United States v. Sircorey Wilder ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 16, 2009
No. 08-11807 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80091-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SIRCOREY WILDER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 16, 2009)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Appellant Sircorey L. Wilder, through counsel, appeals the district court’s
denial of his pro se motion for a reduced sentence, filed pursuant to 18 U.S.C.
§ 3582(c)(2). Wilder’s § 3582(c)(2) motion was based on Amendment 706 to the
United States Sentencing Guidelines, which reduced base offense levels applicable
to crack cocaine. On appeal, Wilder argues that the district court erred in denying
his § 3582(c)(2) motion based on his status as a career offender because he
received a variance under 18 U.S.C. § 3553(a), and was not sentenced “within the
career offender sentencing range.” He also submits that the district court erred by
not considering the reasonableness of his sentence and the racial disparity created
by the crack-to-powder-cocaine ratio.
In a § 3582(c)(2) proceeding, “we review de novo the district court’s legal
conclusions regarding the scope of its authority under the Sentencing Guidelines.”
United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). “We review de novo
questions of statutory interpretation.” United States v. Maupin, 520 F.3d 1304,
1306 (11th Cir. 2008). A district court may modify a term of imprisonment in the
case of a defendant who was sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). In United States v. Moore, 541 F.3d 1323,
1327–28 (11th Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct. 965(2009), and cert. denied, 2009 WL 301854 (U.S. Mar. 9, 2009) (No. 08-8554), we
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held that, if the defendant was sentenced as a career offender under § 4B1.1 and the
range was not affected by U.S.S.G. § 2D1.1, then the sentence is not “based on a
sentencing range that has subsequently been lowered.” We noted that the base
offense levels under § 2D1.1 played no role in the calculation of the career
offender range for the defendant. Id. at 1327. Thus, even though Amendment 706
was retroactive, the district court was not authorized to reduce the sentence. Id.
at 1330. We held that this result was the same when a defendant received a
downward departure for his substantial assistance under U.S.S.G. § 5K1.1 and 18
U.S.C. § 3553(a), stating that there was “no basis for concluding that the reduction
of [the defendant’s] base offense level lowered the sentencing range relied upon by
the district court in determining his sentence.” Id.Just as in Moore, Wilder’s sentencing range was determined by his career
offender status under U.S.S.G. § 4B1.1, and his crack cocaine base offense level
played no role in his ultimate sentence. Thus, Wilder was not sentenced under the
otherwise applicable base offense level in U.S.S.G. § 2D1.1, and he is ineligible
for relief under Amendment 706. See Moore, 541 F.3d at 1327, 1330; U.S.S.G.
§ 1B1.10, comment. (n.1(A)) (prohibiting reduction where “amendment does not
have the effect of lowering the defendant’s applicable guideline range because of
the operation of another guideline”). This outcome is not changed by the fact that
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Wilder received a variance under 18 U.S.C. § 3553(a) because there is no
indication that the court based his sentence on the guideline range that would have
applied absent the career offender designation. See Moore, 541 F.3d at 1330.
Moreover, the district court did not have authority to reduce Wilder’s sentence
under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621(2005), based on its reasonableness or the crack-to-powder-cocaine ratio. See
United States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008) (holding that Booker
itself does not render a defendant eligible for a sentence reduction under
§ 3582(c)(2), cert. denied, ___U.S. ___, 2009 WL 469071 (U.S. Mar. 23, 2009)
(No. 08-8865)). Accordingly, we affirm the district court’s order denying Wilder’s
motion for a reduced sentence.
AFFIRMED.
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