United States v. Gregory S. Jones , 256 F. App'x 251 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 2, 2007
No. 06-15654 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 89-00013-CR-GET-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY S. JONES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 2, 2007)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Gregory S. Jones, a federal prisoner, appeals the district court’s denial of his
motion to reduce his sentence based on a retroactive amendment to the Sentencing
Guidelines, pursuant to 18 U.S.C. § 3582(c)(2). A federal jury convicted Jones of
two counts of bank robbery, two counts of firearm offenses under 18 U.S.C.
§ 924(c) for each respective robbery, and one count of possession of a firearm by a
convicted felon. On appeal, Jones argues that the district court abused its
discretion in denying his motion to reduce his sentence because, based on the
retroactive application of U.S.S.G. App. C, Amendment 599 (2000)
(“Amendment 599”), it impermissibly applied weapons enhancements to determine
the offense level of the bank robbery counts under the Sentencing Guidelines.
Jones contends that, by applying these weapon enhancements to determine his
offense level, the court double counted the conduct accounted for in the firearm
charges. Jones further argues that the district court still could reduce his total
sentence, even if he already had completed the guideline portion of his punishment
and only continued to serve his consecutive statutory mandatory sentences under
§ 924(c). Lastly, Jones contends that the court should consider the fact that he is
older, has published two books, has written a self-development program, maintains
exceptional institution conduct, and is not presently a dangerous individual.
I. BACKGROUND
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We review “a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the guidelines, for
abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343 (11th
Cir. 2003). “A district court by definition abuses its discretion when it makes an
error of law.” Id. (citation omitted). To the extent the district court made legal
conclusions concerning the scope of its authority under the Sentencing Guidelines,
in a proceeding to modify a sentence under § 3582(c)(2), review is de novo.
United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002).
A district court ordinarily cannot modify a term of imprisonment after it has
been imposed. United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005),
cert. denied, 547 U.S. 1050 (2006). “[H]owever, 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, upon a defendant’s
motion, the court may reduce the term of imprisonment, after considering the
factors set forth in section 3553(a) to the extent that they are applicable, if such a
reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” Id. (quotation and citation omitted); see also U.S.S.G. § 1B1.10(a)
(“[w]here a defendant is serving a term of imprisonment, and the guideline range
applicable to that defendant has subsequently been lowered as a result of an
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amendment to the Guidelines Manual . . . , a reduction in the defendant’s term of
imprisonment is authorized under 18 U.S.C. § 3582(c)(2).”).
Amendment 599, “which was enacted in order to clarify under what
circumstances a weapons enhancement properly may be applied to an underlying
offense when the defendant has also been convicted for the use or possession of a
firearm pursuant to 18 U.S.C. § 924(c),” is listed as an amendment covered by the
policy statement. U.S.S.G. § 1B1.10(c); see also United States v. Pringle, 350
F.3d 1172, 1178-81 (11th Cir. 2003).
As amended by Amendment 599 , Application Note 4 to U.S.S.G. § 2K2.4
now provides:
If a sentence under this guideline is imposed in conjunction with a
sentence for an underlying offense [i.e., armed robbery], do not apply
any specific offense characteristic for possession, brandishing, use, or
discharge of an explosive or firearm when determining the sentence
for the underlying offense. . . . Do not apply any weapon enhancement
in the guideline for the underlying offense, for example, if (A) a
co-defendant, as part of the jointly undertaken criminal activity,
possessed a firearm different from the one for which the defendant
was convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug
trafficking offense, the defendant possessed a firearm other than the
one for which the defendant was convicted under 18 U.S.C. § 924(c).
However, if a defendant is convicted of two armed bank robberies, but
is convicted under 18 U.S.C. § 924(c) in connection with only one of
the robberies, a weapon enhancement would apply to the bank robbery
which was not the basis for the 18 U.S.C. § 924(c) conviction.
U.S.S.G. App. C, Amend. 599 (2000). To determine whether a reduction in
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sentence is warranted the court must (1) reassessing the defendant’s sentencing
package under the Guidelines, as amended, and (2) considering the sentencing
factors of 18 U.S.C. § 3553(a). See United States v. Vautier, 144 F.3d 756, 760
(11th Cir. 1998).
Here, the district court did not abuse its discretion in denying Jones’s
§ 3582(c)(2) motion. Although the court did not conduct its own analysis, it
adopted the government’s arguments, which properly applied the two-step analysis
to determine that a reduction was not warranted. After careful review of the record
and the parties’ briefs, we affirm the district court’s order denying Jones’s
§ 3582(c) motion.
III. CONCLUSION
AFFIRMED.
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