United States v. Bell ( 2016 )


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  •                                                                                  FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                         Tenth Circuit
    FOR THE TENTH CIRCUIT                         March 25, 2016
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                           No. 15-5118
    (D.C. No. 4:10-CR-00129-GKF-1)
    DEMONE RASHEE BELL, a/k/a “D,”                               (N.D. Okla.)
    Defendant - Appellant.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before KELLY, McKAY, and MORITZ, Circuit Judges.
    _________________________________
    Appearing pro se, Demone Rashee Bell appeals the district court’s denial of
    his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2).1 Because Bell is
    ineligible for a sentence reduction, we affirm.
    Bell was convicted in 2010 of various counts arising out of a conspiracy to
    manufacture and distribute methamphetamine. A jury found the conspiracy involved
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral
    estoppel. It may be cited, however, for its persuasive value. See Fed. R. App. P. 32.1;
    10th Cir. R. 32.1.
    1
    Because Bell appears pro se, we liberally construe his filings. Gallagher v.
    Shelton, 
    587 F.3d 1063
    , 1067 (10th Cir. 2009). But it’s not our role to act as his
    advocate. 
    Id. 2.4 kg
    of methamphetamine, which resulted in a base offense level of 34. After
    applying several enhancements, the district court concluded Bell had a total offense
    level of 42 and a criminal history category VI, producing a Guidelines range of 360
    months to life in prison. But the court granted in part Bell’s motion for a downward
    variance to a non-Guidelines sentence, varying downward seven levels to a total
    offense level of 35 and a Guidelines range of 292 to 365 months. The court sentenced
    Bell to 300 months in prison.
    The Sentencing Commission subsequently issued Amendment 782, which
    lowered by two levels most of the base offense levels provided in the Guidelines’
    Drug Quantity Table. See U.S.S.G. app. C, amend. 782. Citing Amendment 782, Bell
    filed a motion for a sentence reduction under § 3582(c)(2), which authorizes a district
    court to reduce a defendant’s sentence if it was “based on a sentencing range that has
    subsequently been lowered by the Sentencing Commission.” Bell argued he was
    eligible for a reduced sentence because “Amendment 782 reduced the Guidelines’
    range applicable in this case.” R. at 58.
    The district court disagreed. It explained that although Amendment 782
    lowered Bell’s total offense level from 42 to 40, the resulting Guidelines range
    remained 360 months to life. Noting that it was “not permitted to impose a sentence
    that is less than the range produced by the retroactive amendment,” the district court
    concluded Bell was ineligible for a sentence reduction because his original 300-
    month sentence is below the minimum of the applicable post-Amendment Guidelines
    range. 
    Id. at 64
    (citing U.S.S.G. § 1B1.10(b)(2)(A)).
    2
    Bell appeals,2 insisting Amendment 782 reduced his applicable Guidelines
    range. He explains that because his total offense level is now 40, “leaving all other
    application decisions made at [the time of his sentencing] intact, specifically,
    removing seven levels of offense characteristics as a downward variance – he would
    have received a sentence of 235 months (Level 33, Category VI).” Aplt. Br. 5.
    But Bell is mistaken that applying the seven-level variance he received at
    sentencing would reduce the applicable Guidelines range. For purposes of a motion
    under § 3582(c)(2), the applicable Guidelines range is the “range that corresponds to
    the offense level and criminal history category determined pursuant to 1B1.1(a),
    which is determined before consideration of . . . any variance.” U.S.S.G. § 1B1.10
    cmt. n.1(A) (emphasis added); see also United States v. Corber, 
    596 F.3d 763
    , 768
    (10th Cir. 2010) (explaining that “the ‘applicable guideline range’ and the range upon
    which a sentence is ‘based’ is, as a matter of law, the range produced under the
    guidelines’ sentencing table after a correct determination of the defendant’s total
    offense level and criminal history category but prior to any discretionary variances”
    (emphasis added)).
    Based on the district court’s original pre-variance determination of Bell’s total
    offense level (i.e., 42) and his criminal history category (i.e., VI), Bell’s applicable
    Guidelines range at sentencing was 360 months to life. Supp. R., vol. II, at 29l; see
    2
    Bell filed his notice of appeal more than fourteen days after the district court
    denied his motion. Because the government doesn’t challenge his appeal as untimely,
    we exercise our discretion to hear the appeal. See United States v. Garduno, 
    506 F.3d 1287
    , 1291 (10th Cir. 2007) (explaining timeliness under Fed. R. App. P. 4(b)(1)(A)
    “may be forfeited if not properly raised by the government”).
    3
    U.S.S.G. ch. 5, pt. A. Bell is correct that Amendment 782 reduces his total offense
    level from 42 to 40. See U.S.S.G. § 2D1.1(c)(4). But when that new offense level is
    coupled with Bell’s criminal history category of VI, his applicable Guidelines range
    for purposes of § 3582(c)(2) remains 360 months to life. See U.S.S.G. ch. 5, pt. A;
    
    Corber, 596 F.3d at 768
    (explaining applicable Guidelines range is range calculated
    before variance). This is fatal to Bell’s motion, because a court isn’t authorized to
    reduce a defendant’s sentence under § 3582(c)(2) if the applicable amendment “does
    not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G.
    § 1B1.10(a)(2)(B).3
    Accordingly, we affirm the district court’s denial of Bell’s § 3582(c)(2)
    motion. We also deny Bell’s motion to proceed in forma pauperis.
    Entered for the Court
    Nancy L. Moritz
    Circuit Judge
    3
    Moreover, Bell’s original 300-month sentence is below the minimum of the
    applicable Guidelines range produced by Amendment 782. The district court
    therefore correctly concluded it was prohibited from reducing his sentence any
    further. See U.S.S.G. § 1B1.10(b)(2)(A) (providing that, absent a narrow exception
    not applicable here, a court “shall not reduce the defendant’s term of imprisonment
    under” § 3582(c)(2) “to a term that is less than the minimum of the amended
    guideline range”).
    4
    

Document Info

Docket Number: 15-5118

Judges: Kelly, McKAY, Moritz

Filed Date: 3/25/2016

Precedential Status: Non-Precedential

Modified Date: 10/19/2024