United States v. Benjamin Presley ( 2012 )

Case: 12-10041 Date Filed: 12/13/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10041
Non-Argument Calendar
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D.C. Docket No. 2:02-cr-00020-LGW-JEG-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
BENJAMIN PRESLEY,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(December 13, 2012)
Before TJOFLAT, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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In May 2002, Benjamin Presley pled guilty to two counts of a multi-count
indictment: Count Three, distribution of 50 grams or more of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1), and Count Six, possession of firearms by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). In July 2002, the District
Court sentenced Presley, a career offender, see U.S.S.G. § 4B1.1, to concurrent
prison terms of 235 months on Count Three and 120 months on Count Six.
In March 2008, Presley moved the District Court pursuant to 18 U.S.C.
3582(c)(2) to reduce his sentence on Count Three because Amendment 706 to the
Sentencing Guidelines, which applied retroactively, reduced the U.S.S.G. § 2D1.1
base offense level for crack offenses. The court, finding that the new base offense
level, 31, was the same as the alternative offense level under the career offender
guideline, U.S.S.G. § 4B1.1, determined that the amended guideline sentence
range, 31, coupled with a criminal history category of VI, yielded a sentence range
of 188 to 235 months’ imprisonment. The court then reduced Presley’s Count
Three sentence to 188 months’ confinement.
In November 2011, Presley again moved the District Court to reduce his
Count Three sentence pursuant to § 3582(c)(2), basing his motion on Amendment
750 to the Guidelines, which was retroactive. The court found that Amendment
750 reduced the Count Three adjusted offense level under § 2D1.1(c) to 30;
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however, the career offender total offense level remained at 31. The court
therefore concluded that Amendment 750 did not have the effect of lowering the
Count Three sentence range and denied Presley’s motion. Presley now appeals.
We affirm.
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). Although a district court generally cannot modify a
term of imprisonment once it has been imposed, an exception lies in § 3582(c)(2),
where:
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 pursuant to 28 U.S.C.
§ 994(o) . . . the court may reduce the term of imprisonment, after
considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent
that they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2); see also United States v. Phillips, 597 F.3d 1190, 1194-
95, n.10 (11th Cir. 2010). A reduction of a term of imprisonment is not consistent
with applicable policy statements issued by the Sentencing Commission—and is,
therefore, not authorized under § 3582(c)(2)—if the retroactive amendment does
not have the effect of lowering the guideline sentence range. U.S.S.G. §
1B1.10(a)(2)(B). This includes where the amendment “does not have the effect of
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lowering the defendant’s applicable guideline range because of the operation of
another guideline . . . .” United States v. Moore, 541 F.3d 1323, 1327-28 (11th
Cir. 2008) (quotation omitted) (emphasis in original).
In Moore, we held that defendants, who originally were sentenced under
U.S.S.G. § 4B1.1(b)’s career-offender table, were not eligible for § 3582(c)(2)
relief because their sentence ranges were not based on the drug-quantity offense
levels that had been lowered by Amendment 706. Id. at 1327-30. A career
offender’s offense level is determined by using either the offense level that would
ordinarily apply, or, if it results in a higher offense level, the table in § 4B1.1(b).
U.S.S.G. § 4B1.1(b).
A proceeding under § 3582(c)(2) and U.S.S.G. § 1B1.10 does not constitute
a full resentencing; the court must maintain all original sentencing determinations
with the sole exception of applying the relevant amended guideline sentence
range. United States v. Bravo, 203 F.3d 778, 780-81 (11th Cir. 2000). A district
court engages in a two-part analysis when considering a § 3582 motion for a
sentence reduction. Id. at 780. First, it recalculates the sentence using the
amended sentence range, while maintaining all other guideline applications, to
determine the new applicable offense level and sentence range. Id. Second, the
court, in the exercise of discretion, determines whether to impose the newly
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fashioned sentence under the amended guideline or retain the original sentence,
based on the factors in 18 U.S.C. § 3553(a). Id. at 781.
Amendment 750 to the Sentencing Guidelines revised the crack cocaine
quantity tables listed in U.S.S.G. § 2D1.1(c), pursuant to the Fair Sentencing Act
of 2010. See U.S.S.G. App. C, Amend. 750, Reason for Amend. and U.S.S.G.
App. C, Amend. 759. Although Amendment 750 reduced the Count Three
adjusted offense level under § 2D1.1(c) to 30, the career offender total offense
level remained at 31. Therefore, Amendment 750 did not have the effect of
lowering the Count three sentence range.
AFFIRMED.
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