NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0508n.06 Case No. 09- 1494 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES OF AMERICA, P laintif f-App ellee,

v. GREGORY R HODES , Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITED STAT ES DIS TRICT COURT F OR THE E ASTERN DISTRICT OF MICHIG AN

BEFORE: BATCHELDER, Chief Judge; KEITH and ROGERS, Circ uit Jud ges. ALICE M. BATCHEL DER, Chief Judge. Gre g ory Rhodes appea ls the district court’s denial of his motion for a s en t en ce reduction following the S entenc ing Comm ission’s decision t o lower the Guidelines rang e for cra ck offe nses. Be cause Rhodes was sentenc ed as a car eer offe nder and his sentenc e wa s not based on the c rac k g uidelines, we A FF I RM. I. I n 1991, Gre g ory Rhod es pled g uilty to conspirac y to possess with the intent to distribute

coca ine and c ocaine base ( i.e., “c rac k”). A t his sentencing , Rhodes was de termined to be a car eer offe nder under U.S.S.G. § 4B1.1. His Total Offe nse L evel was found to be thi rt y -f i v e, an d his Criminal History Categ ory was found to be VI , resulting in a Guidelines imprisonment rang e of 292–365 months. The dist rict court sentenc ed him to 292 months in prison and t h e s en t en ce was upheld on appe al.N o . 0 9

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I n 2007, the Sentencing Guidelines wer e amende d to reduc e the base offe nse level s in U.S.S.G. § 2D1.1 for most cra ck offe nses. U.S.S.G. App. C, am end. 706 (2007). I n 2008, that amendment was made retroa ctive. U.S.S.G. App. C, amend. 713 (2008). Shortly there afte r, Rhodes filed an 18 U.S.C. § 3582(c) (2) motion to reduc e his sentenc e. The court denied the motion due to Rhodes’ status as a c are er of fende r. Rhodes now a

ppeals. II. This is one of a long line of case s in which a defe ndant argues that his sentenc e was “base d on” the cra ck g uidelines of U.S.S.G. § 2D1.1 when, in fac t, the defe ndant was sentenc ed as a car eer offe nder under U.S.S.G. § 4B1.1. This Court has repe atedly held that when a defe ndant is sentenc ed

as a car eer offe nder, his sentenc e is based on the car eer offe nder g uidelines alone; it is not based on the g uidelines for the underlying offe nse. See , e.g. , United States v. Payton , 617 F.3d 911, 914 (6th Cir. 2010); United States v. Bridgewater , 606 F.3d 258, 260 -6 1 (6th Cir. 2010); United States v. W illiams , 607 F.3d 1123, 1125- 26 (6th Cir. 2010); United States v. Pe rdue , 572 F.3d 288, 292-93 (6th Cir. 2009). That holding finds its roots in the languag e of 18 U.S.C. § 3582(c) (2), which applies only to a defe ndant whose sentenc e was “base d on” a subsequently -lower ed “sente ncing rang e.” See Perdue , 572 F.3d at 292. A distric t co u rt ’s m er e calc ulation of the offe nse level under the cra ck g uidelines does not re n d er a d ef endant’ s car eer offe nder designation inapplicable. Id

. at 292-93. Nor does a district court’s downwar d depar ture from the car eer offe nder g uidelines rende r a car eer offe nder desig nation inapplicable. Bridgewater , 606 F.3d at 261-62. When a defe ndant is sentenc ed

as a car eer offe nder, the car eer offe nder g uidelines do not simply supplement the cra ck g uidelines; they supplant

them. 2N o . 0 9

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Be cause Rhodes was sentenc ed as a car eer offe nder, and the car eer offe nder sentenc ing rang e has not bee n lowere d, he is inelig ible for r elief unde r § 3582(c )(2) . Acc ording ly , we AF F IRM

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