United States v. Byron Keith Thomas ( 2012 )


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  •                                                         [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    APRIL 16, 2012
    No. 11-15896
    JOHN LEY
    Non-Argument Calendar
    CLERK
    ________________________
    D.C. Docket No. 9:98-cr-08105-DTKH-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    BYRON KEITH THOMAS,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (April 16, 2012)
    Before CARNES, HULL and WILSON, Circuit Judges.
    PER CURIAM:
    Byron Keith Thomas, a federal prisoner convicted of two crack cocaine
    offenses and a firearm offense, appeals the denial of his 
    18 U.S.C. § 3582
    (c)(2)
    motion for a sentence reduction. After review, we affirm.1
    Under § 3582(c)(2), a district court has the authority to modify a
    defendant’s term of imprisonment if the defendant’s sentence was “based on a
    sentencing range that has subsequently been lowered by the Sentencing
    Commission pursuant to 28 U.S.C. [§] 994(o).” 
    18 U.S.C. § 3582
    (c)(2); see also
    U.S.S.G. § 1B1.10(a)(1). However, if the retroactively applicable amendment to
    the guidelines “reduce[d] a defendant’s base offense level, but does not alter the
    sentencing range upon which his or her sentence was based, § 3582(c)(2) does not
    authorize a reduction in sentence.” United States v. Moore, 
    541 F.3d 1323
    , 1330
    (11th Cir. 2008); see also U.S.S.G. § 1B1.10(a)(2)(B).
    A sentence reduction is not authorized if the amendment does not lower a
    defendant’s applicable guidelines range “because of the operation of another
    guideline or statutory provision.” U.S.S.G. § 1B1.10 cmt. n.1(A). Thus, when
    defendant’s applicable guidelines range is determined by his status as an armed
    career criminal, pursuant to U.S.S.G. § 4B1.4, and not by the amount of crack
    1
    “We review de novo a district court’s conclusions about the scope of its legal authority
    under 
    18 U.S.C. § 3582
    (c)(2).” United States v. James, 
    548 F.3d 983
    , 984 (11th Cir. 2008).
    2
    cocaine involved in his offense, pursuant to U.S.S.G. § 2D1.1(c), the defendant is
    not eligible for § 3582(c)(2) relief based on recent amendments to the base offense
    levels in § 2D1.1(c) for crack cocaine offenses. See, e.g., United States v.
    Thomas, 
    545 F.3d 1300
    , 1301-02 (11th Cir. 2008) (involving § 3582(c)(2) motion
    based on Amendment 706).
    Here, the district court did not err in denying Thomas’s § 3582(c)(2)
    motion. Thomas’s motion was based on Amendment 750, which changed the drug
    quantity tables in U.S.S.G. § 2D1.1(c) to conform to the Fair Sentencing Act of
    2010. See U.S.S.G. app. C, amends. 750, 759 (making Amendment 750
    retroactive); U.S.S.G. § 1B1.10(c) (listing Amendment 750 as an amendment for
    which a defendant may file a § 3582(c)(2) motion). Because Thomas was
    designated an armed career criminal at his original sentencing, his offense level
    was based on U.S.S.G. § 4B1.4, not on the drug quantity tables in U.S.S.G.
    § 2D1.1(c). See Thomas, 
    545 F.3d at 1301
    .2 Thus, Amendment 750 had no effect
    on Thomas’s ultimate sentencing range.
    2
    Thomas involved a prior § 3582(c)(2) motion filed by the same defendant, Byron Keith
    Thomas, but brought pursuant to Amendment 706, a 2007 amendment that lowered the offense
    levels in U.S.S.G. § 2D1.1(c) for crack cocaine offenses. In Thomas, we affirmed the district
    court’s denial of Thomas’s § 3582(c)(2) motion because Thomas was sentenced as an armed
    career criminal under U.S.S.G. § 4B1.4. 
    545 F.3d at 1301
    . Thomas concedes that our earlier
    Thomas opinion controls, but states that he brings his challenge to preserve it for possible future
    appeals.
    3
    We find no merit to Thomas’s argument that he is eligible for § 3582(c)(2)
    relief because U.S.S.G. § 4B1.4’s armed career criminal enhancement applied only
    to his firearm conviction (Count 1) and not to his two crack cocaine convictions
    (Counts 2 and 3). At sentencing, the district court grouped all three counts for
    purposes of calculating Thomas’s offense level, pursuant to U.S.S.G. § 3D1.2(c).
    The court then determined that the applicable offense level was 34, pursuant to
    U.S.S.G. § 4B1.4(b)(3)(A). Thus, Thomas’s offense level for all three counts was
    based on § 4B1.4(b)(3)(A), which was not changed by Amendment 750.
    For these reasons, the district court correctly concluded that Thomas was
    ineligible for a § 3582(c)(2) sentence reduction.
    AFFIRMED.
    4
    

Document Info

Docket Number: 11-15896

Judges: Carnes, Hull, Per Curiam, Wilson

Filed Date: 4/16/2012

Precedential Status: Non-Precedential

Modified Date: 11/5/2024