United States v. Saderrick Jermaine Noird ( 2013 )

Case: 13-11745 Date Filed: 08/29/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11745
Non-Argument Calendar
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D.C. Docket No. 1:05-cr-00033-WLS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SADERRICK JERMAINE NOIRD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(August 29, 2013)
Before HULL, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
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Saderrick Jermaine Noird appeals the district court’s denial of his pro se
motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2), following his
conviction for conspiring to possess with intent to distribute more than 50 grams of
crack cocaine. At sentencing, the district court applied a 2-level substantial
assistance departure under U.S.S.G. § 5K1.1, and calculated Noird’s guideline
range to be 210 to 262 months’ imprisonment based on his career offender
designation. The district court sentenced him to 260 months’ imprisonment. The
government subsequently filed a Fed.R.Crim.P. 35(b) motion for a sentence
reduction on account of Noird’s substantial assistance in the prosecution of other
persons. The district court resentenced Noird to a term of 135 months’
imprisonment. On appeal, Noird argues that the rule of lenity dictates that
Amendment 750 is applicable to his sentence because he received a downward
departure for substantial assistance. After careful review, we affirm.
We review de novo the district court’s legal conclusions regarding the scope
of its authority under § 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326
(11th Cir. 2008). Amendment 750 revised the crack cocaine quantity tables to
conform to the Fair Sentencing Act of 2010, which amended certain statutory
minimum sentences for crack cocaine offenses.1
1
Amendment 750 was subsequently made retroactive by Amendment 759, thereby
permitting defendants to move for sentence reductions under § 3582(c)(2) in appropriate
circumstances.
2
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A district court may not reduce a defendant’s term of imprisonment that has
been imposed unless: (1) the defendant’s sentence was based upon a guideline
range that the Sentencing Commission subsequently lowered; (2) the district court
considers the 18 U.S.C. § 3553(a) factors; and (3) a reduction is consistent with
applicable policy statements issued by the Sentencing Commission. 18 U.S.C. §
3582(c)(2). When determining whether a reduction is warranted, a court should
determine the guideline range that would have applied had the relevant amendment
been in effect at the time of the defendant’s sentencing. U.S.S.G. § 1B1.10(b)(1).
A court must only substitute the relevant amendment into the district court’s
original guideline calculations, and leave all other sentencing decisions unaffected.
Id.; see United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000).
A reduction is not consistent with the Guidelines’ policy statement 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). A reduction under § 3582(c)(2) is
not authorized where the applicable amendment does not have the effect of
lowering the defendant’s applicable guideline range because of the operation of
another guideline. Moore, 541 F.3d at 1327-28. This includes situations in which
the defendant’s applicable guideline range is calculated through the application of
the career offender guideline. Id. at 1328.
3
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In Moore, we explained that a district court had discretion to resentence a
career offender under § 3582(c)(2) where he had previously received a downward
departure under U.S.S.G. § 4A1.3 because the seriousness of his criminal history
was substantially overrepresented by his career offender designation. Id. at 1329
30. The rationale behind such authority in that situation was that the court was
reducing the appellant’s offense level to what would be in effect absent the career
offender guideline. Id. at 1329. In contrast, the appellants in Moore were
ineligible for sentence reductions because their respective departures were based
on substantial assistance and diminished capacity. Id. at 1330.
In this case, Amendment 750 did not have the effect of lowering Noird’s
applicable guideline range under § 4B1.1(b) as a career offender. See Moore, 541
F.3d at 1327-28. Under § 4B1.1(b), Noird’s applicable guideline range remains
the same as it was at his original sentencing. Further, neither his § 5K1.1 departure
nor Rule 35(b) reduction rendered him eligible for relief under § 3582(c)(2). See
Moore, 541 F.3d at 1329-30. Accordingly, we affirm the denial of his motion for a
sentence reduction.
AFFIRMED.
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