United States v. Robert John Cook , 536 F. App'x 950 ( 2013 )

Case: 12-16367 Date Filed: 09/25/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16367
Non-Argument Calendar
________________________
D.C. Docket No. 5:04-cr-00023-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT JOHN COOK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 25, 2013)
Before DUBINA, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant Robert John Cook, proceeding pro se, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction, pursuant to
Case: 12-16367 Date Filed: 09/25/2013 Page: 2 of 5
Amendment 750 to the Sentencing Guidelines governing crack cocaine offenses.
Cook previously pled guilty to conspiring to distribute and possess 50 or more
grams of a substance containing crack cocaine and 500 or more grams of a
substance containing a detectible amount of crack cocaine. Although his pre-
sentence report designated him as a career offender under U.S.S.G. § 4B1.1,
Cook’s applicable guideline range was 360 months to life imprisonment based on
drug quantity under U.S.S.G. § 2D1.1. The district court sentenced Cook to life
imprisonment, the statutory mandatory minimum for his offense under 21 U.S.C.
§ 841(b)(1)(A), based on two prior offenses. The district court subsequently
reduced Cook’s sentence below the mandatory minimum under Fed.R.Crim.P.
35(b), for substantial assistance. The district court presiding over Cook’s
§ 3582(c)(2) motion found Cook ineligible for relief because he had been
sentenced as a career offender.
On appeal, Cook argues that the district court erred in denying his
§ 3582(c)(2) motion for reduction of sentence. He contends that the court
erroneously based its ruling on an inaccurate determination that his sentence was
controlled by the Guidelines for career offender, rather than drug quantity. Cook
emphasizes that the relevant issue is whether the district court correctly denied
§ 3582(c)(2) relief based on his career offender status, not whether his mandatory
minimum of life imprisonment rendered him ineligible for such relief.
2
Case: 12-16367 Date Filed: 09/25/2013 Page: 3 of 5
“We review de novo a district court’s conclusion that a defendant is not
eligible for a sentence reduction under § 3582(c)(2).” United States v. Glover, 686
F.3d 1203, 1206 (11th Cir. 2012).
Amendment 750 to the Sentencing Guidelines, made retroactively applicable
on November 1, 2011, by Amendment 759, revised the crack cocaine quantity
tables listed in § 2D1.1(c). See U.S.S.G. App. C, Amend. 750, Reason for
Amendment; id. Amend. 759. In 2010, the Fair Sentencing Act (“FSA”) raised the
drug quantity thresholds of crack cocaine required to trigger the mandatory
minimum imprisonment terms. U.S.S.G. App. C, Amend. 750, Reason for
Amendment. To account for the statutory changes in crack cocaine sentencing, the
Sentencing Commission implemented Amendment 750 to revise the drug quantity
table to lower the base offense levels for crack cocaine. See U.S.S.G. App. C,
Amend. 750, Reason for Amendment; U.S.S.G. § 2D1.1(c)(7).
Under § 3582, district courts are permitted to modify a term of imprisonment
when a defendant is sentenced pursuant to a sentencing range that has since been
lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). However, a
reduction is not authorized under § 3582(c)(2), even when the retroactive
amendment applies to the defendant, if the amendment does not have the effect of
lowering the applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B) & comment.
(n.1(A)); United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008). Such
3
Case: 12-16367 Date Filed: 09/25/2013 Page: 4 of 5
situations include those in which the retroactive amendment would result in a
lower base offense level if the defendant was not subject to a statutory mandatory
minimum sentence. Glover, 686 F.3d at 1206; see United States v. Williams,
549 F.3d 1337, 1340-41 (11th Cir. 2008) (holding that a sentence based on a
mandatory minimum was unaffected by Amendment 706 to the Sentencing
Guidelines). Even if the defendant is sentenced below the statutory mandatory
minimum, due to the government filing a substantial assistance motion, the district
court’s downward departure does not constitute a waiver of the applicability of the
mandatory minimum; thus, the sentence remains based upon the mandatory
minimum for purposes of § 3582(c)(2). Williams, 549 F.3d at 1340-41; United
States v. Mills, 613 F.3d 1070, 1077-78 (11th Cir. 2010) (holding that “the
operative provision in determining [the defendants’] applicable sentencing range is
the statutory minimum, . . . not the crack cocaine Guideline,” and that the
defendants were “still subject to the mandatory minimum, upon which their
substantial assistance departures—and thus their ultimate sentences—were
based.”).
In this case, regardless of which Guideline applied, we conclude that Cook’s
original sentence was subject to a statutory mandatory minimum sentence of life
imprisonment; thus, he was not eligible for § 3582(c)(2) relief, despite his
subsequent sentence reduction for substantial assistance. See Glover, 686 F.3d at
4
Case: 12-16367 Date Filed: 09/25/2013 Page: 5 of 5
1206; Mills, 613 F.3d at 1077-78. Although the district court denied Cook’s
§ 3582(c)(2) motion on the ground that he was sentenced as a career offender, we
“may affirm for any reason supported by the record, even if not relied upon by the
district court,” United States v. Chitwood, 676 F.3d 971, 975 (11th Cir.), cert.
denied, 133 S. Ct. 288 (2012) (internal quotation marks omitted). Because Cook’s
original sentence was governed by a statutory mandatory minimum, Amendment
705 to the Sentencing Guidelines did not operate to reduce his sentencing range.
Accordingly, Cook is not eligible for a sentence reduction under § 3582(c)(2).
AFFIRMED.
5