`Pursuant to Sixth Circuit Rule 206
`File Name: 10a0009p.06
`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`_________________
`
`UNITED STATES OF AMERICA,
` Plaintiff-Appellee,
`
`v.
`
`TORRENCE GILLIS,
`
` Defendant-Appellant.
`
`X---->,---N
`
`Nos. 07-3754; 09-3397
`
`Appeal from the United States District Court
`for the Northern District of Ohio at Cleveland.
`Nos. 06-00290; 06-00290-012—
`Patricia A. Gaughan, District Judge.
`Argued and Submitted: October 15, 2009
`Decided and Filed: November 5, 2009*
`Before: MARTIN, ROGERS, and COOK, Circuit Judges.
`
`_________________
`
`COUNSEL
`ARGUED: Gary W. Crim, LAW OFFICE, Dayton, Ohio, for Appellant. Edward F. Feran,
`ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:
`Gary W. Crim, LAW OFFICE, Dayton, Ohio, Donna M. Grill, OFFICE OF THE FEDERAL
`PUBLIC DEFENDER, Toledo, Ohio, for Appellant. Edward F. Feran, ASSISTANT
`UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
`_________________
`
`OPINION
`_________________
`
`BOYCE F. MARTIN, JR., Circuit Judge. In 07-3754, Torrence Gillis appeals his
`sentence, arguing that his sentence was unreasonable because the judge did not recognize
`that the guidelines were advisory and that he had the power to vary from the sentencing
`
`*This decision was originally issued as an “unpublished decision” filed on November 5, 2009.
`The court has now designated the opinion as one recommended for full-text publication.
`
`1
`
`
`
`Nos. 07-3754; 09-3397
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`United States v. Gillis
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`Page 2
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`guidelines and the policy determinations of the Sentencing Commission. The government
`concedes that the district court erred, and the government has not met its burden of proving
`that the error was harmless. Thus, we REVERSE the district court’s ruling and REMAND
`this case for re-sentencing by the court with full knowledge of its power to disagree with the
`policy determinations of the Sentencing Commission.
`
`In 09-3397, Gillis argues that the district court abused its discretion in denying his
`motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). However, as the district
`court properly denied Gillis’ motion for modification of sentence because his career offender
`status pursuant to U.S.S.G. § 4B1.1 disqualified him from receiving a reduced sentence
`under the Guidelines Amendment 706 for crack cocaine offenses under Guideline 2D1.1, we
`AFFIRM the judgment of the district court.
`
`I.
`
`On June 14, 2006, the grand jury returned a 49-count indictment against Gillis and
`his co-defendants for activities related to the possession and sale of crack cocaine within
`1,000 feet of a public school. Gillis was charged with Count 1, conspiracy to possess with
`intent to distribute crack within 1,000 feet of school property in violation of 21 U.S.C.
`§§ 841(a)(1) and 860(a), and Count 2, possession with intent to distribute 4.12 grams of
`crack within 1,000 feet of school property in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)
`and 860(a). On November 15, 2006, the government filed a Section 851 Information to
`establish prior convictions. On March 19, 2007, the jury acquitted Gillis on Count 1 and
`found him guilty on Count 2.
`
`Gillis’ sentencing took place on May 22, 2007. Had the court sentenced him under
`U.S.S.G. § 2D1.1 based on the amount of crack attributable to him, he would have received
`a base offense level of 26. However, the district court found that, consistent with the U.S.
`Probation Office’s presentence report, Gillis was a career offender under U.S.S.G. § 4B1.1,
`yielding an adjusted offense level of 34 and a criminal history category of VI, which carries
`a Guideline range of 262-327 months. After Gillis’ counsel spoke of Gillis’ upbringing, the
`court sentenced Gillis to 262 months’ imprisonment followed by six years of supervised
`release, stating:
`
`
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`Nos. 07-3754; 09-3397
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`United States v. Gillis
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`Page 3
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`Well, the Court does not believe that a criminal history category six
`overstates the seriousness of his criminal history for all the reasons stated by
`[the prosecutor], that this defendant has 17 points, and criminal history
`category six is 13 points and above. In addition, the Court must note that the
`Sixth Circuit has clearly stated in the case of United States of America v.
`James M. Funk, F-U-N-K, that a district court can not reject the legislator’s
`policy behind career offender status. So whether or not I agree or disagree
`with the career offender provision, the Court must apply it if in fact the
`evidence is such that a defendant has sufficient convictions to be classified
`as a career offender. Therefore, I am not going to depart for both of those
`reasons from the career offender status.
`Gillis timely appealed.
`
`On December 17, 2007, Gillis filed a pro se motion for a sentence reduction under
`18 U.S.C. § 3582(c)(2), based on an amendment to the Sentencing Guidelines which lowered
`the base offense levels for crack cocaine offenses. Gillis was appointed counsel on June 16,
`2008. On March 9, 2009, the Federal Public Defenders’ office filed a second motion for a
`sentence reduction under 18 U.S.C. § 3582(c)(2). Having received the government’s
`response, the district court denied Gillis’ motion on April 6, 2009, concluding that Gillis was
`ineligible for a sentence reduction because of his career offender status. Gillis timely
`appealed (09-3397).
`
`II.
`
`A.
`
`Unreasonable Sentence Under Section 3553(a)
`
`A district court abuses its discretion when it makes an error of law. Koon v. United
`States, 518 U.S. 81, 100 (1996). We have defined an abuse of discretion as “a definite and
`firm conviction that the trial court committed a clear error of judgment. A district court
`abuses its discretion when it relies on clearly erroneous findings of fact, or when it
`improperly applies the law or uses an erroneous legal standard.” United States v. Carter, 463
`F.3d 526, 528 (6th Cir. 2006) (citation and internal quotation marks omitted). An abuse of
`discretion that does not affect substantial rights is harmless error. United States v. Beverly,
`369 F.3d 516, 540 (6th Cir. 2004).
`
`Here, the government concedes in light of Booker and Spears v. United States, —
`U.S. —, 129 S. Ct. 840 (2009), that the career offender Guidelines are not mandatory and
`that district courts have authority to vary below the low end of the career offender Guideline.
`
`
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`Nos. 07-3754; 09-3397
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`United States v. Gillis
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`Page 4
`
`See United States v. Michael, 576 F.3d 323 (6th Cir. 2009). Thus, the government concedes
`that the district court committed error at sentencing in relying upon United States v. Funk,
`477 F.3d 421 (6th Cir. 2007), cert. granted, judgment vacated, 128 S. Ct. 861 (2008), to
`conclude that it could not vary based on a rejection of the policy underlying the career
`offender Guidelines. However, the government argues that Gillis’ substantial rights were
`not affected because the district court would have imposed the same sentence even if it did
`not believe that it was constrained by the Funk holding, so the error was harmless.
`
`Where we accept the government’s concession of error, we “must determine whether
`any error in sentencing was harmless, as opposed to conducting a plain error analysis.”
`United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (citations omitted). Harmless
`error may be established ‘where the government is able to prove that none of the defendant’s
`substantial rights have been affected by the error.” United States v. Oliver, 397 F.3d 369,
`381 (6th Cir. 2005); see also FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity, or
`variance that does not affect substantial rights must be disregarded.”). There can be no
`harmless error unless the appellate court can determine from the record that the same
`sentence would be imposed on remand. United States v. Johnson, 467 F.3d 559 (6th Cir.
`2006). For the government to carry its burden, it must demonstrate “to the Court with
`certainty that the error at sentencing did not cause the defendant to receive a more severe
`sentence.” United States v. Lanesky, 494 F.3d 558, 561 (6th Cir. 2007) (emphasis in
`original).
`
`Here, the government has not met its burden of showing that the district court’s error
`was harmless because we cannot conclude that the district court would have imposed the
`same sentence had it known that the career offender Guidelines were advisory. On one hand,
`the district court did make statements implying that it independently found Gillis to be a
`career offender and the court may have given him the same sentence had the judge not
`believed himself bound by Funk. However, on the other hand, the court sentenced Gillis to
`the lowest sentence available in the sentencing range: 262 months. This makes it less clear
`that the judge would have imposed the same sentence had he not believed himself to be
`bound by Funk and the career offender Guidelines.
`
`
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`Nos. 07-3754; 09-3397
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`United States v. Gillis
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`Page 5
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`We therefore REVERSE the district court’s ruling and REMAND this case for re-
`sentencing by the judge without being constrained by the Funk holding. Having already
`found sufficient facts to find Gillis to be a career offender, the judge must continue his
`Section 3553(a) considerations using the advisory career offender Guideline range as a
`starting point.
`
`B.
`
`Motion for a Reduced Sentence
`
`Section 3582(c)(2) authorizes a district court to reduce a sentence where the
`defendant has been sentenced “based on a sentencing range that has subsequently been
`lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). After Gillis’ sentencing
`and while he was in prison, the Sentencing Commission adopted Amendment 706 to the
`Sentencing Guidelines, effective November 1, 2007, which lowered the sentencing ranges
`that applied to most crack cocaine offenses. Following this amendment, Gillis filed a motion
`for a sentence reduction under Section 3582(c)(2), which the district court denied.
`
`In this case, the district court did not sentence Gillis under the crack cocaine
`guideline, U.S.S.G. § 2D1.1; rather, it sentenced him under U.S.S.G. § 4B1. 1, the career
`offender guideline. Consequently, Amendment 706, which amended § 2D1.1 but not
`§ 4B1.1, has no effect on the ultimate sentencing range imposed on Gillis. United States v.
`Lockett, 2009 WL 2445733, at *1 (6th Cir. 2009) (citing United States v. Perdue, 572 F.3d
`288, 292 (6th Cir. 2009) (citing United States v. Leasure, No. 07-6125, 2009 WL 1546370,
`at *7 (6th Cir. June 3, 2009); United States v. Alexander, 543 F.3d 819, 825 (6th Cir.
`2008))). Therefore, he is not entitled to a reduction of his sentence on the basis of
`Amendment 706. As a result, Section 3582(c)(2) does not authorize a reduction in Gillis’
`sentence. See U.S.S.G. § 1B1.10(a)(2)(B) (noting that Section 3582(c)(2) does not authorize
`a sentence reduction if the relevant amendment “does not have the effect of lowering the
`defendant's applicable guideline range”).
`
`Moreover, contrary to Gillis’ assertion, whether guideline provisions limiting a
`district court’s discretion to reduce a sentence, such as § 1B1. 10, are constitutional under
`Booker is not at issue here since, under the plain language of § 3582(c)(2), Gillis is ineligible
`for a sentencing reduction. Lockett, 2009 WL 2445733, at *1 (“Even assuming arguendo
`that the Sentencing Commission has no authority to limit the district court’s ability to reduce
`
`
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`Nos. 07-3754; 09-3397
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`United States v. Gillis
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`Page 6
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`[the 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).”).
`
`III.
`
`For the foregoing reasons, we REVERSE and REMAND Gillis’ case for
`resentencing. We AFFIRM the judgment of the district court as to Gillis’ motion for a
`reduced sentence.
`
`