United States v. James Lawton, Jr. , 477 F. App'x 611 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-15903 MAY 21, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 9:02-cr-80051-DTKH-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JAMES LAWTON, JR.,
a.k.a. Jit,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 21, 2012)
Before DUBINA, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant James Lawton, Jr., through counsel, appeals the district court’s
denial of his motion to reduce sentence, filed pursuant to 18 U.S.C. § 3582(c)(2).
Lawton pled guilty to conspiracy to possess with intent to distribute over 50 grams
of cocaine base, in violation of 21 U.S.C. § 846, and carrying a firearm in relation
to a drug-trafficking offense, in violation of 18 U.S.C. § 924(c). Lawton originally
had been sentenced to 156 months’ imprisonment for the drug offense and a
consecutive 60-month term for the firearm offense, with this sentence including a
79-month downward departure based on the government’s substantial-assistance
motion. In 2008, Lawton filed his first § 3582(c)(2) motion pursuant to
Amendments 706 and 713 to the Sentencing Guidelines, which the district court
granted. The district court applied a percentage-based approach for calculating the
extent of the previous downward departure, and resentenced Lawton to 125
months’ imprisonment for the drug offense, which was below the amended range
of 188 to 235 months. Lawton subsequently filed a second § 3582(c)(2) motion
pursuant to Amendment 750, which the district court denied because it did not
lower his guideline range further. On appeal, Lawton asserts that, although
Amendment 750 does not reduce his guideline range, changes to U.S.S.G.
§ 1B1.10(b)(2)(B) support a reduction in his sentence because he should receive a
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flat reduction of the original 79-month amount of his downward departure, not just
a percentage of the departure from the guideline range.
“[W]e review de novo the district court’s legal conclusions regarding the
scope of its authority under the Sentencing Guidelines.” United States v. Moore,
541 F.3d 1323, 1326 (11th Cir. 2008) (internal quotation marks omitted). Part A
of Amendment 750 amended § 2D1.1 by revising the Drug Quantity Table in
§ 2D1.1(c), and reducing offense levels associated with various amounts of crack
cocaine. U.S.S.G. App. C, Amend. 750, Pt. A, cross referencing U.S.S.G. App. C,
Amend. 748 (2011). Amendment 750 became effective on November 1, 2011.
U.S.S.G. App. C, Amend. 750.
A district court may modify a defendant’s previously imposed imprisonment
sentence pursuant to § 3582(c)(2) if the relevant amendment is listed in U.S.S.G.
§ 1B1.10(c) and the reduction is consistent with the Guidelines’ policy statement.
U.S.S.G. § 1B1.10(a)(1). Parts A and C of Amendment 750 to the Guidelines may
serve as the basis for a sentence reduction. Id. § 1B1.10(c). Pursuant to § 1B1.10,
the applicable policy statements provide that a reduction in the imprisonment term
is not authorized if the amendment “does not have the effect of lowering the
defendant’s applicable guideline range.” Id. § 1B1.10(a)(2)(B).
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The 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, “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). All of the other guideline application decisions made during the
original sentencing proceeding remain unaffected. See Bravo, 203 F.3d at 780.
Under the second step, the court must decide whether to retain the original
sentence or to resentence the defendant under the amended guideline range. Id. at
781.
The district court is required to apply the version of § 1B1.10 that is in
effect at the time that it rules on the § 3582 motion. U.S.S.G. § 1B1.10, comment.
(n.6) (Nov. 1, 2011). Amendment 759 made changes to § 1B1.10, which became
effective on November 1, 2011, and would apply to any § 3582(c)(2) motion
decided on or after that date. U.S.S.G. App. C, Amend. 759. Section 1B1.10 now
provides the following:
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If the term of imprisonment imposed was less than the term of
imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing pursuant to a government motion
to reflect the defendant’s substantial assistance to authorities, a
reduction comparably less than the amended guideline range
determined under subdivision (1) of this subsection may be
appropriate.
U.S.S.G. § 1B1.10(b)(2)(B). The commentary regarding this provision notes that
the district court is not limited by the guideline range if the defendant’s sentence
was reduced pursuant to a government motion for substantial assistance. Id.
§ 1B1.10, comment. (n.3). However, in describing what a “comparably less”
sentence would be, the commentary adopts a percentage-based approach, noting
that, if the original sentence was reduced by 20 percent, then the amended
sentence also may be reduced by 20 percent. Id.
“[A] party seeking to raise a claim or issue on appeal must plainly and
prominently so indicate. Otherwise, the issue—even if properly preserved at
trial—will be considered abandoned.” United States v. Jernigan, 341 F.3d 1273,
1283 n.8 (11th Cir. 2003).
As an initial matter, because Lawton does not challenge the district court’s
determination that Amendment 750 did not reduce his guideline range, he has
abandoned any challenge to this finding. Because Amendment 750 did not lower
Lawton’s guideline range, a reduction is not authorized. In addition, Lawton’s
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argument that the changes to § 1B1.10(b)(2)(B) create ambiguity on whether the
district court should have reduced his sentence by the original 79-month departure
fails because the commentary to that guideline specifically supports the district
court’s percentage-based approach in granting his prior § 3582(c)(2) motion.
Therefore, we conclude that the district court did not err in determining that
Lawton was ineligible for a reduced sentence because Amendment 750 did not
change his guideline range.
AFFIRMED.
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