United States v. Aaron Lee Bostic ( 2012 )

Case: 11-15699 Date Filed: 07/19/2012 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15699
Non-Argument Calendar
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D.C. Docket No. 5:03-cr-00073-WTH-TBS-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON LEE BOSTIC,
a.k.a. Aaron Bostic,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 19, 2012)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Aaron Lee Bostic, a federal prisoner convicted of a crack cocaine offense,
appeals, through counsel, the district court’s order sentencing him as a career
offender after a hearing on his counseled 18 U.S.C. § 3582(c)(2) motion to reduce
his sentence per Amendment 750, which lowered the base offense levels
applicable to crack cocaine. On appeal, Bostic, who has never contested the
determination that he qualified as a career offender per U.S.S.G. § 4B1.1(b),
argues that the district court erred in sentencing him under the career offender
guidelines because the court should have sentenced him under the drug quantity
guidelines as it did at his original sentencing.
We review de novo the district court’s legal conclusions regarding the scope
of its authority under 18 U.S.C. § 3582(c)(2). United States v. Moore, 541 F.3d
1323, 1326 (11th Cir. 2008). We may affirm for any reason supported by the
record. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008). A
sentencing court may make factual findings based on undisputed statements in the
PSI—that is, 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), cert. denied, 130 S.Ct. 2129 (2010); see United States v.
Hedges, 175 F.3d 1312, 1315 (11th Cir. 1999) (concluding that a defendant’s
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failure to object to conclusory statements in the PSI renders those statements
undisputed and permits the sentencing court to rely upon them without error
despite the absence of supporting evidence).
The rule of lenity applies if a sentencing guideline is ambiguous. United
States v. Jeter, 329 F.3d 1229, 1230 (11th Cir. 2003).1 The rule of lenity requires
a “grievous ambiguity” or “uncertainty in the statute.” United States v. Maupin,
520 F.3d 1304, 1307 (11th Cir. 2008). The simple existence of some statutory
ambiguity is insufficient to warrant application of this rule because most statutes
are ambiguous to some extent. Id.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
U.S.S.G. § 2D 1.1 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 July 2011, the Sentencing Commission
1
We have expressed doubt as to whether the rule of lenity should play any role in
interpreting the advisory sentencing guidelines after United States v. Booker, 543 U.S. 220, 259, 125
S.Ct. 738, 764, 160 L.Ed.2d 621 (2005). United States v. Wright, 607 F.3d 708, 716-19 (11th Cir.
2010) (Pryor, J., and Fay, J., concurring). However, “[w]hether the rule of lenity applies to advisory
Sentencing Guidelines is an open question.” Id. at 719 (emphasis in original).
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decided to make Parts A and C of Amendment 750 retroactive. 76 Fed.Reg.
41332-01 (July 13, 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
base level to determine what ultimate sentence it would have imposed.” Id. In
other words, 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; here, Amendment 750] 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.; see also Bravo, 203 F.3d at 781 (stating
that “all original sentencing determinations remain unchanged with the sole
exception of the guideline range that has been amended since the original
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sentencing” (emphasis in original)). Under the second step, the court must 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 U.S.S.G. § 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.
In Davis, we concluded that, in adopting the PSI’s undisputed facts that the
defendant was responsible for at least 8 kilograms of cocaine base, the sentencing
court had found that the defendant was responsible for more than 4.5 kilograms of
cocaine base, even though the court originally had not specified the exact quantity
in excess of 1.5 kilograms for which he was responsible. See Davis, 587 F.3d at
1302-04. Thus, the district court did not err when it denied the defendant’s
motions for sentence modification and recalculation of his sentence. Id. at 1304.
According to the amended Drug Quantity Table, the distribution of between
840 grams and less than 2.8 kilograms of cocaine base results in a base offense
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level of 34. U.S.S.G. § 2D1.1(c)(3). If a career offender’s offense level from the
table in § 4B1.1(b) is “greater than the offense level otherwise applicable,” per
Chapter 2, the offense level from § 4B1.1(b)’s table shall apply. U.S.S.G.
§ 4B1.1(b). The district court correctly refused to disregard Bostic’s undisputed
status as a career offender in ruling on his 18 U.S.C. § 3582(c)(2) motion per
Amendment 750. At his original sentencing, Bostic qualified as a career offender,
but was sentenced pursuant to U.S.S.G. § 2D1.1 only because the drug quantity
guidelines provided a higher base offense level (i.e., 38) than the career offender
enhanced level under U.S.S.G. § 4B1.1 (i.e., 37). However, if Amendment 750
had been in effect at the time of the original sentencing, Bostic would have been
sentenced as a career offender, a designation which remains unchanged, because
the enhanced offense level of 37 provided by § 4B1.1(b) would have been greater
than the amended base offense level of 34 provided by § 2D1.1(c)(3). In other
words, leaving all other original sentencing determinations unchanged – thus
leaving unchanged the decision to apply the higher of the two offense levels
(career offender or crack cocaine) – the career offender level of 37 was properly
applied by the district court.2
2
Contrary to Bostic’s argument, United States v. Moore, 546 F.3d 1323 (11th Cir.
2008), provides no support for his position. Although Moore involved a retroactive guideline which
lowered the base offense levels applicable to crack cocaine, the retroactive guideline there did not
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AFFIRMED.
trigger § 3582 because the original sentence had been based on the career offender guidelines and
the retroactive amendment did not lower the guideline range. The holding of that case says nothing
about this case. This case involves a career offender who – although he was originally sentenced on
the basis of the crack cocaine guideline because that guideline was originally higher than the career
offender guideline – remains a career offender and whose career offender guideline level, after
application of the retroactive guideline, is higher than the retroactively reduced crack cocaine
guideline. Similarly, United States v. Munn, 595 F.3d 183 (4th Cir. 2010), and United States v.
McGee, 553 F.3d 225 (2d. Cir 2009), are different from the instant case. In both cases, although the
defendant was a career offender, the district court at the original sentencing had departed downward
because the career offender offense level was deemed to overrepresent the defendant’s criminal
history and the ultimate sentence had been based on the crack cocaine guidelines. Although Bostic’s
original sentence was also based on the crack cocaine guidelines, that obtained only because it was
higher than the career offender guideline. Thus, the instant case is easily distinguishable from Munn
and McGee.
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