United States v. Mack ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7902
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY MACK, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:04-cr-00226-RJC-CH-1)
Submitted: January 20, 2011 Decided: March 17, 2011
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Johnny Mack, Jr., Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Mack, Jr., appeals the district court’s order
denying his motion for reduction of sentence under 18 U.S.C.
§ 3582(c)(2) (2006) and Amendment 706 to the Sentencing
Guidelines. The district court is generally authorized to
reduce the term of imprisonment of a defendant who has been
sentenced based on a sentencing range that has subsequently been
lowered by an amendment to the Sentencing Guidelines under
§ 3582(c)(2), so long as the amendment has been made
retroactively applicable. See U.S. Sentencing Guidelines Manual
(USSG) § 1B1.10, p.s. (2010); see also USSG § 1B1.10(c) (stating
Amendment 706 applies retroactively). A defendant, however, is
ineligible for a sentence reduction “if . . . the amendment does
not have the effect of lowering the defendant’s applicable
guideline range because of the operation of another guideline or
statutory provision.” USSG § 1B1.10 cmt. n.1(A).
The district court began Mack’s sentencing hearing by
establishing a base offense level of thirty under USSG
§ 2D1.1(c)(5). 1 After application of a two-level reduction under
1
Mack pled guilty to possession with intent to distribute
five grams or more of cocaine base (Count 1), possession of a
firearm during and in relation to a drug trafficking crime
(Count 2), and possession of a firearm by a felon (Count 3).
Counts 1 and 3 were closely related and therefore grouped under
the Sentencing Guidelines. See USSG § 3D1.2(c) (explaining when
(Continued)
2
Amendment 706, the relevant offense level for Count 1 becomes
twenty-eight. See generally United States v. Lindsey, 556 F.3d
238, 244-46 (4th Cir.) (explaining methodology for applying
Amendment 706), cert. denied, 130 S. Ct. 182 (2009). Because
this offense level still is greater than the offense level
determined under Count 3 (the firearm count), Count 1 controls.
With a three-level reduction for acceptance of responsibility,
the revised grouped offense level is twenty-five, and the
amended Guidelines range is 100 to 125 months, making Mack
eligible for a sentence reduction.
Because we conclude that Mack is eligible for a
sentence reduction, we vacate the district court’s order and
remand for further consideration under USSG § 1B1.10. 2 We
dispense with oral argument because the facts and legal
counts should be grouped for “involv[ing] substantially the same
harm”).
2
By this disposition, we indicate no view as to whether the
district court should exercise its discretion to reduce Mack’s
sentence; we simply conclude that the court erred by finding
that Mack was not eligible for a sentencing reduction. Indeed,
in exercising its discretion, the district court must be mindful
that the Guidelines direct that “if the original term of
imprisonment constituted a non-guideline sentence determined
pursuant to 18 U.S.C. § 3553(a) [(2006)] and United States v.
Booker, 543 U.S. 220 (2005), a further reduction generally would
not be appropriate.” USSG § 1B1.10(b)(2)(B).
3
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
4