United States v. Micheal B. Raiford , 481 F. App'x 515 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-16194 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 27, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:01-cr-00017-WTH-GRJ-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
MICHAEL B. RAIFORD,
lllllllllllllllllllllllllllllllllllllll lDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 27, 2012)
Before BARKETT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Michael Raiford appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction based on retroactive Amendment 750
to the Sentencing Guidelines. Amendment 750 took effect on November 1, 2011,
and repromulgated as permanent the temporary emergency Amendment 748,
which, among other things, lowered the base offense levels for particular crack
cocaine quantities listed in U.S.S.G. § 2D1.1(c), pursuant to the Fair Sentencing
Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372. See U.S.S.G. App. C,
Amends. 748, 750. For the reasons set forth below, we affirm.
I.
Raiford pleaded guilty to one count of distributing a quantity of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1). In compiling the presentence
investigation report, the probation officer calculated Raiford’s sentence using the
2001 version of the Sentencing Guidelines. Raiford’s offense involved less than
250 milligrams (0.25 grams) of crack cocaine, which qualified him for a base
offense level of 12 under U.S.S.G. § 2D1.1(c). However, because Raiford had at
least two prior felony convictions for a crime of violence or a drug offense, the
probation officer classified him as a career offender and assigned him a base
offense level of 32, pursuant to U.S.S.G. § 4B1.1. After a 3-level reduction for
acceptance of responsibility, Raiford’s total offense level became 29. His status as
a career offender automatically placed him into criminal history category VI,
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which, combined with the offense level of 29, yielded a guideline range of 151 to
188 months’ imprisonment. The district court sentenced Raiford to 188 months in
prison, to be followed by 3 years of supervised release.
Subsequently, Raiford filed the instant § 3582(c)(2) motion to reduce his
sentence, predicated on Amendment 750 and the FSA. The district court denied
his motion, reasoning that he was sentenced as a career offender under § 4B1.1,
and, as such, Amendment 750 did not affect his guideline range. Raiford now
appeals, arguing that his sentence was unreasonable because it was higher than
those of other defendants who had received sentence reductions pursuant to the
FSA. He also contends that the district court erred by failing to calculate a new
base offense level under the amended Guidelines and then determine the proper
sentence reduction under the 18 U.S.C. § 3553(a) factors.
II.
We review a district court’s decision not to reduce a sentence pursuant to
§ 3582(c)(2) for an abuse of discretion. United States v. Moreno, 421 F.3d 1217,
1219 (11th Cir. 2005). The district court’s “legal conclusions regarding the scope
of its authority under the Sentencing Guidelines” are reviewed de novo. United
States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008). Under § 3582(c)(2),
where a defendant’s term of imprisonment was based on a guideline range “that
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has subsequently been lowered by the Sentencing Commission,” a district court
has the discretion to reduce the sentence, after considering the pertinent § 3553(a)
factors, “if such a reduction is consistent with applicable policy statements” of the
Guidelines. 18 U.S.C. § 3582(c)(2). The applicable policy statement, found in
U.S.S.G. § 1B1.10, lists those guideline amendments that may apply retroactively
to reduce a sentence, and Amendment 750 (parts A and C only) is included in that
list. U.S.S.G. § 1B1.10(c). However, a sentence reduction is not authorized if the
listed amendment “does not have the effect of lowering the defendant’s applicable
guideline range.” Id. § 1B1.10(a)(2)(B).
In Moore, we faced the question of whether defendants who were sentenced
as career offenders under § 4B1.1 were eligible for § 3582(c)(2) relief in light of
Amendment 706, which, like Amendment 750, lowered the base offense levels for
certain quantities of crack cocaine under U.S.S.G. § 2D1.1(c). Moore, 541 F.3d
at 1325-27. We held that the defendants did not qualify for § 3582(c)(2) relief
because Amendment 706 had no effect on their guideline ranges, which were
calculated under § 4B1.1. Id. at 1327-30.
In this case, Raiford was sentenced as a career offender under § 4B1.1, and
Amendment 750 had no effect on his guideline range. See U.S.S.G. App. C,
Amend. 750; Moore, 541 F.3d at 1327-30. Therefore, the district court had no
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authority to modify his sentence under § 3582(c)(2), regardless of whether his
original sentence was unreasonable, and the court did not need to calculate a new
base offense level or determine an appropriate sentence under the § 3553(a)
factors. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B). Accordingly,
we affirm the district court’s denial of Raiford’s § 3582(c)(2) motion.
AFFIRMED.
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