435 F. App'x 489
6th Cir.2011Background
- Mills pled guilty in Jan 2000 to distribution of cocaine base under 21 U.S.C. § 841(a)(1).
- In Jun 2000 the district court sentenced Mills to 135 months.
- While on pretrial release Mills was charged with conspiracy to possess over 500 grams of powder cocaine; plea agreement limited sentences but did not specify concurrency.
- April 2003 the district court sentenced Mills to 120 months for crack distribution and 60 months for conspiracy, to run concurrently, then later amended to consecutive; Mills did not appeal.
- Nov 2007 Amendment 706 lowered crack cocaine base level by two, retroactive; Mills moved under § 3582(c)(2) seeking a reduction and argued for concurrent sentences under the amended guidelines; the amended range would be 108–135 months.
- District court denied the motion, concluding §3582(c)(2) does not authorize modifying a sentence to alter whether sentences are consecutive or concurrent; the court noted §1B1.10 leaves unaffected prior §5G1.2 determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §3582(c)(2) authorize changing Mills’s consecutive sentences to concurrent in light of Amendment 706? | Mills argues concurrent sentences reduce total punishment within the amended range. | District court declined, as Amendment 706 addresses only the base guideline, not consecutive/concurrent ordering under §5G1.2. | No; §3582(c)(2) does not authorize such a modification. |
| Is Mills’s requested modification governed by §1B1.10 and thus outside §3582(c)(2)’s scope? | §3582(c)(2) directs consideration of §3553(a) factors to the extent applicable for a reduction. | Because §1B1.10 limits changes to the amended guideline and leaves prior applications like §5G1.2 unaffected, the request is outside §3582(c)(2). | Yes; the requested modification is outside the scope authorized by §3582(c)(2). |
Key Cases Cited
- Dillon v. United States, 570 U.S. (2010) (Sup. Ct. 2010) (restricts 3582(c)(2) scope; must align with policy statements)
- United States v. Washington, 584 F.3d 693 (6th Cir. 2009) (policy statements limit reductions under §3582(c)(2))
- United States v. Harris, 574 F.3d 971 (8th Cir. 2009) (1B1.10 scope; do not modify unrelated provisions)
- Clark v. United States, 110 F.3d 15 (6th Cir. 1997) (pre-Amendment-712 breadth of §3582(c)(2) modifications limited by 1B1.10 (overruled by Amendments))
- Gainous v. United States, 134 F.3d 372 (6th Cir. 1997) (per curiam; pre-Amendment scope of 3582(c)(2) modifications)