United States v. Leon King , 353 F. App'x 410 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12806 ELEVENTH CIRCUIT
NOVEMBER 30, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00355-CR-T-17MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEON KING,
a.k.a. PK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 30, 2009)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Leon King appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2)
motion to reduce sentence. King argues that Amendment 706 reduced his base
offense level, because he was sentenced under the crack cocaine guidelines, rather
than the career offender guideline. For the reasons set forth below, we affirm.
I.
King pled guilty to possession with intent to distribute five grams or more of
crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). The
presentence investigation report (“PSI”) initially set King’s base offense level at
34, under U.S.S.G. § 2D1.1, because King’s offense involved the equivalent of at
least 3,000 kilograms, but less than 10,000 kilograms, of marijuana. However, the
PSI also indicated that King qualified as a career offender under U.S.S.G. § 4B1.1.
His total offense level after applying the career offender enhancement was also 34.
King received a three-level reduction for acceptance of responsibility, pursuant to
§ 3E1.1(a), resulting in a total offense level of 31. King had 11 criminal history
points, which would have placed him in criminal history category V. However,
because King was a career offender, his criminal history category was enhanced to
VI. King’s offense level of 31 combined with criminal history category VI to yield
a guideline imprisonment range of 188 to 235 months. King filed objections to the
PSI arguing, inter alia, that he should not be considered a career offender. At the
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sentencing hearing, King again argued that he should not be considered a career
offender, but the court overruled his objection. The court adopted the guideline
applications set forth in the PSI, and determined that King was subject to a total
offense level of 31, criminal history category VI, and a guideline imprisonment
range of 188 to 235 months. The court sentenced King to 188 months’
imprisonment, followed by 48 months’ supervised release.
In March 2009, the district sua sponte appointed counsel to represent King
and ordered the government and King to address whether King was entitled to a
sentence reduction under § 3582(c)(2) and Amendment 706.
The government responded that King was not entitled to a reduction,
because he was sentenced as a career offender under § 4B1.1, and, therefore,
Amendment 706 had no bearing on his base offense level.
King responded that he was entitled to a sentence reduction under
§ 3582(c)(2) and Amendment 706, because he was sentenced based on the crack
cocaine guidelines, and not as a career offender. He asserted that section 4B1.1(b)
provides that the career offender enhancement applies only if the enhanced offense
level is greater than the offense level that is otherwise applicable. King contended
that, in his case, the career offender offense level was equal to his otherwise
applicable guideline range, because his base offense level under § 2D1.1 was also
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34. Thus, King asserted that his base offense level should be reduced to 34,
because he was sentenced based on a guideline range that was subsequently
lowered by the Sentencing Commission. Alternatively, King argued that he was
eligible for a § 3582(c)(2) sentence reduction even if he was sentenced as a career
offender.
The district court agreed with the government’s position, incorporated the
government’s response by reference, and refused to reduce King’s sentence under
§ 3582(c)(2).
II.
As an initial matter, King was, in fact, sentenced as a career offender. The
PSI determined that King qualified as a career offender, and it enhanced his
criminal history category to VI based on application of the career offender
guideline. At the sentencing hearing, the district court specifically overruled
King’s objection to the application of the career offender guideline, adopted the
PSI’s guideline calculations, and determined that King’s guideline sentencing
range was 188 to 235 months’ imprisonment, based on his offense level of 31 and
his enhanced criminal history category of VI.
Because King was sentenced under § 4B1.1 and Amendment 706 only
affects base offense levels in § 2D1.1, the amendment does not reduce King’s
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sentencing range, and he was ineligible for relief under § 3582(c)(2). See United
States v. Moore, 541 F.3d 1323, 1327-28, 1330 (11th Cir. 2008); U.S.S.G.
§ 1B1.10, comment. (n.1(A)) (prohibiting reduction where “amendment does not
have the effect of lowering the defendant’s applicable guideline range because of
the operation of another guideline”). Furthermore, King cannot challenge, in this
§ 3582(c)(2) proceeding, the district court’s original sentencing determination that
he qualified as a career offender. See United States v. Bravo, 203 F.3d 778, 781
(11th Cir. 2000) (holding that, in § 3582(c)(2) proceedings, “all original sentencing
determinations remain unchanged with the sole exception of the guideline range
that has been amended since the original sentencing”) (emphasis in original).
Finally, even if King’s original sentence had been based on § 2D1.1 and
Amendment 706 had reduced that base offense level to 32, his guideline range
would not change, because he would face an offense level of 34 under the career
offender guideline. See U.S.S.G. § 4B1.1(b)(B) (providing that offense level 34
applies to career offenders who face a statutory maximum sentence of 25 years or
more, if level 34 “is greater than the offense level otherwise applicable”).
Accordingly, Amendment 706 did not reduce King’s guideline sentencing range
and we affirm his 188-month sentence.
AFFIRMED.
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