United States v. William D. Cook ( 2013 )

Case: 12-13451 Date Filed: 05/29/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13451
Non-Argument Calendar
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D.C. Docket No. 8:05-cr-00404-SCB-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM D. COOK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 29, 2013)
Before TJOFLAT, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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William D. Cook, a federal prisoner, appeals from the district court’s denial
of his 18 U.S.C. § 3582(c)(2) motion to reduce sentence. The district court denied
Cook’s motion because, as a career offender, Amendment 750 did not reduce his
guideline range. 1 On appeal, Cook argues he should be eligible for § 3582(c)(2)
resentencing because the sentencing court considered his unenhanced criminal
history category in sentencing him below the career offender guideline range.
After careful review, we affirm. 2
A sentence reduction under § 3582(c)(2) must be “consistent with applicable
policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
The applicable policy statements, found in U.S.S.G. § 1B1.10, state that “[a]
reduction in the defendant’s term of imprisonment . . . is not authorized under 18
U.S.C. § 3582(c)(2) if . . . [the] amendment . . . does not have the effect of
lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
The 2012 Commentary to the Sentencing Guidelines expressly provides that the
“applicable guideline range” is “the guideline range that corresponds to the offense
level and criminal history category determined pursuant to § 1B1.10(a), which is
determined before consideration of any departure provision in the Guidelines
1
Amendment 750 amended the drug quantity table in § 2D1.1(c) to reduce offense
levels in crack cocaine cases. See U.S.S.G. App. C, Amends. 748, 750. It was made retroactive
by Amendment 759, effective November 1, 2011. See id., Amend. 759.
2
We review de novo a district court’s conclusions about the scope of its legal authority
under § 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008).
2
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Manual or any variance.” Id. § 1B1.10, cmt. n.1(A). The Supreme Court has held
that a Commentary provision “which functions to interpret a guideline or explain
how it is to be applied” is binding as long as the Commentary does not conflict
with the Constitution, a federal statute, or the guideline at issue. Stinson v. United
States, 113 S. Ct. 1913, 1917-18 (1993) (quotations omitted).
In Moore, we addressed whether Amendment 706 authorized reductions
under § 3582(c)(2) for defendants who had been convicted of crack cocaine
offenses, but sentenced under the career offender guidelines. See United States v.
Moore, 541 F.3d 1323, 1325 (11th Cir. 2008). We explained that § 3582(c)(2)
only authorizes reductions to sentences that were “based on” sentencing ranges that
were subsequently lowered. Moore, 541 F.3d at 1327. As Amendment 706 did
not lower the career offender offense levels, we concluded it did not lower the
sentencing range upon which a career offender’s sentence had been based. Id. We
also explained that the Commentary to § 1B1.10 “[made] clear” that a reduction
was not authorized where an amendment lowered a defendant’s base offense level
for the offense of conviction but not the career offender sentencing range under
which the defendant was sentenced. Id. at 1327-28.
Even after a divided Supreme Court interpreted § 3582’s “based on”
language in Freeman v. United States, 131 S. Ct. 2685 (2011), Moore remains
binding precedent in this Circuit. United States v. Lawson, 686 F.3d 1317, 1321
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(11th Cir.), cert. denied, 133 S. Ct. 568 (2012). Freeman did not address
“defendants who were assigned a base offense level under one guideline section,
but who were ultimately assigned a total offense level and guideline range under
§ 4B1.1.” Id. Therefore, a defendant who was convicted of a crack cocaine
offense but sentenced as a career offender is not eligible for a § 3582(c)(2)
reduction under Amendment 750. Id.
The Commission’s updated Commentary restricting § 3582 eligibility
squarely addresses the exception Cook proposes on appeal and completely
forecloses his argument, especially since the Supreme Court has held that a
Commentary provision explaining how a guideline is to be applied is binding so
long as the Commentary does not conflict with the Constitution, a federal statute,
or the guideline at issue. See Stinson, 113 S. Ct. at 1917-18. The district court
found that Cook was a career offender, and calculated his guideline range
accordingly. The Commentary states that eligibility can be triggered only by an
amendment to the guideline range calculated under § 1B1.1(a), before any
variances or departures are imposed. See U.S.S.G. § 1B1.10, cmt. n.1(A). Cook,
as a career offender, cannot be eligible for § 3582 relief regardless of the rationale
the court may have used in imposing a below-guidelines sentence, because the
career offender guidelines have not been amended. See Moore, 541 F.3d at 1327.
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Cook’s arguments that the Commentary to § 1B1.10 should not be followed
lack merit. In Melvin, we affirmed that the Sentencing Commission has the
authority to promulgate policy statements that affect eligibility for resentencing.
See United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir. 2009). Moreover,
Cook's argument that the Commentary does not interpret a guideline provision is
misplaced, since the Commentary to §1B1.10 explains how to calculate the
relevant offense level and “applicable guideline range.” See U.S.S.G. § 1B1.10,
cmt. nn.1–6. Finally, Cook’s argument that the Commentary is inconsistent with
Freeman’s interpretation of the term “based on” is analogous to the arguments we
have already rejected in Lawson. See Lawson, 686 F.3d at 1321. Accordingly, we
affirm the district court’s denial of Cook’s § 3582(c)(2) motion.
AFFIRMED.
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