NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0223n.06 No. 10-6107 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. PAUL MARRI OTT, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF TENNESSEE

Be fore : SI L ER and GRI FF I N, Circuit J udg es; TARNOW, District J udg e. * TARNOW , District J udg e. Def endant Paul Marr iott appea ls from the district court’s denial of his Motion for a Reduction of Sentence

. The district court based its denial of Marr iott’s motion

on its lack of authority to reduc e Marr iott’s sentenc e acc ording to 18 U.S

. C

. § 3 5 8 2 (c). For the following rea sons, we AF F IRM the district court’s judg ment. I. I n 1998, following a jury trial, Appellant was found g uilty of (1) conspirac y to manufa cture , distribute, and possess with the intent to distribute a quantity of a mix ture of substance containing

coca ine base (cr ack) , in violation of 21 U.S.C. §§ 841(a) (1), 846; (2) aidi n g an d abetting the manufa cture of a mix ture of substance containing coca ine base (cr ack) , in violation of 21 U.S.C. §

T h e H o n o r a b l e A r t h u r J

. T a r n o w , U n i t e d S t a t e s D i s t r i c t J u d g e f o r t h e E a s t e r n D i s t r i c t o f M i c h i g a n , s i t t i n g * b y d e s i g n a t i o n . 1No. 10-6107

United States v. Marriott
846 and 18 U.S.C. § 2; and (3) aiding an d abetting the possession with the intent to distribute

coca ine hy drochloride , in violation of 21 U.S.C. §§ 841(a) (1), 84 1 (b )( 1 )( C ), and 18 U.S.C. § 2. Neither the indictment nor the jury verdic t specified qua

ntities of drug s. The Presentenc e I nvestig ation Report prepa red for the district court opined that the powder

coca ine found during Appellant’s a rre st was in the proce ss of being conver ted into c rac k coca ine. Appellant cha lleng ed this contention. At an evidentiar

y hear ing held to resolve the challeng e, the district court acc epted the testimony of a g overnme nt expert that the conver sion proce ss from powder coca ine to cra ck coca ine would have y

ielded somewhe re be tween 52.7 a nd 66.0 g rams of cra ck cocaine. The dist rict cour t found t hat a base offense level of 32 was appropriat e, and that there wer e no specific adjustments applicable

. Combined with the rec ommended Criminal History Categ ory of I I , Appellant fell within

a sentenc ing g uidelines rang e of 135 to 168 months. The district co u rt applied the statutory mandatory minimum term under 21 U.S.C. § 841(b)( 1)(A) and sentenc ed Appellant to twenty y ear s incar cer ation. After sentenc ing, Appellant timely appea led his conviction and sentenc e. This Court aff irmed, United States v. Marriott , 225 F.3d 660 (6th Cir. 2000). Ap p el l ant subsequently challeng ed his sentenc e in a Motion to Vac ate under 2 8 U.S.C. § 2255. The district court denied Appellant’s motion and denied a cer tificate of appea lability

. This Court also declined to issue a
cer tificate of appea lability

.

2No. 10-6107

United States v. Marriott

II. Appellant commence d the instant action on Marc h 24, 2008. Appellant moves to reduc e his
sentenc e under 18 U.S.C. § 3582(c) and U.S. Sentencing Guidelines § 1B1.10( a). Appellant arg ues that his sentenc e should be reduc ed under Amendment 706, which permits a two-leve l reduc tion in the base offe nse level for many cra ck-c ocaine offe nses. The district court found that the retroa ctive

cra ck amendment d i d n o t apply beca use Appellant had been sentenc ed acc ording to a mandatory minimum and not a g uidelines rang e. The district court there fore found that it lacke d the authority to reduc e Appe llant’s sentenc e. Appellant filed a motion for rec onsideration, arg uing that he was elig ible for a reduc tion in
sentenc e beca

use the twenty -y ear mandatory minimum should not have been applicable

. Appellant arg ues that, beca

use the indictment and jury verdic t did not specify a particula r quantity of drug s, he in fac t had only been convicted of a lesser offe nse under 21 U.S.C. § 841(b)(1 )(C), for which the mandatory minimum was only 10 y ear s. Appellant asser ts that he would there fore have fallen into the g uidelines rang e of 135 to 168 months, and wo u l d be elig ible for a reduc tion under the
retroa ctive cra ck amendment. The district court, rely ing on Dillon v. United States , 130 S. Ct. 2683 (2010), he ld that it could not consider such a n issue under 18 U .S.C. § 3582(c). Appellant’s arg

ument proce eds in two parts. Fi rst, Appellant arg ues that, based on the Supreme Court’s decision in Apprendi v. New Jerse y , 530 U.S. 466 (2000), he should not have been subject to a mandatory minimum

. Second, Appellant arg ues that beca use he should not have been

3No. 10-6107

United States v. Marriott subject to a mandatory m i n i m u m , t h e district court had authority to reduc e his sentenc e under 18 U.S.C. § 3582(c). III. This Court revie ws de novo a d i s t ri ct court’s deter mination that it lacks the authority to modify a sentenc e under 18 U.S.C. § 3582(c)

. See United States v. Hamee d , 614 F.3d 259, 262 (6th Cir. 2010). IV. A district court may modify a previously -imposed sentenc e only as provided by statute. United States v. Johnson , 564 F.3d 419, 421 (6th Cir. 2009). “Unless the basis for rese ntencing falls within one of the specific cate g ories authorized by section 3582(c) , the d i s t ri ct court lack[s] jurisdiction to consider [t he defe ndant’s] reque st.” United States v. W illiams , 607 F.3d 1123, 1125 (6th Cir. 2010) (quoting United States v. Smartt , 129 F.3d 539, 541 ( 10th Cir. 1997)). [I ]n 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 subsequentl y b ee n lowere d by the Sentencing Commi ssion

. . . the court may reduc e the term o f imprisonment

. . . if such a reduc tion is consistent with applicable policy statements issued by t h e S en tencing Commi ssion. 18 U.S.C. § 3582(c)(2)

. Appellant attempts to use § 3582(c) as a vehicle to rea rg ue the propriety of his orig inal
sentenc e. The Supreme Court h as h el d t h at “§ 3582(c) (2) does not authorize a sentenc ing or
rese ntencing proce eding . I nstead, it provides for the m odif[ication of] a ter m of imprisonment by g iving courts the power to reduc e an otherwise final senten ce i n ci rcumstanc es specifie d by the

4No. 10-6107

United States v. Marriott
Commi ssion.” Dillon , 130 S. Ct. at 2690 (interna l quotation marks omitted) (alter ation in orig inal). I ndeed, “plena

ry sentenc ing proce eding s are distinct fr om § 3582(c) sentenc e reduc tions.” United States v. W

ashington , 584 F.3d 693, 700 (6th Cir. 2009); see also Dillon , 130 S. Ct. at 2692 (distinguishing betwee n 3582(c) h e a r in g s a n d “ p le n a r y r e s e n te n c in g p r o c e e d ings” ). Thus, the district
court was corr ect in its deter mination that it could not consider Appellant’s Six th Amendment arg uments conce rning drugquantities in a motion brought unde r 18 U.S.C. § 3582(c)( 2). Appellant also arg

ues that, beca

use a jury did not de termine bey ond a rea sonable doubt the amount of drug s upon which his conviction under 21 U.S.C. § 841(b)( 1)(A) was based, he should have fallen in a sentenc ing g uidelines rang e of 135 to 168 months, based on a lesser conviction under 21 U.S.C. § 841(b)( 1)(C). Appellant’s arg ument fails beca us e his sentenc e is not “base d on a sentenc ing rang e” as re quired by 18 U.S.C. § 3582(c)

. Appellant was sentenc ed acc ording to a mandatory minimum require ment. I n United States v. Johnson , 564 F.3d 419 (6th Cir. 2009) , this Court found that a defe ndant who had been subject to a mandatory minimum was not s entenced “base d on a sentenc ing rang e,” an d t h ere fore could not benef it from Amendment 706 and § 3582(c) (2). Id. at 423. Be cause Ap p el l ant’s sentenc e was not based on a sentenc ing rang e, we aff irm the district court’s deter

mination that it did not have the authority to reduc e Appellant’s sentenc e under t he terms of 18 U.S.C. § 3582(c) and Amendme nt 706. AF F IRMED.

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