United States v. Berry ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-6018
v. (W .D. Oklahoma)
V IN CEN T B ER RY , (D.C. No. CR-95-99-003-L)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34( A )(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Vincent Berry, a federal prisoner proceeding pro se, appeals the district
court’s denial of his M otion for Reduction of Sentence, pursuant to 18 U.S.C. §
3582(c)(2), which permits the district court to modify a term of imprisonment if a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
may be cited under the terms and conditions of 10th Cir. R. 36.3.
defendant “has been sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered.” M r. Berry also seeks to proceed in
forma pauperis. M r. Berry argues that the district court failed to modify his
sentence by (1) re-grouping his robbery convictions and then (2) removing a
weapons enhancement that was applied to one of the convictions, pursuant to a
change in the Sentencing Guidelines that occurred after he had been sentenced.
Because we hold that the subsequent amendments to the Sentencing Guidelines
would have had no effect on M r. Berry’s sentence, had they been in place when
he was originally sentenced, we affirm the district court.
I. BACKGROUND
In 1995, a jury convicted M r. Berry of five crimes related to two robberies
and one attempted robbery of federally insured banks: Count one, conspiracy to
comm it bank robbery, in violation of 18 U.S.C. § 371; Counts two and three,
robbery of two different federally insured banks, in violation of 18 U.S.C. §§ 2,
2113(a) & (d); Count four, attempted robbery of a federally insured bank, also in
violation of 18 U.S.C. § 2113(a); and Count seven, possession of a firearm
during a crime of violence (the attempted bank robbery from Count four), in
violation of 18 U.S.C. § 924(c)(1).
The district court sentenced M r. Berry to a total of 192 months’
imprisonment: 60 months on Count one, and 132 months on Counts two through
four, to run concurrently, and 60 months on Count seven, to run consecutively to
2
the other sentences. W e affirmed his conviction in 1997. United States v. Green,
115 F.3d 1479 (10th Cir. 1997).
In October 2005, M r. Berry filed a M otion for Reduction of Sentence
pursuant to 18 U.S.C. § 3582(c)(2) based on an amendment to the Sentencing
Guidelines that had been made retroactive. The district court denied the M otion
for Reduction of Sentence, holding that application of the retroactive amendment
would “not require a modification of defendant’s sentence.” Rec. vol. III, doc.
223, at 4-5 (Dist. Ct. Order, dated Dec. 15, 2005). On appeal, M r. Berry
challenges the district court’s denial of his motion, and maintains that his
sentence does not comport with the retroactive amendment.
II. D ISC USSIO N
W e review a district court’s interpretation of the Sentencing Guidelines de
novo. United States v. Torres-Aquino, 334 F.3d 939, 940 (10th Cir. 2003); see
also United States v. Woe, 398 F.3d 1245, 1257 (10th Cir. 2005). Because M r.
Berry is proceeding pro se, we construe his filings liberally. Haines v. Kerner,
404 U.S. 519, 520-21 (1972).
Effective November 1, 2000, the United States Sentencing Commission
enacted Amendment 599, U.S.S.G. App. C, Amend. 599 (2000) (amending
U.S.S.G. § 2K2.4), w hich was given retroactive effect under U .S.S.G. §
1B1.10(c). U.S.S.G. § 2K2.4, before amendment, instructed that when a
defendant is convicted under 18 U.S.C. § 924(c), as M r. Berry was in Count
3
seven, “the term of imprisonment is that required by statute.” Amendment 599
clarified that if a sentence for violating 18 U.S.C. § 924(c) “is imposed in
conjunction with a sentence for an underlying offense,” then the “specific offense
characteristic for possession, brandishing, use, or discharge” of the firearm
charged in 924(c) should not be calculated into the sentence for the underlying
offense. U.S.S.G. App. C, vol. II, Amend. 599 (2000). The purpose of
Amendment 599 was to avoid “the duplicative punishment” that results when
sentences are increased under both the statutes and the guidelines for substantially
the same harm. Id.M r. Berry contends that his sentence should be recalculated pursuant to
Amendment 599 because the district court imposed a 60-month sentence for
violating 18 U.S.C. § 924(c) by using or carrying a weapon during a crime of
violence, and also imposed a weapons enhancement for the offense underlying the
924(c) conviction, thereby resulting in a duplicative sentence. He argues that the
district court improperly grouped Counts two through four (the robbery
convictions) together for sentencing purposes. Because of this improper
grouping, it is impossible to determine whether the weapons enhancement he
received corresponded to the crime of violence that underlies the 924(c)
conviction (Count four), or some other conviction (Counts two or three).
The government responds that the sentence imposed for the offense
underlying the 18 U.S.C. § 924(c) charge (attempted robbery, charged in Count
4
four) was not increased by the application of a weapons enhancement, and
therefore Amendment 599 has no impact on M r. Berry’s sentence. It explains that
M r. Berry is simply mistaken about the grouping of Counts two through four,
contending that the PSR shows none of the counts was grouped. See U.S.S.G. §
3D1.2(d) (1994) (specifically prohibiting the grouping of robbery offenses).
W e have independently reviewed the PSR and agree with the government
and the district court that retroactive application of Amendment 599 would not
have altered M r. Berry’s sentence. First, the PSR shows that the district court
properly grouped Counts two through four for sentencing purposes. See Supp.
Rec. vol. I, at 6-7 (Pre-Sentence Report, dated Jan. 12, 1996); Sentencing Tr., at
18, dated Jan. 23, 1995. It followed U.S.S.G. § 3D1.2(d)(1994) and grouped each
robbery count separately. Additionally, we note that M r. Berry’s counsel made
no objections to the PSR ’s method of calculating the sentences for Counts two
through four at sentencing. Sentencing Tr. at 18.
W e also agree with the government that Amendment 599 has no impact on
M r. Berry’s sentence because the district court did not apply a weapons
enhancem ent on the group of convictions which contained Count four, the offense
underlying the 924(c) conviction. The PSR indicates that the district court did
impose a six-level upward adjustment on the offense level for the groups
containing Counts two and three, but because those Counts were not the offenses
underlying the 924(c) conviction, application of Amendment 599 would not have
5
affected the enhancement. See U.S.S.G. § 2K2.4, n.2 (2001) (explaining that “if a
defendant is convicted of two armed bank robberies, but is convicted under 18
U.S.C. § 924(c) in connection with only one of the robberies, a weapon
enhancement would apply to the bank robbery which was not the basis for the 18
U.S.C. § 924(c) conviction”).
III. C ON CLU SIO N
W e AFFIRM the district court’s denial of M r. Berry’s M otion for
Reduction of Sentence, pursuant to 18 U.S.C. § 3582(c)(2). W e grant M r. Berry’s
motion to proceed in form a pauperis in this appeal.
Entered for the Court
Robert H. Henry
Circuit Judge
6