USA v. Artavus Kelly, No. 08-5666 (6th Cir. 2009)
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0700n.06 No. 08-5666 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARTAVUS KELLY, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) FILED Oct 28, 2009 LEONARD GREEN, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE 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. -2- 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. -3-
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