United States v. Jeremy Lockett

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0550n.06
No. 08-4259
FILED
UNITED STATES COURT OF APPEALS Aug 10, 2009
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
JEREMY LOCKETT, )
)
Defendant-Appellant. ) OPINION
)
______________________________ )
Before: CLAY and SUTTON, Circuit Judges; THAPAR,* District Judge.
THAPAR, District Judge. Jeremy Lockett pleaded guilty to one count of conspiracy to
possess with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 846 and 841, and one
count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district
court sentenced Lockett to 151 months in prison on the drug charge and 120 months in prison on the
gun charge, both sentences to be served concurrently. After his sentencing, and while he was in
prison, the Sentencing Commission adopted Amendment 706 to the Sentencing Guidelines, effective
November 1, 2007, which lowered the sentencing ranges that applied to most crack cocaine offenses.
Following this amendment, Lockett filed a motion for a sentence reduction under 18 U.S.C. §
3582(c)(2), which the district court denied. He now appeals on the basis that the district court
*
The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
abused its discretion by denying his motion. He is incorrect.
First, the district court did not sentence Lockett under the crack cocaine guideline, U.S.S.G.
§ 2D1.1. Rather, it sentenced him under U.S.S.G. § 4B1.1, the career offender guideline, due to the
fact that he had previously been convicted of felony assault with intent to do great bodily harm in
1998 and four counts of trafficking in drugs in 2002. Consequently, Amendment 706, which
amended § 2D1.1 but not § 4B1.1, has no effect on the ultimate sentencing range imposed on
Lockett. United States v. Perdue, __ F.3d __, No. 08-4358, 2009 WL 2015242, at *3-4 (6th Cir.
July 14, 2009) (citing United States v. Leasure, No. 07-6125, 2009 WL 1546370, at *7 (6th Cir. June
3, 2009); United States v. Alexander, 543 F.3d 819, 825 (6th Cir. 2008)). Therefore, he is not
entitled to a reduction of his sentence on the basis of Amendment 706. As a result, § 3582(c)(2) does
not authorize a reduction in Lockett’s sentence. See U.S.S.G. § 1B1.10(a)(2)(B) (noting that §
3582(c)(2) does not authorize a sentence reduction if the relevant amendment “does not have the
effect of lowering the defendant’s applicable guideline range”).
Moreover, contrary to Lockett’s assertion, whether guideline provisions limiting a district
court’s discretion to reduce a sentence, such as § 1B1.10, are constitutional under Booker is not at
issue here since under the plain language of § 3582(c)(2) Lockett is ineligible for a sentencing
reduction. Id. at *4 (“Even assuming arguendo that the Sentencing Commission has no authority
to limit the district court’s ability to reduce [the defendant’s] sentence, Congress may certainly cabin
the court’s discretion, and it does so expressly in the text of 18 U.S.C. § 3582(c)(2).”).1
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Lockett also contends that United States v. Ragland, 568 F. Supp. 2d 19, 23-24 (D.D.C.
2008), supports his position that § 1B1.10 cannot limit a sentencing reduction under § 3582 to
two levels. See id. at 23-24 (holding that § 1B1.10 cannot limit a district court’s discretion in re-
sentencing in light of Booker and its progeny). However, Ragland reached the question
regarding the role of Booker in re-sentencing only because the defendant was sentenced based on
2
In the alternative, Lockett asserts that he was not actually sentenced as a career offender since
the district court gave him a five-level reduction pursuant to the government’s § 5K1.1 request. He
argues that, with the § 5K1.1 departure, his sentence is closer to the § 2D1.1 guidelines range for
crack cocaine than the § 4B1.1 guidelines range for career offenders, thereby giving the district court
authority to reduce his sentence. The § 5K1.1 departure, however, did not change the fact that
Lockett was sentenced based on his career offender status—not the amended § 2D1.1 provision. See
United States v. Moore, 541 F.3d 1323, 1329-30 (11th Cir. 2008) (rejecting the argument that
downward departures meant they were not sentenced based on the career offender guidelines ranges).
Further, Lockett cites United States v. Poindexter, 550 F. Supp. 2d 578 (E.D. Penn. 2008), as support
for this argument, even though the sentencing at issue there had material differences. See id. at 580-
81 (holding that a modification was appropriate since the district court did not apply the career
offender provision). The court in Poindexter found that the career offender designation over-
represented the defendant’s total offense level. Id. Thus, the court stated that § 2D1.1 was the basis
for its sentence. Id. at 580 n.4. Like Ragland, Poindexter is inapposite since the district court here
did not find that the career offender designation over-represented Lockett’s total offense level.
Rather, the district court calculated his sentence based on his career offender status, which was
unaffected by Amendment 706.
Finally, Lockett also appears to argue that even if he was sentenced pursuant to § 4B1.1, his
§ 2D1.1. Id. at 20. Thus, the issue related to the applicability of Booker was presented in
Ragland only after the court determined that the defendant was in fact eligible for a sentencing
reduction. Here, Lockett was ineligible for a sentencing reduction. Hence, Ragland has no effect
on our conclusion. In fact, Ragland explicitly distinguished cases like the present one, where a
court found the defendant ineligible for a sentencing reduction under § 3582(c)(2). See id. at 22
n.4.
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sentence was still “based on” § 2D1.1, because the offense level under § 2D1.1 was considered by
the district court and, thus, contributed to his sentence. See § 3582(c)(2) (authorizing a district court
to reduce a sentence where the defendant has been sentenced “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission . . . .”). While he is correct that the court
calculated his offense level under § 2D1.1, it never relied upon that offense level in calculating his
sentence. Instead, the court based his sentence on the offense level under § 4B1.1, which
Amendment 706 did not amend. See United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008)
(“[T]o say that the defendant’s sentence was ‘based on’ the crack cocaine guideline [as opposed to
the career offender guideline] strains credulity. Reaching that result would require us to rewrite
section 3582(c)(2) and, in the bargain, invade Congress’s exclusive preserve.”); Moore, 541 F.3d
at 1327 (finding that, under the plain language of § 3582(c)(2), the amended crack cocaine guideline
played no role in calculating the sentencing range applied to a defendant who was a career offender);
United States v. Thomas, 524 F.3d 889, 889-90 (8th Cir. 2008) (per curiam) (same). Since § 4B1.1
was unmodified, the district court had no authority under § 3582(c)(2) to reduce Lockett’s sentence.
Because the crack cocaine amendments did not affect Lockett's sentencing range, the district
court was correct in denying Lockett's motion for a sentence reduction. We AFFIRM the judgment
of the district court.
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