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File Name: 11a0508n.06

Case No. 09-1494

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GREGORY RHODES,

Defendant-Appellant.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF MICHIGAN

BEFORE: BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges.

ALICE M. BATCHELDER, Chief Judge. Gregory Rhodes appeals the district court’s

denial of his motion for a sentence reduction following the Sentencing Commission’s decision to

lower the Guidelines range for crack offenses. Because Rhodes was sentenced as a career offender

and his sentence was not based on the crack guidelines, we AFFIRM.

I.

In 1991, Gregory Rhodes pled guilty to conspiracy to possess with the intent to distribute

cocaine and cocaine base (i.e., “crack”). At his sentencing, Rhodes was determined to be a career

offender under U.S.S.G. § 4B1.1. His Total Offense Level was found to be thirty-five, and his

Criminal History Category was found to be VI, resulting in a Guidelines imprisonment range of

292–365 months. The district court sentenced him to 292 months in prison and the sentence was

upheld on appeal.
No. 09-1494, United States v. Rhodes

In 2007, the Sentencing Guidelines were amended to reduce the base offense levels in

U.S.S.G. § 2D1.1 for most crack offenses. U.S.S.G. App. C, amend. 706 (2007). In 2008, that

amendment was made retroactive. U.S.S.G. App. C, amend. 713 (2008). Shortly thereafter, Rhodes

filed an 18 U.S.C. § 3582(c)(2) motion to reduce his sentence. The court denied the motion due to

Rhodes’ status as a career offender. Rhodes now appeals.

II.

This is one of a long line of cases in which a defendant argues that his sentence was “based

on” the crack guidelines of U.S.S.G. § 2D1.1 when, in fact, the defendant was sentenced as a career

offender under U.S.S.G. § 4B1.1. This Court has repeatedly held that when a defendant is sentenced

as a career offender, his sentence is based on the career offender guidelines alone; it is not based on

the guidelines for the underlying offense. See, e.g., United States v. Payton, 617 F.3d 911, 914 (6th

Cir. 2010); United States v. Bridgewater, 606 F.3d 258, 260-61 (6th Cir. 2010); United States v.

Williams, 607 F.3d 1123, 1125-26 (6th Cir. 2010); United States v. Perdue, 572 F.3d 288, 292-93

(6th Cir. 2009). That holding finds its roots in the language of 18 U.S.C. § 3582(c)(2), which applies

only to a defendant whose sentence was “based on” a subsequently-lowered “sentencing range.” See

Perdue, 572 F.3d at 292. A district court’s mere calculation of the offense level under the crack

guidelines does not render a defendant’s career offender designation inapplicable. Id. at 292-93. 

Nor does a district court’s downward departure from the career offender guidelines render a career

offender designation inapplicable. Bridgewater, 606 F.3d at 261-62. When a defendant is sentenced

as a career offender, the career offender guidelines do not simply supplement the crack guidelines;

they supplant them.

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No. 09-1494, United States v. Rhodes

BecauseRhodes was sentenced as a career offender, and the career offender sentencing range

has not been lowered, he is ineligible for relief under § 3582(c)(2). Accordingly, we AFFIRM.

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