United States v. Delvin McKinney ( 2014 )

Case: 13-15450 Date Filed: 07/28/2014 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15450
Non-Argument Calendar
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D.C. Docket No. 0:04-cr-60038-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DELVIN MCKINNEY,
a.k.a. Poochie,
a.k.a. Poco,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 28, 2014)
Before PRYOR, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Case: 13-15450 Date Filed: 07/28/2014 Page: 2 of 3
Delvin McKinney appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction based on Amendment 750 to the
Sentencing Guidelines and the Fair Sentencing Act of 2010 (FSA), Pub. L. No.
111-220, 124 Stat. 2372 (2010). Upon review, 1 we affirm.
Under § 3582(c)(2), a district court may not reduce a defendant’s sentence
unless (1) the defendant was sentenced based on a guideline range that the
Sentencing Commission has subsequently lowered and (2) the “reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). A reduction is not consistent with the
Sentencing Commission’s policy statements if an amendment does not have the
effect of lowering the defendant’s applicable guideline range. U.S.S.G.
§ 1B1.10(a)(2)(B).
Amendment 750 had the effect of lowering the guidelines under U.S.S.G.
§ 2D1.1, but the district court did not sentence McKinney based on those
guidelines. Instead, the district court sentenced McKinney pursuant to a
mandatory minimum sentence of life imprisonment under 21 U.S.C.
§§ 841(b)(1)(A) and 851.2 Moreover, even if McKinney were not subject to this
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
McKinney’s conviction for possessing with intent to distribute at least 50 grams of
cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) (2002), required a mandatory
life sentence because McKinney had at least two prior Florida state felony drug convictions.
2
Case: 13-15450 Date Filed: 07/28/2014 Page: 3 of 3
statutory minimum, his guideline range would be determined by his status as a
career offender under U.S.S.G. § 4B1.1, which was not affected by Amendment
750. Consequently, the district court had no authority to reduce McKinney’s
sentence under § 3582(c)(2) and Amendment 750. See United States v. Berry, 701
F.3d 374, 376-77 (11th Cir. 2012).
To the extent McKinney argues for a sentence reduction based on the FSA,
we have expressly rejected such a claim, id. at 377, and McKinney’s argument that
the crack cocaine statutes should not apply because they are racially discriminatory
cannot succeed in light of Berry, see United States v. Vega-Castillo, 540 F.3d
1235, 1236 (11th Cir. 2008).
For the foregoing reasons, we conclude the district did not err in determining
that it did not have the authority to reduce McKinney’s sentence. 3
AFFIRMED.
3
Although McKinney argued in the district court that he was also entitled to relief
pursuant to United States v. Hargrove, 732 F.3d 1253 (11th Cir. 2013), he has abandoned any
such claim by not raising it in his initial brief. See United States v. Curtis, 380 F.3d 1308,
1310-11 (11th Cir. 2004) (holding that issues not raised in a party’s initial brief are deemed
abandoned or waived). In any event, Hargrove is inapplicable because McKinney is a career
offender.
3