United States v. Jerome Raybon ( 2010 )


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  •                               NOT RECOMMENDED FOR PUBLICATION
                                          File Name: 10a0406n.06
                                                                                                             FILED
                                                                                                          Jul 12, 2010
                                                       No. 09-1716
                                                                                                  LEONARD GREEN, Clerk
                                     UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
    
    
    UNITED STATES OF AMERICA,              )
                                           )
          Plaintiff–Appellee,              )
                                           )                      ON APPEAL FROM THE UNITED
    v.                                     )                      STATES DISTRICT COURT FOR THE
                                           )                      EASTERN DISTRICT OF MICHIGAN
    JEROME RAYBON,                         )
                                           )
          Defendant–Appellant.             )                      OPINION
                                           )
    ______________________________________ )
    
             Before: GILMAN and COOK, Circuit Judges; and OLIVER, District Judge.*
    
             PER CURIAM. Jerome Raybon appeals the district court’s order denying his motion for
    
    a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), which permits modification of a term of
    
    imprisonment that was “based on a sentencing range that has subsequently been lowered by the
    
    Sentencing Commission.” Raybon relies upon Amendment 706 to the United States Sentencing
    
    Guidelines (U.S.S.G.). Amendment 706, together with Amendments 711 and 713, retroactively
    
    reduces by two points the base offense levels applicable to most crack-cocaine offenses. The court
    
    denied the motion, concluding that Raybon was ineligible for a sentence reduction because he was
    
    sentenced under the career-offender guideline rather than under the crack-cocaine guideline. For the
    
    reasons set forth below, we AFFIRM the judgment of the district court.
    
    
    
    
             *
              The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by
    designation.
    No. 09-1716
    United States v. Raybon
    
                                           I. BACKGROUND
    
           Raybon pled guilty to the distribution of 50 grams or more of crack cocaine, in violation of
    
    21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). At sentencing, the district court determined that he
    
    was accountable for 158.88 grams of crack cocaine, resulting in a base offense level of 34 under the
    
    November 2003 version of U.S.S.G. § 2D1.1(c)(3). Raybon then received a three-level reduction
    
    for acceptance of responsibility, which reduced his total offense level to 31. His criminal history
    
    category was V. Because of a prior drug conviction, Raybon faced a mandatory minimum term of
    
    imprisonment of 20 years, pursuant to 21 U.S.C. § 841(b)(1)(A).
    
           Next, the district court concluded that Raybon was a career offender as defined by U.S.S.G.
    
    § 4B1.1(a). The court accordingly calculated his sentencing range using the career-offender
    
    guideline. His base offense level then became 37 and, with the three-level reduction for acceptance
    
    of responsibility, his total offense level was 34. In addition, his criminal history category was
    
    automatically set at VI. Raybon’s corresponding Guidelines range was thus 262 to 327 months of
    
    imprisonment. See U.S.S.G. ch. 5, pt. A. The court sentenced him within this range to 294 months
    
    of imprisonment.
    
                                              II. ANALYSIS
    
           On appeal, Raybon argues that the district court erred in concluding that he was ineligible
    
    for a sentence reduction under 18 U.S.C. § 3582(c)(2). He reasons that Amendment 706 had the
    
    effect of lowering his applicable Guidelines range from 262 to 327 months down to 210 to 262
    
    months. Raybon’s argument, however, has been foreclosed by United States v. Perdue, 
    572 F.3d 288
    
    (6th Cir. 2009), where this court explained that “[a] district court may modify a defendant’s sentence
    
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    No. 09-1716
    United States v. Raybon
    
    only as provided by statute.” Id. at 290. The statute upon which Raybon relies, 18 U.S.C.
    
    § 3582(c)(2), limits modification to sentences “based on a sentencing range that has subsequently
    
    been lowered by the Sentencing Commission.”
    
           Like the defendant in Perdue, Raybon is not entitled to a sentence reduction because he was
    
    sentenced based on a Guidelines range that remains unchanged. See Perdue, 572 F.3d at 292-93.
    
    His sentence was in fact based on the career-offender guideline, U.S.S.G. § 4B1.1, which was not
    
    affected by Amendment 706. See id. at 293. The fact that the district court reduced his offense level
    
    for acceptance of responsibility does not change this result. In Perdue, the defendant received both
    
    a three-level reduction for acceptance of responsibility and a five-level downward departure for
    
    substantial assistance to the government, yet nevertheless was ineligible for a reduction under
    
    Amendment 706 because his offense level was still “based on” the career-offender guideline. Id. at
    
    290, 292-93. Perdue is therefore directly on point and forecloses Raybon’s argument. Raybon
    
    concedes as much in his brief, stating that he is aware of Perdue, “but wishes to preserve this issue
    
    in the event that relief is afforded to him by statute or otherwise in the future.”
    
           In addition, Raybon contends that “[al]though his relief might normally be limited by the
    
    floor established by the mandatory minimum, this floor was waived by the Court’s sentence below
    
    the mandatory minimum pursuant to the government’s motion for substantial assistance.” But this
    
    argument is not supported by the record, there being no evidence that the government moved for a
    
    reduction in Raybon’s sentence due to any purported substantial assistance. And his sentence of 294
    
    months of imprisonment is in fact above the statutory mandatory minimum of 240 months of
    
    imprisonment. In any event, this argument is also foreclosed by Perdue. See United States v.
    
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    No. 09-1716
    United States v. Raybon
    
    Provitt, 355 F. App’x 22, 23 (6th Cir. 2009) (citing Perdue and noting that a defendant’s offense-
    
    level reductions “did not render [his] career-offender designation inapplicable”).
    
                                          III. CONCLUSION
    
           For all of the reasons set forth above, we AFFIRM the judgment of the district court.
    
    
    
    
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Document Info

DocketNumber: 09-1716

Filed Date: 7/12/2010

Precedential Status: Non-Precedential

Modified Date: 12/21/2014