United States v. Sherrell Brinkley , 670 F. App'x 91 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6497
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHERRELL GARY BRINKLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:91-cr-00131-GCM-1)
Submitted: October 14, 2016 Decided: October 25, 2016
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sherrell Gary Brinkley, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina;
Jennifer Marie Hoefling, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sherrell Gary Brinkley appeals the district court’s order
denying his 18 U.S.C. § 3582(c)(2) (2012) motion, in which
Brinkley sought a reduction of his 360-month sentence based on
Amendment 591 of the U.S. Sentencing Guidelines. We affirm.
Amendment 591 was promulgated “to emphasize that the
sentencing court must apply the offense Guideline referenced in
the Statutory Index for the offense of conviction.” United
States v. Grecco, 342 F. App’x 739, 745 (3d Cir. 2009) (No.
08-4102) (internal quotation marks and alteration omitted).
Contrary to Brinkley’s position, the Amendment does not
foreclose a sentencing court, once it determines the appropriate
offense Guideline based on the Statutory Index, from applying
any cross-reference sanctioned by that Guideline. Id. at
745-46; see also United States v. Hurley, 374 F.3d 38, 40 (1st
Cir. 2004); Galloway v. United States, 62 F. App’x 261, 262
(10th Cir. 2003) (No. 01-4191). In Brinkley’s case, the
Guideline applicable to his 18 U.S.C. § 922(g) (2012)
conviction, U.S. Sentencing Guidelines Manual § 2K2.1 (1989),
expressly stated that a cross-reference might apply. See USSG
§ 2K2.1(c). The district court did not err in applying the
cross-reference for murder.
Because Amendment 591 did not, as Brinkley contends,
preclude the use of cross-references, we affirm the denial of
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the § 3582(c)(2) motion. 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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