United States v. John Otis Burnside , 315 F. App'x 223 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14081 ELEVENTH CIRCUIT
FEBRUARY 18, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 89-00170-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN OTIS BURNSIDE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 18, 2009)
Before BLACK, CARNES, and BARKETT, Circuit Judges.
PER CURIAM:
John Otis Burnside, a federal prisoner proceeding pro se, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his 420-month
sentence. Burnside contends that he is entitled to a sentencing reduction based on
Amendment 506 to the Sentencing Guidelines, which addressed the definition of
“Offense Statutory Maximum” as used in § 4B1.1. He also contends that the
district court lacked subject matter jurisdiction in the sentencing proceeding
because he involuntarily waived his right to counsel in violation of the Sixth
Amendment. We affirm.
We review de novo a district court’s conclusions about the scope of its legal
authority under 18 U.S.C. § 3582(c)(2). United States v. Moore, 541 F.3d 1323,
1326 (11th Cir. 2008) (citing United States v. White, 305 F.3d 1264, 1267 (11th
Cir. 2002)).1 We may affirm on any ground supported by the record. United
States v. Mejia, 82 F.3d 1032, 1035 (11th Cir. 1996).
Burnside first contends that he is entitled to a sentence reduction under
Amendment 506 to the Sentencing Guidelines. The district court’s order denying
Burnside’s motion for a reduced sentence does not refer to Amendment 506.
Instead, it appears to have considered only the effect of Amendment 706.
Amendment 706 does not lower Burnside’s sentence because his convictions
1
Once it is established that 18 U.S.C. § 3582 applies, a district court’s decision to grant or
deny a sentence reduction is reviewed only for abuse of discretion. United States v. Vautier, 144
F.3d 756, 759 n.3 (11th Cir. 1998).
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involve powder cocaine and Amendment 706 applies only to crack cocaine
convictions. See U.S.S.G. app. C, Amend. 706 (2007); United States v. James,
548 F.3d 983, 984–85 (11th Cir. 2008). Still, even assuming that the district court
did not consider Burnside’s argument regarding Amendment 506, we can affirm
on any grounds supported by the record. Mejia, 82 F.3d at 1035.
Here we affirm because Amendment 506 does not operate to lower
Burnside’s sentence. Burnside contends that his guideline range was improperly
enhanced under § 4B1.1 of the sentencing guidelines because his “Offense
Statutory Maximum” was increased based on his prior criminal history in violation
of Amendment 506. See U.S.S.G. app. C, Amend. 506.2 He is wrong. For one
thing, Amendment 506 was effectively superceded by Amendment 567; the
sentencing guidelines now define “Offense Statutory Maximum” as used in §
4B1.1 as including “any increase in [the statutory] maximum term under a
2
Amendment 506, effective November 1, 1994, changed the definition of “Offense
Statutory Maximum” for the purposes of § 4B1.1 to:
[T]he maximum term of imprisonment authorized for the offense of conviction
that is a crime of violence or controlled substance offense, not including any
increase in that maximum term under a sentencing enhancement provision that
applies because of the defendant's prior criminal record . . . . For example, where
the statutory maximum term of imprisonment under 21 U.S.C. § 841(b)(1)(C) is
increased from twenty years to thirty years because the defendant has one or more
qualifying prior drug convictions, the ‘Offense Statutory Maximum’ for the
purposes of this guideline is twenty years and not thirty years.
U.S.S.G. app. C, Amend. 506.
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sentencing enhancement provision that applies because of the defendant’s prior
criminal record.” Id. § 4B1.1 cmt. n.2; see also id. app. C, Amend 567. More
fundamentally, Burnside was convicted of, among other things, conspiracy to
possess with intent to distribute at least five kilograms of cocaine, which has a
statutory maximum penalty of life imprisonment. See 21 U.S.C. §§ 846,
841(b)(1)(A). Therefore, Burnside’s base offense level was increased to 37
pursuant § 4B1.1 regardless of his past criminal history. See U.S.S.G. § 4B1.1(b).
It follows that the district court used the proper base offense level in calculating
Burnside’s sentence.
Burnside’s Sixth Amendment claim also fails. We do not have jurisdiction
under § 3582(c)(2) to correct an extraneous resentencing issue. See United States
v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000).
AFFIRMED.
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