United States v. Artavus Kelly , 350 F. App'x 34 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0700n.06
No. 08-5666
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Oct 28, 2009
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
ARTAVUS KELLY, )
)
Defendant-Appellant. )
)
BEFORE: MARTIN, ROGERS, and COOK, Circuit Judges.
ROGERS, Circuit Judge. Defendant Artavus Kelly appeals the district court’s denial of his
motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Kelly pled guilty to a crack cocaine
offense in 2004 pursuant to a written plea agreement. Kelly alleges that he is entitled to a sentence
reduction because the district court relied on the now-amended crack provision of the Sentencing
Guidelines when it determined his base offense level and initial Guideline range. However, because
Kelly’s ultimate sentencing range was based on the career offender provision of the Guidelines, not
the crack provision, he is not entitled to a sentence reduction.
In 2004, Kelly pled guilty to possession with intent to distribute 50 grams or more of crack
cocaine – his third drug felony conviction – pursuant to a written plea agreement. In that agreement,
Kelly acknowledged that he was a career offender under the Guidelines. The Government agreed
not to file an enhancement that would expose Kelly to a mandatory life sentence, and the parties
No. 08-5666
United States v. Kelly
agreed to jointly recommend a downward departure to a final sentence of 168 months in prison if
the Government filed a substantial assistance motion.1
The district court relied on the Presentence Report, prepared using the 2003 edition of the
Guidelines, in determining Kelly’s Guideline sentencing range. Kelly’s base offense level was 34
due to the amount of cocaine base involved in the offense. Because Kelly was over 18 and had two
previous felony drug convictions, he was a career offender under the Guidelines, yielding an adjusted
offense level of 37 and a criminal history category of VI. Kelly received a three-level reduction for
acceptance of responsibility, resulting in a total offense level of 34. Kelly’s ultimate Guideline
sentencing range was 262 to 327 months. The Government moved for a downward departure based
on Kelly’s substantial assistance, and the district court granted that motion and sentenced Kelly to
168 months in prison.
While Kelly was in prison, the Sentencing Commission adopted a retroactive amendment,
effective November 1, 2007, that reduced the base offense levels for unlawful possession of most
crack cocaine quantities. Kelly then moved to reduce his sentence under 18 U.S.C. § 3582(c)(2).
The district court denied Kelly’s motion, finding that “[t]he change to the crack sentencing guideline
does not make [Kelly] eligible for a lower sentence because his original sentencing range was based
on the sentencing guideline for career offenders, rather than the crack sentencing guideline.” Kelly
now appeals.
1
In the plea agreement, the parties agreed to jointly recommend a sentence of 15 years in
prison. Because Kelly provided more assistance than the Government had anticipated, the parties
later agreed to recommend a sentence of 14 years (168 months) in prison.
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No. 08-5666
United States v. Kelly
Kelly is not eligible for a sentence reduction because his applicable sentencing range was
based on the career offender provision of the Guidelines, not the crack provision. A district court
may grant a sentence reduction only if the “defendant . . . has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing
Commission . . . .” 18 U.S.C. § 3582(c)(2). A crack cocaine defendant whose ultimate sentencing
range is based on the career offender provision of the guidelines is not eligible for a reduced sentence
under 18 U.S.C. § 3582(c)(2) because, by its terms, § 3582(c)(2) only applies to defendants whose
ultimate sentencing range is subsequently lowered. United States v. Perdue, 572 F.3d 288, 293 (6th
Cir. 2009). Because Kelly’s sentencing range was based in the end on the career offender provision
of the Guidelines, not the crack cocaine provision, the amendment did not lower Kelly’s sentencing
range and Kelly is not eligible for a sentence reduction. Accordingly, the judgment of the district
court is affirmed.
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