories. He points to USSG § 4A1.3(b)(3)( A), which limit s downwar d depar tures for car eer offe nders to one criminal history cate g ory . Howeve r, the sentenc ing transcr ipt reve als that the d i s trict court did not actua lly reduc e Tillman’s criminal history cate g ory . Instead, when g ranting Tillman’s reque st for a downwar d varia nce and fashioning the appropr iate sent en ce fo r Tillman, the district court simply “tre ated” Tillman as having a I V criminal history

cate g ory .No. 12-1557 - 4 - The district cour

t’s order is affirme d.