United States v. Derrick Blackmon ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1059
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United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Derrick D. Blackmon, *
* [PUBLISHED]
Appellee. *
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Submitted: October 19, 2009
Filed: October 27, 2009
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Before COLLOTON, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
The district court reduced Derrick D. Blackmon’s sentence from 200 months
to 162 months, after Amendment 706 to the Sentencing Guidelines. See 18 U.S.C. §
3582(c)(2). The government appeals, arguing that the original sentence was based on
his career offender range under section 4B1.1 of the Sentencing Guidelines; this range
was not lowered by Amendment 706; and thus he is not eligible for a sentence
reduction under section 3582(c)(2). See U.S.S.G. § 1B1.10, comment. (n.1(A))
(eligibility for consideration under section 3582(c)(2) is triggered only by an
amendment that lowers the applicable guideline range).
When a defendant is found to be a career offender under section 4B1.1, the
applicable guideline range under section 3582(c)(2) is his career offender range, even
if the actual sentence is a downward departure from it. See United States v. Collier,
581 F.3d 755, 759 (8th Cir. 2009) (holding that, although “the district court departed
significantly from the advisory Guidelines range,” the defendant “was sentenced as
a career offender”); United States v. Tolliver, 570 F.3d 1062, 1066-67 (8th Cir. 2009)
(holding that, despite subsequent downward departure, the “applicable guideline
range” for purposes of section 3582(c)(2) is the defendant’s career offender range).
Here, at the original sentencing, the district court adopted the presentence
investigation report, finding Blackmon to be a career offender under section 4B1.1.
In its Order Regarding Motion for Sentence Reduction, the district court determined
that the Guidelines range, prior to any departures, was the career offender range of
262 to 327 months. As in Collier and Tolliver, the district court sentenced below the
career offender range. However, unlike Collier and Tolliver, the district court in this
case departed from the career offender range based on overstated criminal history
under section 4A1.3(b)(3)(A) (before then varying downward after consideration of
the 18 U.S.C. § 3553(a) factors). Even so, section 4B1.1 provided the applicable
guideline range from which the district court departed. Because Blackmon’s sentence
was based on his career offender range, he is not eligible for a sentence reduction
under section 3582(c)(2).
Blackmon’s reduced sentence of 162 months imprisonment is vacated, the
sentence of 200 months imprisonment is reinstated, and the case remanded for
proceedings consistent with this opinion.
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