United States v. Kevin Applefield , 521 F. App'x 793 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13273
Non-Argument Calendar
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D.C. Docket No. 8:03-cr-00288-SDM-MAP-9
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN APPLEFIELD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 5, 2013)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Kevin Applefield, a federal prisoner appearing with counsel, appeals the
district court’s denial in part of his 18 U.S.C. § 3582(c)(2) motion for a sentence
reduction, pursuant to Amendment 750 to the Sentencing Guidelines. On appeal,
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Applefield asserts that he is eligible for the full extent of Amendment 750 relief
because the district court erred when it reduced Applefield’s sentence based on his
alleged career offender guideline range from U.S.S.G. § 4B1.1(b) rather than an
offense level from the U.S.S.G. § 2D1.1, under which Applefield was originally
sentenced.
We review de novo a district court’s legal conclusions in regard to the scope
of its authority under the Sentencing Guidelines. United States v. Moore, 541 F.3d
1323, 1326 (11th Cir. 2008). Facts contained in a PSI are deemed admitted for
sentencing purposes unless a party objects to them clearly and specifically at
sentencing. United States v. Davis, 587 F.3d 1300, 1303-04 (11th Cir. 2009) (18
U.S.C. § 3582(c)(2) proceeding context). The rule of lenity applies if a sentencing
guideline is ambiguous. United States v. Jeter, 329 F.3d 1229, 1230 (11th Cir.
2003). The rule of lenity requires a grievous ambiguity or uncertainty in the
governing text. United States v. Maupin, 520 F.3d 1304, 1307 (11th Cir. 2008).
The simple existence of some textual ambiguity is insufficient to warrant
application of this rule because most statutes are ambiguous to some extent. Id.A defendant is a career offender if (1) the defendant was at least 18 years old
at the time the defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least two prior felony
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convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). The term “crime of violence” in § 4B1.1(a) means in part
any offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that is burglary of a dwelling. U.S.S.G. § 4B1.2(a)(2). If the
offense level for a career offender from the table in § 4B1.1(b) is greater than the
offense level otherwise applicable, the offense level from the table in § 4B1.1(b)
shall apply. U.S.S.G. § 4B1.1(b).
A district court may modify an imprisonment term 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). Part A of Amendment 750 amended § 2D1.1 by reducing base
offense levels associated with various amounts of crack cocaine under the Drug
Quantity Table in § 2D1.1(c). See U.S.S.G. App. C, Amend. 750, Pt. A. In 2011,
the Sentencing Commission decided to make Parts A and C of Amendment 750
retroactive. 76 Fed.Reg. 41332-01 (2011). Amendment 750 became effective and
retroactive on November 1, 2011. U.S.S.G. App. C, Amends. 750, 759.
A district court must follow a two-step process in ruling on a § 3582(c)(2)
motion. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the
court must recalculate the defendant’s sentence “by substituting the amended
guideline range for the originally applied guideline range, and then using that new
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base level to determine what ultimate sentence it would have imposed.” Id.According to the Sentencing Guidelines, in determining whether a reduction in the
defendant’s imprisonment term is warranted, “the court shall determine the
amended guideline range that would have been applicable to the defendant if the
[applicable retroactive amendment] had been in effect at the time the defendant
was sentenced.” U.S.S.G. § 1B1.10(b)(1), 1B1.10(c), comment. (n.4). In making
such determination, the court shall substitute only the applicable retroactive
amendment for the corresponding guideline provisions that were applied when the
defendant was sentenced and shall leave all other guideline application decisions
unaffected. Id. Under the second step, the court has the discretion to decide
whether to retain the original sentence or to resentence the defendant under the
amended guideline range. See Bravo, 203 F.3d at 781.
“By its terms, § 3582(c)(2) does not authorize a sentencing or resentencing
proceeding.” Dillon v. United States, 560 U.S. , 130 S.Ct. 2683, 2690, 177
L.Ed.2d 271 (2010). The Supreme Court has rejected a defendant’s argument that
the district court erred in failing to correct two mistakes in his original sentence,
concluding that because such aspects of his sentence were not affected by the
amendment to § 2D1.1, they were outside the scope of the proceeding authorized
by § 3582(c)(2). Dillon, 560 U.S. at , 130 S.Ct. at 2693-94.
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A retroactive amendment to the drug quantity table at § 2D1.1 does not have
the effect of lowering the career offender-based guideline range within the
meaning of § 3582(c)(2), and district courts are not authorized to reduce a sentence
on that basis. See Moore, 541 F.3d at 1327-28, 1330. In Freeman v. United States,
131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), a plurality of the Supreme Court held that
a defendant was eligible for a § 3582(c)(2) reduction in a specific situation where
the defendant’s plea agreement called for a particular sentence based on the
subsequently lowered Sentencing Guidelines. We held in United States v. Lawson,
686 F.3d 1317 (11th Cir. 2012), that Moore remains binding precedent in the
Eleventh Circuit because it was not overruled by Freeman, because Freeman did
not address defendants whose total offense level was calculated according to the
career offender provision. See Lawson, 686 F.3d at 1321.
Section 3582(c)(2) did not empower or obligate the district court to reduce
Applefield’s sentence below the reduction that the district court already granted
here. Applefield’s career offender status was not nullified when he was originally
sentenced based on an offense level from U.S.S.G. § 2D1.1, rather than an offense
level from U.S.S.G. § 4B1.1(b).
AFFIRMED.
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