United States v. Aaron Lee Bostic , 386 F. App'x 877 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 9, 2010
No. 09-15318 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00073-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON LEE BOSTIC,
a.k.a. Aaron Bostic,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 9, 2010)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Aaron Lee Bostic, proceeding pro se, appeals the district court’s denial of
his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). On
appeal, Bostic argues that the district court erred in basing its denial of his motion
on the mistaken belief that he had been sentenced as a career offender. Because he
was sentenced using the higher offense level determined by the drug quantity,
Bostic argues, he was eligible for a reduction pursuant to Amendment 706 to the
Sentencing Guidelines.
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. Jones, 548 F.3d 1366,
1368 (11th Cir. 2008). A district court may modify a term of imprisonment based
on a guideline imprisonment range that was subsequently lowered by the
Sentencing Commission. 18 U.S.C. § 3582(c)(2).
Amendment 706, which amended the Drug Quantity Table in U.S.S.G. §
2D1.1(c), provides a two-level reduction in base offense levels for certain crack
cocaine offenses. United States v. Moore, 541 F.3d 1323, 1325 (11th Cir. 2008).
Specific to this case, a pre-amendment base offense level of 38 is now 36 for
defendants who are responsible for at least 1.5 kilograms but less than 4.5
kilograms of crack cocaine. Jones, 548 F.3d at 1369. However, Amendment 706
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does not apply to defendants responsible for 4.5 kilograms or more.1 Id.
Additionally, defendants sentenced as career offenders under U.S.S.G. § 4B1.1 are
ineligible for a reduced sentence under Amendment 706. Moore, 541 F.3d at 1330.
Here, the district court erred in denying Bostic’s motion to modify his
sentence based on its finding that Bostic was sentenced as a career offender. At
Bostic’s original sentencing hearing, the district court calculated the offense level
from both the career offender guideline and the drug quantity guideline and
concluded that the career offender range was lower than the drug quantity range.
See U.S.S.G. § 4B1.1(b) (noting that the career-offender guideline applies if the
offense level under § 4B1.1 “is greater than the offense level otherwise
applicable”). Furthermore, the court adopted the pre-sentencing investigation
report which indicated that the career offender enhanced offense level was not
applied because it was lower than the drug quantity offense level. See id.
Accordingly, we vacate the district court’s order and remand the case for further
consideration.
VACATED AND REMANDED.
1
The government’s sole argument on appeal is that Bostic was responsible for 15
kilograms of crack cocaine and therefore Amendment 706 is inapplicable to his case. However,
the record below clearly indicates that Bostic is responsible for 1.5 kilograms of crack cocaine,
an amount within the required range of Amendment 706.
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