United States v. James Fitzgerald Prevo ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15421
Non-Argument Calendar
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D. C. Docket No. 1:09-cr-00189-CB-M-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES FITZGERALD PREVO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(March 7, 2014)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
James Prevo, proceeding pro se, appeals the district court’s denial of his
motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 750 to the Sentencing Guidelines. The district court denied Prevo’s
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motion because it found that he was ineligible for a reduction in sentence as he was
serving a statutory mandatory-minimum sentence.
On appeal, Prevo argues that the district court abused its discretion by
denying his § 3582(c)(2) motion because the Fair Sentencing Act (“FSA”), Pub. L.
No. 111-220, 124 Stat. 2372 (2010), lowered his mandatory-minimum sentence to
five years. Prevo relies on Dorsey v. United States, 567 U.S. ___, ___, 132 S. Ct.
2321, 2326, 183 L. Ed. 2d 250 (2012), and states that the Supreme Court’s
reasoning in Dorsey indicates that the FSA applies to a § 3582(c)(2) proceeding
brought by a defendant sentenced prior to the FSA’s effective date. He also
contends that the district court incorrectly believed his mandatory-minimum
sentence was ten years instead of five years. Relying on Alleyne v. United States,
570 U.S. ___, 133 S. Ct. 2851, 186 L.Ed2d 314 (2013), Prevo argues that his
sentence is in violation of the Fifth and Sixth Amendments because he was
sentenced for conduct that was not charged in the indictment or provided for in the
plea agreement. The government has responded with a “Motion for Summary
Affirmance and to Stay Briefing Schedule.”
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
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outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969);
see United States v. Martinez, 407 F.3d 1170, 1173-74 (11th Cir. 2005) (construing
the defendant’s “unconventional” motion as a motion for summary reversal,
granting the motion, vacating the defendant’s sentence, and remanding the case for
resentencing where the district court had committed plain error by treating the
Sentencing Guidelines as mandatory).
We review de novo the district court’s legal conclusions regarding the scope
of its authority under § 3582(c)(2). United States v. Berry, 701 F.3d 374, 376 n.1
(11th Cir. 2012).
A district court may modify a term of imprisonment “in the case of a
defendant who 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). Section 3582(c)(2) does not authorize a
reduction in sentence where a retroactive amendment to the Guidelines reduces a
defendant’s base offense level but does not alter the sentencing range upon which
his sentence was based. Berry, 701 F.3d at 376. The Supreme Court has held that
explained that § 3582(c)(2) proceedings have a limited scope and purpose, and that
the proceedings are “not constitutionally compelled,” but instead represent a
“congressional act of lenity. Dillon v. United States, 560 U.S. 817, ___, 130 S. Ct.
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2683, 2691-92, 177 L. Ed. 2d 271 (2010); see also United States v. Bravo, 203 F.3d
778, 781-82 (11th Cir. 2000) (holding that constitutional claims are “extraneous
resentencing issues” that a court cannot address during a § 3582(c)(2) proceeding,
and that a defendant is entitled to raise constitutional challenges to a sentence by
making a collateral attack under 28 U.S.C. § 2255).
Amendment 750 retroactively lowered the sentencing range applicable to
crack cocaine offenses by revising the crack cocaine quantity tables listed in
U.S.S.G. § 2D1.1(c). U.S.S.G. App. C, amend. 750 (2011). Following
Amendment 750, a defendant responsible for at least 28 grams, but less than 112
grams, of cocaine base has a base offense level of 26. U.S.S.G. § 2D1.1(c)(7).
The FSA reduced the mandatory-minimum penalties for crack cocaine offenses in
§ 841(b) as to offenders who committed crack cocaine offenses before its August
3, 2010, effective date, but who were not sentenced until after that date. Dorsey,
567 U.S. at ___, 132 S.Ct. at 2326; Berry, 701 F.3d at 377. Following the FSA, a
defendant who commits an offense involving 28 grams or more of cocaine base
after a prior conviction for a felony drug offense is subject to a mandatory
minimum sentence of ten years, and a maximum sentence of life imprisonment. 21
U.S.C. § 841(b)(1)(B). The Guidelines provide that a court may sentence a
defendant anywhere within the applicable guideline range except that the sentence
imposed must not be less than the statutorily required minimum sentence.
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U.S.S.G. § 5G1.1(c)(2). Thus, if a defendant’s sentence is based on a § 841(b)
mandatory minimum that is above the applicable guideline range, Amendment 750
does not lower the defendant’s guideline range and the defendant is not eligible for
a § 3582(c)(2) reduction. Berry, 701 F.3d at 376.
Here, Prevo was sentenced after the FSA’s effective date for an offense
committed prior to the FSA’s effective date, and, thus, he was subject to the FSA’s
reduced statutory penalties for crack cocaine offenders. See Dorsey, 567 U.S. at
___, 132 S.Ct. at 2326. At sentencing, the district court correctly determined that
Prevo was subject to an enhanced 10-year statutory minimum in § 841(b)(1)(B)
under the provisions of the FSA because his offense involved more than 28 grams
of cocaine base and he had several prior felony convictions for drug offenses.
Although Amendment 750 reduces Prevo’s § 2D1.1 offense level, it does not
reduce his advisory guideline range below the statutory mandatory minimum. See
U.S.S.G. § 5G1.1(c)(2). Thus, because Prevo is serving a mandatory-minimum
sentence, the district court correctly denied his § 3582(c)(2) motion, as
Amendment 750 did not have the effect of lowering his guideline range. See 18
U.S.C. § 3582(c)(2).
Prevo’s arguments regarding the application of the FSA to his § 3582(c)(2)
proceedings are meritless because the district court at sentencing used the FSA to
determine his statutory penalties, and, thus, he was sentenced pursuant to the FSA.
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Likewise, the government correctly notes that Prevo mistakenly believes his
statutory sentencing range was 5 to 40 years under § 841(b)(1)(B), as he failed to
account for the § 851 enhancement that was filed during his criminal proceedings.
Additionally, Prevo’s argument based on Alleyne does not provide any basis for
§ 3582(c)(2) relief because a district court may not consider extraneous
constitutional challenges to a sentence during a § 3582(c)(2) proceeding. See
Dillon, 560 U.S. at ___, 130 S.Ct. at 2691-92; Bravo, 203 F.3d at 781-82.
Accordingly, the government’s motion for summary affirmance is
GRANTED, the judgment of the district court is AFFIRMED, and the
government’s motion to stay the briefing schedule is DENIED as moot.
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