                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0250n.06

                                            No. 10-3199                                    FILED
                                                                                       Apr 20, 2011
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )
v.                                                         )   ON APPEAL FROM THE UNITED
                                                           )   STATES DISTRICT COURT FOR
DEON RAY,                                                  )   THE NORTHERN DISTRICT OF
                                                           )   OHIO
       Defendant-Appellant.                                )
                                                           )
                                                           )



       Before: MARTIN, SUHRHEINRICH, and KETHLEDGE, Circuit Judges.


       KETHLEDGE, Circuit Judge. In May 2007, Deon Ray pled guilty to distributing or

possessing with intent to distribute cocaine and crack cocaine, unlawfully transporting firearms, and

being a felon in possession of a firearm. See 18 U.S.C. § 841(a)(1), (b)(1)(C); 18 U.S.C. § 922(g)(1).

The district court sentenced Ray under U.S. Sentencing Guidelines § 2D1.1. The court applied a

two-level upward departure for firearm possession, a three-level downward departure for acceptance

of responsibility, and a two-level downward departure for substantial assistance. This yielded a

recommended guidelines range of 92 to 115 months. The court sentenced Ray to 115 months’

imprisonment.

       The Sentencing Commission thereafter retroactively amended § 2D1.1, reducing the base

offense levels for crack-cocaine offenses. Ray moved to reduce his sentence under 18 U.S.C.
No. 10-3199
United States v. Ray

§ 3582(c)(2), which provides that district court judges “may reduce the term of imprisonment” for

defendants who were sentenced “based on a sentencing range that has subsequently been lowered

by the Sentencing Commission . . . if such a reduction is consistent with applicable policy

statements.” The government responded by arguing—despite clear evidence to the contrary—that

Ray had been sentenced as a career offender under U.S.S.G. § 4B1.1 and was thus ineligible for

sentence modification. See United States v. Perdue, 572 F.3d 288, 292-93 (6th Cir. 2009). The

district court issued a form order denying Ray’s § 3582 motion with almost no explanation.

       On appeal, Ray’s appointed counsel inexplicably concedes that Ray was sentenced as a career

offender. He argues that Ray nonetheless qualifies for a sentence reduction because United States

v. Booker, 543 U.S. 220 (2005), rendered all the sentencing guidelines advisory. Not only does this

argument fail under Perdue and Dillon v. United States, 130 S. Ct. 2683 (2010), but it is contradicted

by the record: the district court, the government, and defense counsel all agreed at the sentencing

hearing that Ray did not qualify as a career offender.

       District courts have discretion to grant or deny § 3582 motions after conducting a two-step

inquiry. First, the court must determine the defendant’s eligibility for a sentence reduction and the

extent of the reduction authorized by U.S.S.G. § 1B1.10. Dillon, 130 S. Ct. at 2691. Second, if the

defendant is eligible, the court must consider the factors listed in 18 U.S.C. § 3553(a) and determine

whether a reduction “is warranted in whole or in part under the particular circumstances of the case.”

See id. at 2692. We conduct de novo review if the district court finds the defendant ineligible under

step one of the inquiry. See United States v. Payton, 617 F.3d 911, 913 (6th Cir. 2010). Otherwise,

we review the district court’s denial of a § 3582 motion for an abuse of discretion. See id. at 912.

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No. 10-3199
United States v. Ray

       Here, we have no information on the district court’s reasons for denying Ray’s motion. In

its form order, the court merely checked the “denied” box, filled in Ray’s original sentencing

information, and stated that the “order is subject to [the] prohibition contained in USSG Sec.

1B1.10(b)(2)(C)”—a provision that does not seem relevant here. It is thus unclear whether the

district court found Ray ineligible for a reduction or whether it denied the motion as an exercise of

discretion after considering § 3553(a) factors. We therefore reverse the district court’s order and

remand for reconsideration and clarification.




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