United States v. Paul Winestock ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4892
PAUL WINESTOCK, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-90-454)
Submitted: July 13, 1999
Decided: August 2, 1999
Before WILKINS, LUTTIG, and MOTZ,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William B. Purpura, LAW OFFICES OF WILLIAM B. PURPURA,
Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United
States Attorney, John V. Geise, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Following a jury trial, Paul Winestock, Jr., was convicted on one
count of distribution of cocaine base and one count of possession with
intent to distribute cocaine. Under the sentencing guidelines in effect
at the time of Winestock's initial sentencing, his initial base offense
level was 42, based on a quantity of cocaine attributable to him in
excess of fifteen kilograms, and his final base offense level was 46.
Later, a retroactive amendment to the guidelines, Amendment 505,
reduced the maximum base offense level for drug quantity to 38. See
U.S. Sentencing Guidelines Manual § 1B1.10(c) (1994). Pursuant to
18 U.S.C.A. § 3582(c)(2) (West Supp. 1999), the district court resen-
tenced Winestock. The amendment decreased Winestock's base
offense level from 46 to 42 and the district court imposed a 360-
month sentence, a lower sentence than the concurrent life terms
Winestock initially received.
At the resentencing, Winestock sought a downward departure,
arguing that he had demonstrated significant post-sentencing rehabili-
tation since his initial sentence. The district court declined to make
such a departure, stating that, as a matter of law, it lacked the author-
ity to do so. On appeal, Winestock argues that the district court erro-
neously concluded that it could not make the downward departure.
We find no merit to his claim; consequently, we affirm.
Pursuant to 18 U.S.C.A. § 3582(c)(2), the district court may reduce
a sentence previously imposed when the sentencing range later is low-
ered by the Sentencing Commission "if such a reduction is consistent
with the applicable policy statements issued by the Sentencing Com-
mission." The applicable policy statement, U.S.S.G. § 1B1.10, per-
mits a sentence reduction where the defendant's guideline range was
lowered due to an amendment listed in subsection (c), but not other-
wise. Thus, the district court may consider a reduction in sentence
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pursuant to § 3582(c)(2) only where the relevant amendment specifi-
cally is made retroactive and is listed in U.S.S.G.§ 1B1.10(c). See
U.S.S.G. § 1B1.10, comment. (n. 2); United States v. Drath, 89 F.3d
216, 217-18 (5th Cir. 1996). The district court correctly determined
that a downward departure based on post-conviction rehabilitation
was not available to Winestock. We need not consider whether he
would have qualified for the reduction had it been available.
For these reasons, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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