United States v. Anthony Murphy , 527 F. App'x 592 ( 2013 )


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  •                United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 12-3769
    ___________________________
    United States of America,
    lllllllllllllllllllll Plaintiff - Appellee,
    v.
    Anthony S. Murphy, also known as Casper,
    lllllllllllllllllllll Defendant - Appellant.
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: April 8, 2013
    Filed: August 27, 2013
    [Unpublished]
    ____________
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
    ____________
    PER CURIAM.
    Anthony Murphy appeals the district court’s1 order denying his motion to
    reduce his sentence pursuant to 
    18 U.S.C. § 3582
    (c)(2), based on Amendment 750 to
    the sentencing guidelines. We affirm.
    In April 2005, Murphy pleaded guilty to conspiracy to possess with intent to
    distribute 50 grams or more of cocaine base, in violation of 
    21 U.S.C. §§ 841
    (a)(1)
    and (b)(1)(A), 846. Murphy’s advisory guideline range was 135 to 168 months’
    imprisonment, but because of a prior felony drug conviction, he was subject to a
    statutory minimum of 240 months. See 
    21 U.S.C. §§ 841
    (b)(1)(A), 851. The
    government moved to depart downward from the statutory minimum for substantial
    assistance, pursuant to USSG § 5K1.1 and 
    18 U.S.C. § 3553
    (e). The district court
    granted the motion and sentenced Murphy to 144 months’ imprisonment, followed
    by 8 years’ supervised release.
    Murphy moved for a sentence reduction based on 
    18 U.S.C. § 3582
    (c)(2) and
    Amendment 706 to the sentencing guidelines. Section 3582(c)(2) permits a court to
    reduce a defendant’s sentence when it is “based on a sentencing range that has been
    subsequently lowered” by a retroactive amendment to the guidelines. A court may
    not apply § 3582(c)(2), however, if the relevant guideline amendment does not lower
    the defendant’s applicable guideline range. See USSG § 1B1.10(a). Amendment
    706, as modified by Amendment 711, became effective on November 1, 2007, and
    it was made retroactive by Amendment 713. Amendment 706 revised the drug
    quantity table set forth at USSG § 2D1.1, and reduced by two levels the base offense
    levels for certain cocaine base offenses. United States v. Starks, 
    551 F.3d 839
    , 840
    (8th Cir. 2009). Murphy was accountable for 187 grams of cocaine base. When he
    was sentenced in 2005, the quantity of cocaine base for which Murphy was
    1
    The Honorable Nanette K. Laughrey, United States District Judge for the
    Western District of Missouri.
    -2-
    accountable resulted in an offense level of 34; under the 2007 guidelines and
    Amendment 706, that quantity resulted in an offense level of 32.
    Murphy argued that because the amendment reduced his base offense level
    from 34 to 32, it lowered his advisory guideline range to 108 to 135 months and thus
    made him eligible for a reduction. See § 3582(c)(2); USSG § 1B1.10(c). The district
    court granted a reduction to 115 months’ imprisonment. The government then moved
    for reconsideration, asserting that the statutory minimum of 240 months was
    Murphy’s guideline sentence, and thus the starting point for Murphy’s substantial
    assistance departure. See USSG § 5G1.1(b). Because the amendment did not lower
    the applicable statutory minimum, the government argued, Murphy was not eligible
    for a reduction under Amendment 706 and § 3582(c)(2). The court accepted the
    government’s argument and denied the reduction on reconsideration. Murphy
    appealed, and this court summarily affirmed.
    In 2012, Murphy filed a second § 3582(c)(2) motion to reduce his sentence
    under Amendment 750, which became effective on November 1, 2011, and was made
    retroactive by Amendment 759. Amendment 750 arose from the Fair Sentencing Act
    of 2010 and lowered the base offense levels for certain cocaine base offenses under
    USSG § 2D1.1. The amendment reduced by four more levels the base offense level
    applicable to the quantity of cocaine base for which Murphy was accountable.
    The district court reasoned that Amendment 750 had no effect on Murphy’s
    guideline range because Murphy’s sentence was based on the 240-month statutory
    minimum, and reductions in the statutory minima do not apply retroactively to
    defendants sentenced before the enactment of the Fair Sentencing Act on August 3,
    2010. We review de novo the district court’s determination that Murphy was not
    eligible for a reduction under § 3582(c)(2). United States v. Logan, 
    710 F.3d 856
    ,
    857 (8th Cir. 2013).
    -3-
    Under the guidelines, “[w]here a statutorily required minimum sentence is
    greater than the maximum of the applicable guideline range, the statutorily required
    minimum sentence shall be the guideline sentence.” USSG § 5G1.1(b). This is true
    “even when a sentencing judge has imposed a sentence below the statutory minimum
    due to the defendant’s substantial cooperation.” United States v. Golden, 
    709 F.3d 1229
    , 1231 (8th Cir. 2013). Here, Murphy’s statutory minimum sentence of 240
    months was greater than the maximum of his original guideline range (168 months),
    so his applicable guideline sentence was 240 months. United States v. Baylor, 
    556 F.3d 672
    , 673 (8th Cir. 2009) (per curiam).
    Murphy contends that application note 1 to USSG § 1B1.10 distinguishes
    between a guideline “sentence” and a guideline “range.” Application note 1 explains
    that a defendant’s eligibility for a reduction under § 3582(c)(2) “is triggered only by
    an amendment . . . that lowers the applicable guideline range.” USSG § 1B1.10,
    comment. (n. 1(A)). Amendment 759 defines the applicable guideline range as “the
    guideline range that corresponds to the offense level and criminal history
    category . . . which is determined before consideration of any departure provision.”
    See USSG § 1B1.10, comment. (n. 1(A)). Murphy contends that even if Amendment
    750 did not alter the applicable statutory minimum, the amendment reduced his
    offense level and thus lowered his “applicable guideline range.” But we rejected this
    argument in Golden, 709 F.3d at 1231-32, because application note 1 instructs that
    a reduction is not authorized where an amendment does not lower “the defendant’s
    applicable guideline range because of the operation of . . . a statutory mandatory
    minimum.” USSG § 1B1.10, comment. (n. 1(A)). When the mandatory minimum
    exceeds the range for the entire offense level, the “guideline sentence” is the same as
    the “guideline range,” even if the range is only one number. United States v. Trobee,
    
    551 F.3d 835
    , 839 (8th Cir. 2009).
    The retroactive guideline amendments, therefore, did not lower Murphy’s
    guideline range. “[T]he Fair Sentencing Act does not apply retroactively to
    -4-
    defendants who were sentenced before August 3, 2010, and who seek a reduction in
    their sentences under section 3582(c)(2).” United States v. Reeves, 
    717 F.3d 647
    , 651
    (8th Cir. 2013). The district court sentenced Murphy in 2005. The 240-month
    statutory minimum associated with Murphy’s cocaine base offense in 2005 applies
    to his current § 3582(c)(2) proceedings. Id. Because Amendment 750 did not affect
    Murphy’s guideline range, the district court lacked authority to reduce Murphy’s
    sentence under § 3582(c)(2).
    *       *      *
    The judgment of the district court is affirmed.
    ______________________________
    -5-
    

Document Info

Docket Number: 12-3769

Citation Numbers: 527 F. App'x 592

Judges: Colloton, Melloy, Per Curiam, Shepherd

Filed Date: 8/27/2013

Precedential Status: Non-Precedential

Modified Date: 11/6/2024