United States v. Juan Miguel Diez ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 27, 2005
No. 05-12489
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 97-00001-CR-ORL-19-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MIGUEL DIEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 27, 2005)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
In this case, appellant was convicted of conspiracy to possess with intent to
distribute marijuana and cocaine, in violation of 21 U.S.C. § 846. The district
court, adopting the presentence report’s Sentencing Guidelines determination, set
appellant’s base offense level at 43 after applying the cross-reference in U.S.S.G. §
2D1.1(d)(1), which required the court to use U.S.S.G. § 2A1.1 because a victim
was killed under circumstances that would constitute murder. Appellant’s criminal
history category was II, which, at offense level 43, called for a life sentence of
imprisonment. The court sentenced appellant to life imprisonment (after
overruling appellant’s objection to the court finding the relevant murders by a
preponderance of the evidence).
Appellant appealed his conviction. We affirmed. United States v.
Ridgeway, No. 97-2927 (11th Cir. July 22,1998),
On April 20, 2005, appellant moved the district court to modify his sentence
pursuant to 18 U.S.C. § 3582(c)(2), contending that he was entitled to have his
sentence reduced under Amendment 591 to the United States Sentencing
Guidelines, which provide that when the court determines the guideline applicable
to the offense conduct, the court must refer to the guideline referenced in the
statutory index for the offense of conviction. He argued that he had been convicted
of a 18 U.S.C. § 846 conspiracy but sentenced pursuant to the guideline applicable
to murder in the first degree. The court denied the motion without explanation, and
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he now appeals.
Pursuant to 18 U.S.C. § 3582(c)(2), upon the motion of a defendant
sentenced to a term of imprisonment based on a sentence range that was
subsequently lowered by the Sentencing Commission, “the court may reduce the
term of imprisonment, after considering the factors set forth in section 3553(a) to
the extent that they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” The Sentencing
Guidelines explicitly state that Amendment 591 can be retroactively applied upon a
motion under 18 U.S.C. § 3582(c)(2). U.S.S.G. §§ 1B1.10(a),(c). In relevant part,
“Amendment 591 requires that the initial selection of the offense guideline be
based only on the statute or offense of conviction rather than on judicial findings of
actual conduct not made by the jury.” United States v. Moreno, 421 F.3d 1217,
1219-20 (11th Cir. 2005) (holding that Amendment 591 only applies to the
selection of the applicable offense guideline, not the selection of the appropriate
base offense level within that guideline); U.S.S.G. App. C, amend. 591 (2003).
According to Appendix A of the Sentencing Guidelines, § 2D1.1 is an
appropriate guideline to apply when a defendant has been convicted of an offense
covered under 21 U.S.C. 846. Section 2D1.1(d)(1) states that “[i]f a victim was
killed under circumstances that would constitute murder under 18 U.S.C. § 1111 . .
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., apply §2A1.1 (First Degree Murder).” Section 2A1.1 provides a base offense
level of 43.
Because the district court chose the correct base offense guideline, and
Amendment 591 does not prevent the court from using offense conduct other than
the offense of conviction to apply a cross-reference within the applicable guideline
for the offense of conviction, the court did not abuse its discretion in denying
appellant’s motion to modify his sentence.
AFFIRMED.
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