United States v. Derrick Devon Smith , 320 F. App'x 895 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 20, 2008
No. 08-12907 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 95-08089-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK DEVON SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 20, 2008)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Derrick Devon Smith (“Smith”), a federal prisoner, appeals the district
court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).
Smith’s motion was based on Amendment 706 to the Sentencing Guidelines, which
lowered the base offense levels for certain crack cocaine cases. The district court
denied Smith’s motion because his sentencing guideline range was not lowered by
the amendment. On appeal, Smith concedes that his base offense level and
guideline range remain unchanged by Amendment 706 but contends that the
district court still had authority to reduce his sentence. Finding no error by the
district court, we AFFIRM.
I. BACKGROUND
A jury convicted Smith in 1996 of conspiracy to possess with intent to
distribute crack cocaine (Count 1), possession with intent to distribute crack
cocaine within 1000 feet of a playground (Count 8), and possession with intent to
distribute crack cocaine (Count 9). See DE-953 and 1197 at 1. The district court
dismissed Count 9 pursuant to the government’s motion. See DE-1197 at 1. At
the time of his sentencing, a base offense level of 38 was assigned to an offense
involving any amount of 1.5 kilograms or more of crack cocaine. See U.S.S.G. §
2D1.1(c)(1) (Nov. 1995). Because Smith was found responsible for 8.64
kilograms of crack cocaine, his base offense level was set at 38. See R1-1395 at 1.
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After some adjustments, Smith’s total offense level of 40 and criminal history
category of I yielded a sentencing guideline range of 292 to 365 months of
imprisonment. See DE-1197 at 7. The court sentenced Smith to the low-end range
of 292 months in prison followed by ten years of supervised release. See id. at 2-3.
Smith’s convictions and sentence were affirmed on direct appeal in an unpublished
opinion in 1999. See United States v. Hutchins, 181 F.3d 107 (11th Cir. 1999);
R1-1324; DE-1324.
In November 2007, the Sentencing Commission issued Amendment 706,
which effectively reduced by two levels the base offense levels for certain crack
cocaine offenses. See U.S.S.G. App. C., amend. 706 (2007). Under this
amendment, level 38 corresponds to offenses involving 4.5 or more kilograms of
crack cocaine, while level 36 corresponds to offenses involving 1.5 kilograms up
to 4.5 kilograms of crack cocaine. See U.S.S.G. § 1B1.10(c) (2008) and §
2D1.1(c)(1)(2008). The Sentencing Commission made Amendment 706
retroactively applicable, effective 3 March 2008. See United States v. Moore, 541
F.3d 1323, 1325 (11th Cir. 2008).
Smith subsequently filed a pro se motion for sentence reduction on grounds
that he was entitled to a two-level reduction under Amendment 706. See R1-1389
at 1. In addition, Smith contended that the district court should consider his post-
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rehabilitative conduct, such as his achieving a GED and his vocational training, in
recalculating his sentence pursuant to 18 U.S.C. § 3553(a), Kimbrough v. United
States, ___ U.S. ___, 128 S. Ct. 558 (2007), and Gall v. United States, ___ U.S.
___, 128 S. Ct. 586 (2007). See id. at 2-3.
The district court found that Smith’s base offense level of 38 would not
change under Amendment 706 because Smith’s offense involved more than 4.5
kilograms of crack cocaine. See R1-1395 at 1. Because the guideline range
remained the same, the court found that a sentence reduction was not authorized by
18 U.S.C. § 3582(c)(2). See id. at 1-2. Smith, through counsel, now appeals the
denial of his motion for sentence reduction.
II. DISCUSSSION
We review a district court’s denial of a motion for sentence reduction
pursuant to § 3582(c)(2) for abuse of discretion. See United States v. Moreno, 421
F.3d 1217, 1219 (11th Cir. 2005) (per curiam). We review a district court’s
interpretation of a statute de novo. See Moore, 541 F.3d at 1326.
Section 3582(c)(2) permits a district court to reduce a sentence “based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2) (2008). In considering a motion for
reduction, a district court engages in a two-step analysis. See United States v.
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Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the court determines the new
base level by substituting the amended guideline range for the original guideline
range. Id. If the amendment does not actually lower the defendant’s applicable
guideline range, then no sentence reduction is permitted. See U.S.S.G.
§ 1B1.10(a)(2)(B); Moore, 541 F.3d at 1330. Second, the court evaluates the
factors listed in 18 U.S.C. § 3553(a) to determine if “it will elect to impose the
newly calculated sentence under the amended guidelines or retain the original
sentence.” Bravo, 203 F.3d at 781.
The district court correctly found, and Smith now concedes, that his base
offense level remains at 38 even after Amendment 706. This is because Smith was
found responsible for 8.64 kilograms of crack cocaine and Amendment 706 assigns
a base level of 38 to those offenses involving 4.5 kilograms or more of crack
cocaine. See U.S.S.G. § 1B1.10(c) and § 2D1.1(c)(1). Because Amendment 706
did not effectively lower Smith’s base level or applicable guideline range, a
reduction in his sentence was not authorized under § 3582(c)(2). See U.S.S.G.
§ 1B1.10(a)(2)(B); Moore, 541 F.3d at 1330.
Further, the district court had no authority to reduce Smith’s sentence based
on a reconsideration of the sentencing factors in § 3553(a). A district court only
reaches this second step if the sentencing amendment actually changes the
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sentencing range upon which his or her sentence was based. See Moore, 541 F.3d
at 1330; Bravo, 203 F.3d at 780-81. In Moore, although Amendment 706 reduced
the base offense levels of two defendants, it did not affect their guideline ranges
because they were sentenced as career offenders. See id. We concluded that the
district court lacked authority under § 3582(c) to recalculate the applicable
guideline range or determine, in light of the § 3553(a) factors, whether a reduction
was warranted. See id. at 1327-30. As in Moore, Smith’s sentencing range was
not affected by Amendment 706, thereby precluding the district court from
proceeding to step two of the sentence reduction analysis.
Smith contends that, even though his sentencing guideline range remains
unchanged by Amendment 706, the district court still had authority to reduce his
sentence based upon the Sentencing Commission’s intent to lessen the unjust
disparity between sentences for crack cocaine versus powder cocaine. In support
of this argument, Smith relies on our decisions in United States v. Bravo, 203 F.3d
778 (11th Cir. 2000) and United States v. Brown, 104 F.3d 1254 (11th Cir. 1997)
(per curiam), and the Supreme Court’s decisions in Gall and Kimbraugh.
Contrary to Smith’s argument, we did not broaden a district court’s authority
under § 3582(c)(2) in Bravo or Brown. In those cases, the district court had the
discretion to reduce the defendant’s sentence pursuant to a consideration of
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§ 3553(a) factors because the sentencing amendment actually decreased the
defendant’s base offense level from 40 to 38. See Bravo, 203 F.3d at 780-81;
Brown, 104 F.3d at 1255. Bravo and Brown are thus distinguishable from Smith’s
case because Amendment 706 had no effect on Smith’s base offense level or
guideline range.
Nor did the Supreme Court’s decisions in Gall and Kimbraugh expand the
district court’s sentencing authority under § 3582(c)(2). In Gall, the Court
reaffirmed its decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738(2005), that the Sentencing Guidelines are advisory and that appellate courts
should review sentences for reasonableness under a deferential abuse-of-discretion
standard. See Gall, ___ U.S. at ___, 128 S. Ct. at 591, 594. In Kimbraugh, the
Court held that “under Booker, the cocaine Guidelines, like all other Guidelines,
are advisory only, and that the Court of Appeals erred in holding the crack/powder
disparity effectively mandatory.” Kimbraugh, ___ U.S. at ____, 128 S. Ct. at 564.
Neither Gall nor Kimbraugh involved a court’s sentencing authority under
§ 3582(c)(2), which is limited to changes to the guidelines by the Sentencing
Commission. Moreover, because “Booker is a Supreme Court decision, not a
retroactively applicable guideline amendment by the Sentencing Commission,” we
have held that “Booker is inapplicable to § 3582(c)(2) motions.” United States v.
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Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005) (per curiam). Likewise, Kimbraugh
and Gall are Supreme Court decisions which do not provide an independent basis
for a sentence reduction in a § 3582(c)(2) motion.
III. CONCLUSION
The district court did not abuse its discretion in denying Smith’s motion for
a sentence reduction. Amendment 706 did not alter Smith’s base offense level or
his applicable guideline range. Accordingly, the district court lacked authority
under § 3582(c)(2) to reduce Smith’s sentence. AFFIRMED.
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