United States v. Jevon Scott , 441 F. App'x 635 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 23, 2011
No. 10-13152 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 8:05-cr-00061-RAL-EAJ-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEVON SCOTT,
a.k.a. Iceman,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 23, 2011)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
In 2005, Jevon Scott pled guilty to possession of 50 grams or more of crack
cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a), and the district
court sentenced him, as a career offender under U.S.S.G. § 4B1.1, to a prison term
of 180 months. In March 2010, Scott moved the district court to reduce his
sentence pursuant to 18 U.S.C. § 3582(c) based on Amendment 706 to the
Sentencing Guidelines, a retroactive amendment that reduced the drug quantity
thresholds and base offense levels for crack cocaine offenses. The court denied
his motion, and he appeals. We affirm.
Scott argues that he was sentenced within the Guidelines sentencing range
that would have been applicable under U.S.S.G. § 2D1.1, despite qualifying as a
career offender, and that he was therefore eligible for a sentencing reduction based
on § 3582(c)(2). He contends that under some circumstances courts have held that
defendants who qualified as career offenders, but who received a downward
departure from the Guidelines sentencing range, remain eligible for § 3582(c)(2)
relief. Since he received such departure and a sentence within the sentencing
range applicable if his offense level were fixed by § 2D1.1, he should be
resentenced.
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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. Moore, 541 F.3d 1323,
1326 (11th Cir. 2008) cert. denied, 129 S.Ct. 1601 (2009).
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). Amendment 706,
which has been made retroactive, amends the Drug Quantity Table in U.S.S.G.
§ 2D1.1(c) “to provide a two-level reduction in base offense levels for crack
cocaine offenses.” Moore, 541 F.3d at 1325. However, if a defendant is a career
offender, his base offense level is determined under the career offender guideline,
§ 4B1.1, and not the drug quantity guideline in § 2D1.1. See Moore, 541 F.3d at
1327-28. As such, Amendment 706 does not have the effect of lowering a career
offender’s applicable guideline sentencing range. Id. at 1328. Therefore, such a
defendant’s sentence is not based on a sentencing range that has subsequently
been lowered within the meaning of § 3582(c)(2), and the district courts are not
authorized to reduce a sentence under that statute. Id. at 1327-28, 1330.
Further, a § 3582(c)(2) modification “does not constitute a de novo
re-sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000). In
addressing whether a defendant is eligible for a sentence reduction, a district court
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is to consider only the effect of the applicable guideline amendment. Id. at
780-81. Thus, “all original sentencing determinations remain unchanged with the
sole exception of the guideline range that has been amended since the original
sentencing.” Id. at 781 (emphasis in original).
In this case, the district court properly denied Scott’s § 3582(c)(2) motion
because Amendment 706 did not lower Scott’s career offender sentencing range.
See Moore, 541 F.3d at 1330. Because Scott was sentenced as a career offender,
under § 4B1.1, he was not entitled to an Amendment 706 sentence reduction. See
Moore, 541 F.3d at 1327-28, 1330. Moreover, the district court correctly
abstained from considering whether Scott’s career offender designation was
erroneous because it was not permitted to do so within a § 3582(c)(2) proceeding.
See Bravo, 203 F.3d at 780-81. Finally, no exceptions to the general rule that
career offenders are ineligible for Amendment 706 reductions through § 3582,
apply here, even assuming that they could.
AFFIRMED.
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