Case: 20-12175 Date Filed: 09/14/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12175
Non-Argument Calendar
________________________
D.C. Docket No. 4:08-cr-00038-RH-GRJ-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN LAMAR RATLIFF,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 14, 2020)
Before WILSON, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Kevin Ratliff, a federal prisoner proceeding pro se, appeals the district court’s
denial of his motion to reduce sentence under 18 U.S.C. § 3582(c)(2). The district
Case: 20-12175 Date Filed: 09/14/2020 Page: 2 of 6
court concluded that Ratliff was ineligible for a sentence reduction because, as his
guideline range was based on his career offender enhancement, Amendment 782 did
not lower his guideline range. The government has moved for summary affirmance
and to stay the briefing schedule.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969). 1
When appropriate, we will review de novo the district court’s legal
conclusions about the scope of its authority under 18 U.S.C. § 3582(c)(2). United
States v. Lawson,
686 F.3d 1317, 1319 (11th Cir. 2012). However, if § 3582(c)(2)
applies, we review the district court’s decision to grant or deny a sentence reduction
only for abuse of discretion. United States v. Caraballo-Martinez,
866 F.3d 1233,
1238 (11th Cir. 2017). Claims not briefed on appeal are deemed abandoned and
issues raised for the first time on appeal are deemed waived. Access Now, Inc. v.
Sw. Airlines Co.,
385 F.3d 1324, 1330-31 (11th Cir. 2004).
1
We are bound by cases decided by the former Fifth Circuit before October 1, 1981.
Bonner v. City of Pritchard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
2
Case: 20-12175 Date Filed: 09/14/2020 Page: 3 of 6
A district court may modify a defendant’s term of imprisonment if the
defendant was sentenced based on a sentencing range that has subsequently been
lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). A defendant is
eligible for a sentence reduction under § 3582(c)(2) when an amendment listed in
U.S.S.G. § 1B1.10(d) lowers his guideline range as calculated by the sentencing
court. U.S.S.G. § 1B1.10 comment. (n.1(A)). Under § 3582(c)(2), a district court
must first recalculate the defendant’s sentence under the amended guideline range
and, in doing so, “[a]ll other guideline application decisions made during the original
sentencing remain intact.” United States v. Bravo,
203 F.3d 778, 780 (11th Cir.
2000).
A district court is not authorized to reduce a defendant’s sentence under
§ 3582(c)(2) where a retroactively applicable guidelines amendment reduces his
base offense level but does not alter the guideline range upon which his sentence
was based. United States v. Moore,
541 F.3d 1323, 1330 (11th Cir. 2008).
Specifically, when a drug offender is sentenced under the career offender guideline
in § 4B1.1, his guideline range is calculated based on § 4B1.1, not § 2D1.1.
Lawson,
686 F.3d at 1321. Because an amendment to § 2D1.1 does not affect a career
offender’s guideline range, he is ineligible for a sentence reduction under
§ 3582(c)(2) based on an amendment to that guideline. See
id. (affirming the denial
3
Case: 20-12175 Date Filed: 09/14/2020 Page: 4 of 6
of a § 3582(c)(2) motion based on Amendment 750 to the Sentencing Guidelines,
U.S.S.G. App. C., Amend. 750 (2011)).
Section 2D1.1(c) of the Sentencing Guidelines provides base offense levels
for drug offenses based on the type and quantity of drug involved. See U.S.S.G.
§ 2D1.1(c). Amendment 782 to the Sentencing Guidelines altered the base offense
levels applicable to certain drug offenses. See U.S.S.G. App. C, Amend. 782 (2014).
As an initial matter, Ratliff has abandoned any challenge to the district court’s
denial of his § 3582(c)(2) motion based on Amendments 706 and 750 2 by failing to
present any arguments as to those amendments on appeal. See Access Now,
Inc.,
385 F.3d at 1330-31. Ratliff also waived our consideration of his Alleyne v. United
States 3 and Molina-Martinez v. United States 4 argument by raising it for the first
time on appeal. See Access Now,
Inc., 385 F.3d at 1330-31. And we may not
consider the arguments based on Sessions v. Dimaya 5 and United States v. Davis6
that Ratliff raised for the first time in response to the government’s motion to
dismiss. See Access Now,
Inc., 385 F.3d at 1330-31.
2
U.S.S.G. App. C, Amend. 706, 750.
3
570 U.S. 99 (2013).
4
136 S. Ct. 1338 (2016).
5
138 S. Ct. 1204 (2018).
6
139 S. Ct. 2319 (2019).
4
Case: 20-12175 Date Filed: 09/14/2020 Page: 5 of 6
Even if we considered these arguments, however, they are without merit.
Section 3582(c)(2) authorizes only a limited resentencing based on an amendment
to the applicable guideline range and, therefore, the district court was without
authority to consider claims based on Supreme Court decisions in such a proceeding.
See
Bravo, 203 F.3d at 780-81.
Moreover, the government’s position that Ratliff was ineligible for a sentence
reduction based on Amendment 782 due to his career offender enhancement is
correct as a matter of law. See Groendyke Transp.,
Inc., 406 F.2d at 1162. Ratliff
is correct that Amendment 782 may have reduced his base offense level under
§ 2D1.1 as it was calculated based on attributable drug quantity. However, his
guideline range was unaffected by Amendment 782 because his total adjusted
offense level and criminal history category were determined under § 4B1.1 rather
than § 2D1.1. See
Lawson, 686 F.3d at 1321. Thus, because Amendment 782 did
not impact the career offender guideline in § 4B1.1, Ratliff was ineligible for a
sentence reduction under § 3582(c)(2) based on that amendment. See
Moore, 541
F.3d at 1330.
There is no substantial question that the district court lacked authorization to
reduce Ratliff’s sentence based on Amendment 782 and properly denied Ratliff’s
§ 3582(c)(2) motion. See Groendyke Transp.,
Inc., 406 F.2d at 1162. We therefore
5
Case: 20-12175 Date Filed: 09/14/2020 Page: 6 of 6
GRANT the government’s motion for summary affirmance and DENY AS MOOT
its motion to stay the briefing schedule.
6
