United States v. Gregory Randolph Berry , 615 F. App'x 645 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10394
Non-Argument Calendar
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D.C. Docket No. 1:01-cr-00426-RLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY RANDOLPH BERRY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 31, 2015)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Gregory Randolph Berry is a federal prisoner serving a mandatory life
sentence for distributing crack cocaine, in violation of 21 U.S.C. § 841(a) and
(b)(1)(A). Berry appeals pro se the district court’s denial of his second request for
a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). After review, we affirm. 1
A district court may reduce a defendant’s term of imprisonment if the
defendant was sentenced based on a sentencing range that was later lowered by the
Sentencing Commission and “if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2);
see also U.S.S.G. § 1B1.10(a)(1). A sentence reduction is not authorized under
§ 3582(c)(2) when the retroactive guideline amendment “does not have the effect
of lowering the defendant’s applicable guideline range.” U.S.S.G.
§ 1B1.10(a)(2)(B).
As explained in our prior opinion affirming the district court’s denial of
Berry’s first § 3582(c)(2) motion (based on Amendment 750), where the guideline
amendment reduces the defendant’s base offense level, but does not change the
sentencing range upon which the defendant’s sentence was based, the district court
is not authorized to grant the § 3582(c)(2) motion. United States v. Berry, 701
F.3d 374, 376 (11th Cir. 1012). Thus, a defendant is not eligible for a § 3582(c)(2)
sentence reduction if the amendment does not actually lower his applicable
1
“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. Jones, 548 F.3d 1366, 1368 (11th Cir. 2008).
2
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guidelines range because the defendant’s sentence was based on the statutory
mandatory minimum. United States v. Mills, 613 F.3d 1070, 1077-78 (11th Cir.
2010); see also U.S.S.G. § 1B1.10 cmt. n.1(A).
This time, Berry’s § 3582(c)(2) motion is based on Amendment 782.
Amendment 782 lowered the base offense level for many drug offenses, including
Berry’s offense, by revising the Drug Quantity Table in U.S.S.G. § 2D1.1(c). See
U.S.S.G. app. C, amend. 782; see also U.S.S.G. § 1B1.10(d) (listing Amendment
782 among the amendments that may serve as the basis for a § 3582(c)(2)
reduction).
The district court did not err in denying Berry’s § 3582(c)(2) motion based
on Amendment 782. Although Amendment 782 lowered the base offense level for
Berry’s offense, it had no effect on Berry’s guidelines range or ultimate sentence.
Berry’s applicable guidelines range of 360 to life was based on U.S.S.G. § 4B1.1,
the career offender guideline, not on the Drug Quantity Table in § 2D1.1. And,
Berry’s life sentence was required by the statutory mandatory minimum. See 21
U.S.C. § 841(b)(1)(A) (requiring a life sentence if the § 841(a) defendant had two
or more prior convictions for felony drug offenses); U.S.S.G § 5G1.1(c)(2) (2002)
(permitting the sentence to be imposed at any point within the applicable
guidelines range, but not less than the statutory minimum). Accordingly, Berry
was not eligible for a sentence reduction based on Amendment 782.
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Berry raises several arguments for the first time on appeal, all of which lack
merit. 2 Berry contends that his Fifth and Eighth Amendment rights have been
violated because he will be incarcerated for longer than he would be if the
amendments applied. However, these constitutional claims are “extraneous
resentencing issues” that are outside the scope of a § 3582(c)(2) proceeding. See
United States v. Bravo, 203 F.3d 778, 780-82 (11th Cir. 2000).
Berry also argues that denying him a reduction based on Amendment 782
violates the Ex Post Facto Clause. There is no merit to this argument, however,
because Amendment 782 did not increase the range of punishment applicable to
Berry above what it was at the time he committed his crime. See United States v.
Colon, 707 F.3d 1255, 1258-59 (11th Cir. 2013) (explaining that no Ex Post Facto
problem exists “[s]o long as the effect of post-conduct amendments to the
guidelines is not to increase the defendant’s punishment beyond what it would
have been without those amendments”).
Finally, Berry argues that the district court should have given him a sentence
reduction based on Amendment 788. Amendment 788 merely added Amendment
782 to the list of retroactive amendments that could serve as the basis for a
§ 3582(c)(2) motion and delayed its effective date until November 1, 2015. See
2
Although we review arguments not raised in the district court only for plain error,
United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009), with respect to Berry’s new
arguments, there is no error, plain or otherwise.
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U.S.S.G. app. C, amend. 788. As such, Amendment 788 is not itself an
amendment that could have the effect of lowering a defendant’s sentencing range.
Further, Amendment 788 is not included in U.S.S.G. § 1B1.10’s list of
amendments that may be considered for retroactive application pursuant to a
§ 3582(c)(2) motion. See U.S.S.G. § 1B1.10(a)(1), (d).
For all these reasons, we affirm the district court’s denial of Berry’s
§ 3582(c)(2) motion.
AFFIRMED.
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