NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0620n.06 Case No. 09- 3868 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. HENRY SCOTT WILLIAMS, JR., Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITED STAT ES DIS TRICT COURT F OR THE NORT HERN DISTRICT OF OHIO

BEFORE: BATCHEL DER, Chief Judge; SUHRHEINRICH and GR IF F IN, Circuit Judges. ALICE M. BATCHEL DER, Chief Judge. Henr y Wil liams, J r., 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 cer tain cra ck offenses. Be cause Wil liams wa s s en t enced pursuant to a mandatory minimum , his sentenc e was not based o n t h e cr ac k g uidelines. We there fore AFF I RM the district court. I. I n September 2003, Wil liams pled guilty to conspirac y to possess with intent t o d i s t ri b u te

coca ine base in violation of 21 U.S.C. §§ 846, 841(a) and (b)( 1)(A- B)

. Due to prior conviction s , Wil liams was subject to the statutory mandatory minimum sentence o f 2 4 0 m o nths pursuant to § 841(b). Wil liams’s plea ag ree ment stipulated that beca use of the mandatory min i m u m , the first offe nse level containing 240 months – in this case level 36 – would become the base offe nse level, and that Wil liams should be g rante d a 3-leve l decr ease for ac ce p t an ce of responsibility

. TheN o . 0 9

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g overnme nt moved for a downwar d depar ture for s ubstantial assistance pursuant to U.S.S.G. § 5K1.1, p er mitti ng the court to sentenc e Wil liams below the mandatory minimum , and the court reduc ed the offe nse level to 30 – reduc tions of three points for acc eptanc e of responsibility and three points for substantial a ssistance – which corr esponded to a Guidelines rang e of 108 to 135 months in prison. The court sentenc ed Wil liams to 108 months and Wil liams did not pursue a direc t appea l. I n 2007, the Sentencing Guidelines wer e amende d to reduc e the base offe nse levels i n U.S.S.G. § 2D1.1 for most cra ck offe nses, including those committed by Wil liams. U.S.S.G. App. C, amend. 706 (2007) (“Am endment 706”). I n 2008, that amendment was made retroa ctive. U.S.S.G. App. C, amend. 713 (2008). I n Marc h 2009, Wil liams filed a motion to reduc e his sentenc e pursuant to 18 U.S.C. § 3582(c)( 2). The district c ourt denied the motion. W illiams now appeals. II. Gene rally , this court revie ws the denial of a motion to modify a sentenc e under 18 U.S.C. § 3582(c) (2) for abuse of discretion. United States v. Perdu e , 5 7 2 F. 3 d 2 8 8, 290 (6th Cir. 2009). Howeve r, if the district court did not exercise its d i s cr et i o n in denying the motion, but “instead

co n clude[d] that it lack[ed] the authority to reduc e a defe ndant’s sentenc e under the statute , t h e district court’s deter

mination that the defe ndant is ineligible

. . . is a question of law that is revie wed de novo.” United States v. Curry , 606 F.3d 323, 327 ( 6th Cir. 2010). Section 3582(c) (2) allows a district court to reduc e a prisoner’ s sentenc e if that sentenc e was

“ based on a sentencing rang e that has subse quently been lowe red by

the Sentencing Commi ssion

. . . i f s u ch a reduc tion is consistent with applicable policy statements issued by the Sentencing Commi ssion.” (empha sis added)

. Wil liams argues that beca use the underly

in g o f f e n s e th a t trigg ere d 2N o . 0 9

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his mandatory minimum sentenc e was a cra ck offe nse, his sentenc e was “base d on ” t h e cr ack g uidelines, which wer e lowere d by Amendment 706 s u bsequent to his sentenc ing. Wil liams’s argument fails bec ause his sente nce w as not “ba sed on” the cra ck guidelines. This case is g overne d by United States v. Johnson , 564 F.3d 419 (6th Cir. 2009). I n Johnson , 564 F.3d at 423, under near ly indisti ng uishable circ umstances, we h el d that when an offe nder is sentenc ed pursua

nt to a mandatory

minimum , his sentence is “based on” the mandator y minimum itself; it is not “base d on” the Guidelines rang e for the underly ing offe nse. Her e, as in Johnson , the sentenc e was “base d on” the mandatory minimum

. “Thus, if [W illiams] wer e rese ntence d today , the amende d Guidelines would still require a sentenc e of 240 months, and the court would be depar ting from this same 240-month baseline if ag ain prese nted with the g overnme nt’s substantial-assistance motion.” Id

. Wil liams prese nts sever al arguments in his favor , none of which are availing

. He argues that Johnson does not apply to his case be cause in Johnson , both the district court and this cour t made clea r that even if it had been within the discretion of the district court to reduc e the sentenc e, the sentenc ing judge would never theless have denied th e r e q u e s te d s e n te n c e reduc tion. That is irrele vant beca use the key holding in Johnson was that the district court did not have the discretion under § 3582(c) (2) to reduc e t h e s en tence ; it matters not what the district court would have done if it did have that discretion. Wil liams f

urther claims that Johnson was somehow defic ient beca use it f ailed to a ddress a district court’s expanded discretion in sentenc ing under Uni t ed S t a t es v. Booke r , 543 U.S. 220 (2005), which held that the Sentencing Guidelines are advisory

. Wil liams’s relianc e on Booke r , 3N o . 0 9

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howeve r, i s u n availing, beca use in Dillon v. United States , 130 S. Ct. 2683, 2692 (2010), the Supreme Court held that Booke r is inapplicable to § 3582(c) (2) proce eding s. L ikewise, Wil liams’s relianc e on United States v. Grant , 567 F. 3 d 7 7 6 (6t h Cir. 2009), is misguided beca use Grant involved a re quest for a

sentenc e re duction under F ed. R. Crim. P. 35(b), not § 3582(c). Finally , Wil liams argues that his se ntence was “base d on” the cra ck g uidelines beca use his plea ag ree ment stated the amount of cra ck involved in his offe nse and his prese ntence repor t ref ere nced the cra ck g uidelines. This argument also lacks merit. Neither a ref ere nce to the amount of cra ck involved nor a ref ere nce to the cra ck g uidelines alters the fac t that Wil liams was sentenc ed pursuant to a mandatory minimum

. Cf. United States v. Perdue , 572 F.3d 288, 290 (6th Cir. 2009) (holding that the defe ndant’s sentenc e was “base d on” the car eer offe nder g uidelines despite the fac t that the district court c alculate d an off ense le vel pursuant to the c rac k g uidelines). Acc ording ly , Wil liams’s sentence was “ based on” the m andator y minimum provision of § 841(b); it was not “base d on” the cra ck g uidelines. Wil liams was there fore ineligible for a sentenc e reduc tion pursuant to § 3582(c)( 2). III. For the fore g oing rea sons, we AF F IRM the district court’s denial of Wil liams’s motion for

a re duction of sentenc e.

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