USA v. Carl Drewery

Filing

Per Curiam OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 28(g). Alice M. Batchelder, Chief Circuit Judge; Richard F. Suhrheinrich, Circuit Judge and Richard Allen Griffin, Circuit Judge.

Case: 10-3028 Document: 006110921889 Filed: 04/08/2011 Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0217n.06
FILED

No. 10-3028

Apr 08, 2011

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

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Plaintiff-Appellee,
v.
CARL DREWERY,
Defendant-Appellant.

LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO

BEFORE: BATCHELDER, Chief Circuit Judge; SUHRHEINRICH and GRIFFIN, Circuit Judges.
PER CURIAM.
Carl Drewery appeals the district court’s denial of his motion for a sentence reduction under
18 U.S.C. § 3582(c)(2). We affirm.
I.
Drewery was charged with conspiracy to possess with intent to distribute cocaine base in
violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A) (Count 1); distribution of cocaine base in
violation of id. § 841(a)(1) and (b)(1)(B) (Count 60); and distribution of cocaine base in violation
of id. § 841(a)(1) and (b)(1)(A) (Count 61). He pled guilty to Count 1 and was sentenced to 110
months’ imprisonment followed by three years of supervised release. Thereafter, Drewery filed a
motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on the amendments to the
Sentencing Guidelines, which lowered the base offense levels for crack cocaine offenses. The

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No. 10-3028
USA v. Carl Drewery
district court denied Drewery’s motion, concluding that he was ineligible for a sentence reduction
because he was sentenced as a career offender. Drewery timely appeals.
II.
We have jurisdiction under 18 U.S.C. § 3742(a)(1) because Drewery alleges that his sentence
was imposed in violation of law. United States v. Bowers, 615 F.3d 715, 722 (6th Cir. 2010).
Where, as here, the district court did not exercise its discretion in denying the motion but
“conclude[d] that it lack[ed] the authority to reduce [the] defendant’s sentence under the statute, the
district court’s determination . . . is a question of law that is reviewed de novo.” United States v.
Curry, 606 F.3d 323, 327 (6th Cir. 2010) (citation omitted).
III.
Section 3582(c)(2) provides that “in the case of a defendant who has been sentenced to a term
of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing
Commission . . . the court may reduce the term of imprisonment . . . if such a reduction is consistent
with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
The crack cocaine amendments reduced the § 2D1.1 base offense levels for crack by two and were
made retroactive. See U.S.S.G. § 2D1.1; U.S.S.G., Amends. 706, 711, and 715. Drewery filed a
motion for a reduction under 18 U.S.C. § 3582(c)(2) based on the crack cocaine amendments, but
the district court denied the motion. It concluded that the amendments did not lower Drewery’s
applicable sentencing range, and thus he was ineligible for a sentence reduction pursuant to §

-2-

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No. 10-3028
USA v. Carl Drewery
3582(c)(2) because, as a career offender, his applicable range was determined under U.S.S.G. §
4B1.1, not under § 2Dl.1.
Drewery does not challenge his career offender designation, but he argues that after “the
three-level reduction under § 3E1.1 and the six-level reduction under § 5Kl.l[,]” he was “not
sentenced within the § 4B1.1 guideline [range].” Drewery also asserts that the district court erred
because “post-[United States v. Booker, 543 U.S. 220 (2005)], all guideline provisions are
discretionary and no longer mandatory . . . .” The problem, as Drewery admits, is that these
arguments are squarely foreclosed by precedent. See United States v. Payton, 617 F.3d 911, 914 (6th
Cir. 2010) (finding that offense-level reductions do not render a defendant sentenced as career
offender eligible for reduction under § 3582(c)(2)); United States v. Perdue, 572 F.3d 288, 292 (6th
Cir. 2009) (rejecting Booker-based argument because, “[e]ven assuming . . . that the Sentencing
Commission has no authority to limit the district court’s ability to reduce [a 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
The district court therefore correctly determined that Drewery was ineligible for a sentence
reduction.
AFFIRMED.

1

The latter argument is also precluded by Dillon v. United States, — U.S. — , 130 S. Ct. 2683
(2010), which makes clear that the remedial aspect of Booker does not apply to proceedings under
18 U.S.C. § 3582(c)(2). Id. at 2693.
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