United States v. Henry Lee White , 163 F. App'x 834 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11965 JANUARY 20, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 98-00106-CR-18JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY LEE WHITE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 20, 2006)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Appellant Henry Lee White appeals pro se the district court’s denial of his
18 U.S.C. § 3582(c)(2) motion to modify or reduce his term of imprisonment. In
1998, White was convicted of possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1), and using and carrying a firearm during and in
relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). He now
argues that he is entitled to relief based on the change made by Amendment 591 to
§ 1B1.1(a) of the United States Sentencing Guidelines requiring that the applicable
guideline section be determined by the offense of conviction. He claims that
because no drug quantity was found by the jury in his case, his base offense level
under the career offender provision, U.S.S.G. § 4B1.1, should be lowered because
he should have been sentenced under the provision of § 841 which carries a 20-
year statutory maximum.1
We review a district court’s decision whether to reduce a defendant’s
sentence pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion. United States
v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003).
“Under 18 U.S.C. §3582(c)(2), a district court has discretion to reduce the
term of imprisonment of an already incarcerated defendant when that defendant
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The government asks us to hold that discretionary rulings made under § 3582(c)(2) are
unreviewable pursuant to 18 U.S.C. § 3742(a), and to dismiss White’s appeal for lack of jurisdiction.
We refuse to hold as the government urges. We have jurisdiction over White’s appeal because it
is a final order denying White’s motion for reduction of sentence. 28 U.S.C. § 1291. We have also
routinely handled § 3582 appeals. See, e.g., United States v. Vautier, 144 F.3d 756 (11th Cir. 1998).
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was sentenced based on a sentencing range that was subsequently lowered by the
Sentencing Commission pursuant to 28 U.S.C. § 994(o).” United States v. Bravo,
203 F.3d 778, 780 (11th Cir. 2000). However, § 3582(c) does not grant the district
court jurisdiction to reconsider all original sentencing determinations. Id. at 781-
82. Pursuant to § 3582(c), the district court may not modify an imposed term of
imprisonment upon motion of the defendant unless the defendant’s sentencing
range was subsequently lowered by an amendment to the Sentencing Guidelines.
Id.
Amendment 591 became effective on November 1, 2000, and is retroactively
applicable. U.S.S.G. § 1B1.10(c). Under the amendment, U.S.S.G. § 1B1.1(a)
instructs the district court to “determine, pursuant to § 1B1.2 (Applicable
Guidelines), the offense guideline section from Chapter Two (Offense Conduct)
applicable to the offense of conviction.” U.S.S.G. App. C, Amend. 591.
Furthermore, Amendment 591 changed U.S.S.G. § 1B1.2(a), instructing the
sentencing court to “[r]efer to the Statutory Index (Appendix A) to determine the
Chapter Two offense guideline, referenced in the Statutory Index for the offense of
conviction. . . . For statutory provisions not listed in the Statutory Index, use the
most analogous guideline.” Id. (amending U.S.S.G. § 1B1.2(a)). The amendment
was designed to rectify confusion among circuits as to whether the sentencing
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court should apply a guideline section referenced in the Statutory Index, rather than
selecting the guideline section based on the defendant’s actual conduct, even if
uncharged. See U.S.S.G. App. C, Amend. 591, “Reason for Amendment.” The
Statutory Index indicates that U.S.S.G. § 2D1.1 is the applicable guideline section
for § 841(a) offenses. U.S.S.G. App. A.
Amendment 591, however, only applies to the selection of the relevant
offense guideline, not the selection of a base offense level within the applicable
offense guideline; it “does not constrain the use of judicially found facts to select a
base offense level within the relevant guideline.” United States v. Moreno, 421
F.3d 1217, 1219-20 (11th Cir. 2005).
After reviewing the record and reading the parties’ briefs, we conclude that
the district court did not abuse its discretion in denying White’s § 3582 motion.2
White’s base offense level was initially determined by U.S.S.G. § 2D1.1, which is
the applicable guideline section for § 841(a) offenses. U.S.S.G. App. A. As the
Statutory Index contains an applicable guideline section for White’s offense of
conviction, there is nothing in the text of Amendment 591 that impacts his
2
The district court denied White’s motion in an endorsed order. We have, in the past, noted
our disapproval of the district court’s use of endorsed orders. See In re Ford Motor Co., 345 F.3d
1315, 1317 (11th Cir. 2003) (admonishing district court not to enter summary orders and to provide
“a meaningful explanation of its decision[s]”). However, the law, record, and briefs of the parties
allow for meaningful appellate review in this case despite the endorsed order.
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sentence. White argues that because the drug quantity in his case was not
determined by a jury, he should have been sentenced pursuant to a different offense
of conviction and, therefore, received a lower base offense level. However,
Moreno is directly on point, and clearly rejected such an argument. Moreno, 421
F.3d at 1220. Therefore, this portion of White’s argument is without merit.
White was sentenced as a career offender pursuant to U.S.S.G. § 4B1.1.
Under § 4B1.1, if the offense statutory maximum is life, the offense level is 37
while if the offense statutory maximum is 20 years, the offense level is 32. Even
so, §4B1.1 does not appear in the Statutory Index. (See generally U.S.S.G. App.
A). Moreover, the selection of § 4B1.1 was not based upon actual conduct which
was uncharged, but upon White’s criminal history.
Even if, as White argues, he should have been sentenced under the provision
of § 841 which carries a 20-year statutory maximum, Amendment 591 would only
affect selection of the proper base offense level guideline, not the selection of the
correct base offense level within that guideline. Moreno, 421 F.3d at 1219-20.
Moreover, even if the district court used the wrong statutory maximum in
computing White’s base offense level under § 4B1.1, Amendment 591 does not
address that error, but only addresses the improper consideration of actual, but
uncharged, conduct in selecting the applicable guideline. Thus, Amendment 591
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does not apply to the instant case, and provides no basis for a sentence
modification pursuant to § 3582.
Because Amendment 591 had no impact on White’s sentence, we hold that
the district court did not abuse its discretion in denying his § 3582 motion.
Accordingly, we affirm the district court’s order denying White’s motion to
modify or reduce his term of imprisonment.
AFFIRMED.
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