United States v. Keron McCovery , 310 F. App'x 323 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11984 ELEVENTH CIRCUIT
FEBRUARY 5, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 99-00073-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KERON MCCOVERY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(February 5, 2009)
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Keron McCovery, a federal prisoner convicted of a crack cocaine offense,
appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a
sentence reduction based on an amendment to the Sentencing Guidelines that
lowered the base offense levels applicable to crack cocaine. The district court
denied McCovery’s § 3582(c)(2) motion because it found that the crack cocaine
amendments did not lower McCovery’s sentence range based on the calculations
contained in the written judgment entered subsequent to the imposition of sentence
at the sentencing hearing. The issue on appeal is whether the district court abused
its discretion in denying McCovery’s § 3582(c)(2) motion by recalculating his
amended Guidelines sentence range using the calculations from the written
judgment rather than the calculations stated during the sentencing hearing.
“We review a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343
(11th Cir. 2003).
Generally, a “court may not modify a term of imprisonment once it has been
imposed.” 18 U.S.C. § 3582(c). However, where a defendant has been sentenced
pursuant to a sentencing range
that has subsequently been lowered by the Sentencing
Commission . . . the court may reduce the term of imprisonment, after
considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent
that they are applicable, if such a reduction is consistent with
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applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). The Sentencing Commission’s policy statements for
reducing a term of imprisonment under 18 U.S.C. § 3582(c)(2) are located in
U.S.C.G. § 1B1.10. The policy statements indicate that a sentence reduction is not
authorized under § 3582(c)(2) if a retroactive amendment “does not have the effect
of lowering the defendant’s applicable guideline range.” U.S.C.G.
§ 1B1.10(a)(2)(B) (2008).
A district court must engage in a two-part analysis when determining
whether to reduce a defendant’s sentence pursuant to 18 U.S.C. § 3582(c)(2).
United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). The court must: (1)
recalculate the sentence under the amended guidelines, and (2) decide, in its
discretion, whether it will choose to impose a new sentence or retain the original
sentence in light of the 18 U.S.C. § 3553(a) factors. Id. at 780-81. When the court
recalculates a sentence, it first determines “a new base [offense] level by
substituting the amended guideline range for the originally applied guideline range,
and then using that new base [offense] level to determine what ultimate sentence it
would have imposed.” Id. at 780.
“Where there is a discrepancy between the orally imposed sentence and the
written order of judgment and committal, the oral sentence controls.” United
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States v. Khoury, 901 F.2d 975, 977 (11th Cir. 1990). “If the oral sentence is
ambiguous, then, in an attempt to discern the intent of the district court at the time
it imposed sentence, the reviewing court may consider extrinsic evidence,
including the commitment order.” Id.In this case, there is an alleged discrepancy between the sentence handed
down orally at the sentencing hearing and the written judgment in terms of
McCovery’s criminal history category and base offense level. We hold that the
district court abused its discretion in denying McCovery’s § 3582(c)(2) motion
because the court used the incorrect “originally applied guideline range” to
determine McCovery’s amended guideline range. See Bravo, 203 F.3d at 780.
After reviewing the sentencing transcript, we conclude that the court’s oral
sentence unambiguously changed McCovery’s criminal history category to a I, but
left McCovery’s base offense level at 38. See Khoury, 901 F.2d at 977.
Accordingly, we vacate the district court’s order and remand for a recalculation of
the amended sentence range consistent with this opinion. See Bravo, 203 F.3d at
780-81.
VACATED AND REMANDED.
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