United States v. Ike Florence, Jr. , 503 F. App'x 796 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 12-11630; 12-11898
Non-Argument Calendar
________________________
D.C. Docket No. 3:93-cr-00201-HES-JBT-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellee,
versus
IKE FLORENCE, JR.,
a.k.a. Big Ike,
llllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(January 10, 2013)
Before DUBINA, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
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Appellant Ike Florence, Jr., represented by counsel, appeals the district
court’s refusal to further reduce his sentence when it granted, in part, and denied,
in part, his request for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 750 to the Sentencing Guidelines.1 He argues that the court
improperly applied the career offender offense level provision and instead, should
have further reduced his sentence.2
In a § 3582(c)(2) proceeding, 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. James, 548 F.3d 983, 984 (11th Cir. 2008). “Once it is
established that 18 U.S.C. § 3582 applies, a district court’s decision to grant or
deny a sentence reduction is reviewed only for abuse of discretion.” Id. at 984 n.1.
A district court abuses its discretion in a § 3582(c)(2) proceeding if it fails to
apply the proper legal standard or to follow proper procedures in making its
determination. United States v. Jules, 595 F.3d 1239, 1241-42 (11th Cir. 2010)
(internal quotation marks omitted). We may affirm the district court’s decision on
1
Florence designated only the denial of his 2011 § 3582(c)(2) motion in his notice of
appeal, so we lack jurisdiction to consider the merits of any of his earlier § 3582(c)(2) motions.
See Fed.R.App.P. 3.1(a), (c)(1)(B).
2
By failing to present argument regarding his motion for reconsideration in his initial
brief, Florence has abandoned any challenge in that respect on appeal because a party seeking to
raise a claim or issue on appeal must raise it “plainly and prominently” or the issue is deemed
abandoned. United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir. 2003).
2
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any basis supported by the record. United States v. Acuna-Reyna, 677 F.3d 1282,
1284 (11th Cir.), cert. denied, 133 S. Ct. 342 (2012).
A district court may not modify a term of imprisonment unless a defendant
was sentenced based on a sentencing range that has subsequently been lowered by
the Sentencing Commission. See 18 U.S.C. § 3582(c)(2). Parts A and C of
Amendment 750 to the Guidelines may serve as the basis for a sentence reduction.
U.S.S.G. § 1B1.10(c). A proceeding under § 3582(c)(2) and § 1B1.10 does not
constitute a full resentencing, and the district court must maintain all original
sentencing determinations, with the sole exception of applying the relevant
amended guideline range. United States v. Bravo, 203 F.3d 778, 781 (11th Cir.
2000). The policy statement for this type of sentence reduction provides that “[i]n
no event may the reduced term of imprisonment be less than the term of
imprisonment the defendant has already served.” U.S.S.G. § 1B1.10(b)(2)(C).
District courts must engage in a two-part analysis when considering
§ 3582(c)(2) motions. Bravo, 203 F.3d at 780. First, a court must recalculate the
applicable guideline range, using the amended guideline provisions. United States
v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009). Second, the court then must
decide, in its discretion, whether to retain the existing sentence or impose a
reduced sentence, within the new range, considering the § 3553(a) factors as well
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as public safety. Id. (citing U.S.S.G. § 1B1.10, cmt. 1(B)).
At the latter stage, “a district court commits no reversible error by failing to
articulate specifically the applicability—if any—of each of the section 3553(a)
factors, as long as the record demonstrates that the pertinent factors were taken
into account by the district court.” United States v. Eggersdorf, 126 F.3d 1318,
1322 (11th Cir. 1997). In Eggersdorf, we found sufficient the district court’s
order stating that it had reviewed the § 3582(c)(2) motion, the government’s
response in opposition, the record, and was “otherwise duly advised.” Id. at 1322-
23. We noted that the motion and response had discussed matters that were
relevant to the § 3553(a) factors. Id. at 1323.
While the two steps are required, the court is not required to reduce the
defendant’s sentence at all, even if the defendant is eligible under § 3582(c)(2),
because that sentence determination is discretionary. United States v. Vautier,
144 F.3d 756, 760 (11th Cir. 1998) (“The grant of authority to the district court to
reduce a term of imprisonment [under 3582(c)(2)] is unambiguously
discretionary.”)
Amendment 750 to the Sentencing Guidelines, which was made
retroactively applicable by Amendment 759, became effective on November 1,
2011. This amendment made permanent the temporary emergency
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Amendment 748, which revised the crack cocaine quantity tables listed in
U.S.S.G. § 2D1.1(c), pursuant to the Fair Sentencing Act of 2010. See U.S.S.G.
App. C, Amend. 750, Reason for Amend. and U.S.S.G. App. C, Amend. 759. As a
result of these amendments, under § 2D1.1(c), after incorporating the
enhancements and reductions that Florence received, a total offense level of 34 is
assigned in cases involving the marijuana equivalent of the 700 grams of powder
cocaine and 700 grams of crack cocaine for which he was convicted—which falls
into the category of at least 1,000 kilograms but less than 3,000 kilograms of
marijuana. See U.S.S.G. § 2D1.1(c)(4) (2011). This represents a decrease of two
levels from 2008, when the court reduced Florence’s sentence under § 3582(c)(2).
The Federal Sentencing Guidelines provide enhanced punishment for
defendants who, at the time of their sentencing for a violent felony, have two or
more prior felony convictions for a crime of violence or a controlled substance
offense. U.S.S.G. § 4B1.1. Defendants who fall within that category are
considered “career offenders,” assigned a category VI criminal background, and
are subject to offense-level enhancements determined by the severity of the current
offense. Id. The current career offender base offense level for convictions
carrying a statutory maximum of life imprisonment is 37. U.S.S.G. § 4B1.1(b)(1).
In United States v. Moore, 541 F.3d 1323, we held that defendants
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sentenced as career offenders under § 4B1.1 were not entitled to § 3582(c)(2)
sentence reductions because calculation of their guideline ranges did not involve
the base offense levels under § 2D1.1. Id. at 1327-28. In Freeman v. United
States, 564 U.S. __, 131 S. Ct. 2685, 180 L. Ed. 2d. 519 (2011), which did not
address career offenders, the U.S. Supreme Court concluded, in a plurality
opinion, that when a district court accepted a Rule 11(c)(1)(C) plea based on the
sentencing guidelines, the defendant was eligible to request a sentence reduction
pursuant to § 3582(c)(2) if a retroactive amendment later lowered the applicable
guideline range. Id. at __, 131 S. Ct. at 2695. See also Marks v. United States,
430 U.S. 188, 193, 97 S. Ct. 990, 993, 51 L. Ed. 2d 260 (1977) (finding that, when
a Supreme Court decision lacks a majority opinion, “the holding of the Court may
be viewed as the position taken by those Members who concurred in the
judgments on the narrowest grounds”) (quoting Gregg v. Georgia, 428 U.S. 153,
169 n. 15, 96 S. Ct. 2909, 2923 (1976)). We held in United States v. Lawson, 686
F.3d 1317 (11th Cir.), cert. denied, 133 S. Ct. 568 (2012), that Moore remains
binding precedent in this Circuit because it was not overruled by Freeman, as that
case did not address defendants whose total offense levels were calculated
according to the career offender provision, so Freeman was not “clearly on point”
with the issue in Moore. See id. at 1320-21.
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Even if we assume, arguendo, that Florence was eligible for relief here, we
conclude that his appeal is meritless. Because the decision whether to reduce an
eligible defendant’s sentence under § 3582 is entirely discretionary, and there is no
indication that the court abused its discretion, Florence’s challenge to the extent of
the reduction that he received fails. First, the record shows that the court
recalculated his base offense level, apparently relying on the probation officer and
the government’s representation that the correct guidelines provision was now the
career offender3 provision because it yielded a higher base offense level than the
amended § 2D1.1, then incorporated the relevant enhancements and reductions, to
reach an amended offense level of 35. The court also properly concluded that
Florence’s amended guideline range was 292 to 365 months, which was lower
than his pre-amendment range of 324 to 405 months, so he was eligible for a
reduction under § 3582(c)(2). 2011 Federal Sentencing Guidelines, Sentencing
Table; see Williams, 557 F.3d at 1256.
Second, even if a defendant is eligible for a reduction under § 3582, the
court’s decision regarding whether to reduce his sentence at all is entirely
3
The government now contends that Florence was sentenced as a career offender and
notes that career offenders are not eligible for § 3582(c)(2) reductions. We find it unnecessary to
address this contention, however, in light of our present disposition and the government’s failure
to cross-appeal.
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discretionary. James, 548 F.3d at 984 n.1; Vautier, 144 F.3d at 760. There is no
indication here that the court acted unreasonably or abused its discretion by failing
to apply the proper legal standard or to follow the proper procedures. Jules, 595
F.3d 1239, 1241-42. Although the court did not expressly discuss the § 3553(a)
factors or public safety, it mentioned both parties’ arguments and the probation
office’s supplemental memo, all of which discussed various § 3553(a) factors.
This satisfies step two of the required § 3582(c)(2) analysis. See Eggersdorf, 126
F.3d at 1322.
While Florence argues that the court erred by not reducing his sentence to
less than 292 months or time served, the court could not have sentenced him to
any less than 292 months, as that was the bottom of the amended guideline range.
We have held that a court may not reduce a defendant’s sentence below the
amended range unless the defendant has received the benefit of a substantial
assistance motion filed by the government, which Florence did not. United States
v. Liberse, 688 F.3d 1198 (11th Cir. 2012).
For the aforementioned reasons, we affirm the district court’s order refusing
to further reduce Florence’s sentence.
AFFIRMED.
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