UNITED STATES of America, Plaintiff-Appellee, v. Jose A. LORA, Defendant-Appellant, 607 F. App'x 535

ORDER Jose A. Lora, a federal prisoner proceeding pro se, appeals the district court’s order denying his motion for a sentence reduction filed under 18 U.S.C. § 3582(c)(2). This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

In 1998, a jury convicted Lora of conspiring to distribute' and possessing with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(ii), and 846; unlawfully using a communications facility in committing a felony in violation of 21 U.S.C. § 843(B); and possessing with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B). After grouping the counts pursuant to USSG § 3D1.2(b), the district court determined that Lora had a base offense level of 36 under USSG § 201.1(c)(2) and a criminal history category of I.

After increasing the base-offense level by two under USSG § 3Bl.l(

c) for Lora’s role in the drug conspiracy, Lora’s offense level was adjusted to a total offense level of 38. With a total offense level of 38 and- a criminal history category of I, Lora’s guideline range was 235 to 293 months in prison. The district court sentenced Lora to a total of 288 months’ imprisonment. The district court’s judgment was affirmed on appeal, United States v. Lora, No. 98-4354, 2000 WL 353742 (6th Cir. Mar. 29, 2000), and Lora’s attempts at post-conviction relief were unsuccessful.

In this § 3582(c)(2) motion, Lora argues that he js eligible for a reduction in his sentence based on Amendment 591 to the United States Sentencing Guidelines. We review for an abuse of discretion a district court’s order denying a § 3582(c)(2) sentence reduction. United States v. Thompson, 714 F.3d 946, 949 (6th Cir.2013). “[A] defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the [United States] Sentencing Commission” may seek a sentence reduction. 18 U.S.C. § 3582(c)(2).

However, a sentence reduction “is not authorized under” § 3582(c)(2) where an amendment to the sentencing guidelines “does not have the effect of lowering the defendant’s applicable guideline range.” USSG § lB1.10(a)(2)(B). Amendment 591 modified USSG §§ lBl.l(a). lB1.2(a), and 2D1.2, and provided that the enhanced penalties of USSG § 2D1.2 do not apply where, although the defendant engaged in conduct described in § 2D1.2, the defendant was not in fact convicted of an offense referenced by § 2D1.2. See USSG App. C, p. 32 (Supp. 2000).

The amendment also clarified that •a sentencing court should apply the guideline listed in the Statutory Index, USSG Appendix A, as appropriate for the offense of conviction, not a guideline which might be applicable to other relevant conduct that was not the subject of the offense of conviction. Amendment 591 was given retroactive effect under § 1B1.10. The district court correctly denied Lora’s motion because Amendment 591 does not lower his guideline range.

The presentence report demonstrates that the district court sentenced Lora under § 2D1.1, just as the district court would have been required to do if Amendment 591 already had been in place. See USSG App. A (specifying § 2D1.1 as the offense guideline for violations of §§ 841(a), (b)(1), and 846). Accordingly, we affirm the district court’s order.