United States v. Walter Johnson ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 22, 2009
No. 08-15367 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-00171-CR-T-26MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 22, 2009)
Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Walter Johnson, through counsel, appeals from the district court’s denial of
his motion for a sentencing reduction, pursuant to 18 U.S.C. § 3582(c)(2). For the
reasons set forth below, we affirm.
I.
In 2000, a jury found Johnson guilty of conspiracy to possess with intent to
distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 846and 841(a)(1), and possession with intent to distribute more than 50 grams of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
The probation officer prepared a presentence investigation report (“PSI”)
and determined that Johnson was accountable for at least 2.5 kilograms of crack
cocaine, giving him a base offense level of 38, pursuant to U.S.S.G. § 2D1.1(c)(1).
Johnson also received a 2-level aggravating-role enhancement, giving him a total
offense level of 40. The probation officer then found that Johnson was a career
offender under U.S.S.G. § 4B1.1 because, inter alia, he had prior felony conviction
for carrying a concealed firearm, which was a “crime of violence.” Significantly,
the probation officer noted that, although Johnson’s status as a career offender
gave him a total offense level of 37, his otherwise applicable offense level of 40
was to be used because it was greater. The probation officer then found that
Johnson had a criminal history category of V based on his prior convictions, but,
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because Johnson was a career offender, he automatically received a criminal
history category of VI. An offense level of 40 and a criminal history category of
VI gave Johnson an applicable guideline range of 360 months to life imprisonment.
After adopting the factual findings and guideline calculations in the PSI, the
district court sentenced Johnson to 360 months’ imprisonment on each count, to
run concurrently.
On April 4, 2008, Johnson filed a motion for a sentencing reduction,
pursuant to § 3582(c)(2). The court appointed counsel for Johnson, and counsel
argued that Johnson was not a career offender because, under this Court’s recent
decision in United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), carrying a
concealed firearm was no longer a crime of violence. Assuming that he would no
longer automatically be subject to a criminal history category of VI, Johnson also
challenged the calculation of his criminal history score and argued that he should
have received a criminal history category of IV. He contended that this new
criminal history category of IV, coupled with a reduced offense level of 38 as
result of Amendment 706, gave him an amended guideline of 324 to 405 months’
imprisonment.
The district court concluded that Johnson was ineligible for a sentencing
reduction. Relying on, inter alia, this Court’s decision in United States v. Moore,
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541 F.3d 1323 (11th Cir. 2008), cert. denied, McFadden v. United States, 129 S.Ct.
965 (2009), and cert. denied, (U.S. Mar. 9, 2009) (No. 08-8554), the court
explained that Johnson was ineligible for a reduction because he was a career
offender. The court also found Johnson’s contention that he was no longer a career
offender to be without merit because Archer was not made retroactive, and, in the
§ 3582(c)(2) context, all original sentencing determinations remained unchanged
except for the guideline that is amended.
II.
“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. James, 548 F.3d
983, 984 (11th Cir. 2008). Under § 3582(c)(2), a district court may modify a
defendant’s term of imprisonment where he “has been 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). Any such reduction
must also be consistent with the Commission’s applicable policy statements, which
similarly provide, inter alia, that a sentencing reduction is not permitted where the
retroactive amendment “does not have the effect of lowering the defendant’s
applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
III.
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The district court in this case erroneously concluded that, under Moore,
Johnson was not eligible for a sentencing reduction because he was a career
offender. In Moore, we addressed whether certain defendants who were convicted
of crack-cocaine offenses and who were sentenced as career offenders under
§ 4B1.1 were eligible for a sentencing reduction based on Amendment 706. We
determined that, “although Amendment 706 would reduce the base offense levels
applicable to the defendants, it would not affect their guideline ranges because they
were sentenced as career offenders under § 4B1.1.” Moore, 541 F.3d at 1330.
This was so because, under § 4B1.1, the defendants’ guideline ranges were
ultimately determined by the statutory maximum penalty for the offense, not the
base offense levels reduced by Amendment 706. See U.S.S.G. § 4B1.1(b)
(providing for superseding offense levels based on the statutory maximum penalty
where those levels are “greater than the offense level otherwise applicable”). This
case is not controlled by Moore because, although Johnson was sentenced as a
career offender, his applicable guideline range was determined by his base offense
level in § 2D1.1.
Nonetheless, the district court ultimately reached the correct conclusion that
Johnson was ineligible for a sentencing reduction. This is so because, although
Amendment 706 would reduce Johnson’s total offense level from 40 to 38, the
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amendment would not affect Johnson’s criminal history category of VI. And an
offense level of 38, coupled with a criminal history category of VI, would give
Johnson an amended guideline range of 360 months to life imprisonment, the same
applicable guideline range upon which his original sentence was based.
See U.S.S.G. Ch. 5, pt. A. Thus, Amendment 706 would not have the effect of
lowering Johnson’s applicable guideline range.
Johnson seeks to avoid this result by challenging his career-offender status
and his attendant criminal history category of VI. However, he may not do so in a
§ 3582(c)(2) motion because § 1B1.10 provides that “the court shall substitute only
the amendments listed in subsection (c) for the corresponding guideline provisions
that were applied when the defendant was sentenced and shall leave all other
guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1). We have
confirmed this directive. See United States v. Bravo, 203 F.3d 778, 781 (11th Cir.
2000) (“Indeed, we have held that all original sentencing determinations remain
unchanged with the sole exception of the guideline range that has been amended
since the original sentencing.”); United States v. Vautier, 144 F.3d 756, 760 (11th
Cir. 1998) (“[O]nly the amended guideline range is changed. All other guideline
application decisions made during the original sentencing remain intact.”).
In sum, Johnson was not eligible for a sentencing reduction under
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§ 3582(c)(2) because Amendment 706 would not have the effect of lowering his
sentencing range. Accordingly, we affirm.
AFFIRMED.
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