United States v. Nicholas Currie

Case: 15-11520 Date Filed: 12/31/2015 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11520
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-00077-LGW-WLB-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
NICHOLAS CURRIE,
Defendant–Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(December 31, 2015)
Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Defendant Nicholas Currie, proceeding pro se, appeals the district court’s
sua sponte denial of a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 782 to the Sentencing Guidelines. After careful review, we affirm.
I. BACKGROUND
In 2007, Defendant pleaded guilty to possession with intent to distribute five
grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). After
he entered his guilty plea, the probation officer prepared Defendant’s Presentence
Investigation Report (“PSR”). The PSR indicated that Defendant was a career
offender under U.S.S.G. § 4B1.1 because he had two prior convictions for crimes
of violence. Because the statutory maximum for the present offense was 25 years
or more, Defendant’s career offender status resulted in an offense level of 34. The
PSR applied a 3-level reduction for acceptance of responsibility, pursuant to
U.S.S.G. § 3E1.1(a) and (b), resulting in a total offense level of 31. Given
Defendant’s numerous criminal convictions and status as a career offender, the
PSR assigned a criminal history category of VI. Based on a total offense level of
31 and a criminal history category of VI, the PSR calculated Defendant’s guideline
range as 188 to 235 months’ imprisonment.1
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Without the career offender designation, the PSR indicated that Defendant’s base offense level
would have been 26, pursuant to U.S.S.G. § 2D1.1(c)(7), and that Defendant would have been
subject to a 2-level enhancement for possession of a firearm, pursuant to §2D1.1(b)(1).
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Defendant did not file any objections to the PSR. The district court
ultimately imposed a 212-month sentence, and Defendant did not file a direct
appeal.
In March 2015, the district court sua sponte considered whether Defendant
was eligible for a sentence reduction under § 3582(c)(2). The district court
concluded that, as a career offender, Defendant was ineligible for a sentence
reduction. Defendant now appeals from that decision, arguing that he is entitled to
a reduction under Amendment 782 because he was erroneously sentenced as a
career offender. Because one of his predicate offenses was not a crime of violence,
in light of the Supreme Court’s decision in Chambers v. United States, 555 U.S.
122 (2009), he contends that his applicable guideline range should have been
calculated pursuant to the drug quantity guidelines, U.S.S.G. § 2D1.1, not the
career offender guideline.
II. DISCUSSION
We review de novo a district court’s legal conclusions on the scope of its
authority under § 3582(c)(2). United States v. Jones, 548 F.3d 1366, 1368 (11th
Cir. 2008). Under § 3582(c)(2), a district court may modify a term of
imprisonment when the original sentencing range has subsequently been lowered
as a result of an amendment to the Guidelines by the Sentencing Commission. 18
U.S.C. § 3582(c)(2). To be eligible for a sentence reduction under § 3582(c)(2), a
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defendant must identify an amendment to the Sentencing Guidelines that is listed
in U.S.S.G. § 1B1.10(d). U.S.S.G. § 1B1.10(a)(1). A defendant is not eligible for
a reduction under § 3582(c)(2) if a guideline amendment “does not have the effect
of lowering the defendant’s applicable guideline range.” Id. § 1B1.10(a)(2)(B); id.
§ 1B1.10, comment. (n.1(A)).
Amendment 782, which is listed in § 1B1.10(d) and which became effective
November 1, 2014, reduced by two levels the base offense level for most drug
offenses. See U.S.S.G. § 1B1.10(d); U.S.S.G. App. C, Amend. 782 (2014).
Amendment 782 did not make any changes to U.S.S.G. § 4B1.1, the career
offender guideline. See U.S.S.G. App. C., Amend. 782.
When a defendant is sentenced as a career offender, his base offense level is
determined under § 4B1.1, not under the Drug Quantity Table set forth in
§ 2D1.1(c). U.S.S.G. § 4B1.1; United States v. Moore, 541 F.3d 1323, 1327 (11th
Cir. 2008). In Moore, we faced the question of whether defendants who were
sentenced as career offenders under § 4B1.1 were eligible for § 3582(c)(2) relief in
light of Amendment 706, which like Amendment 782, lowered the § 2D1.1(c) base
offense levels for certain quantities of crack cocaine. 541 F.3d at 1325. We held
that the defendants did not qualify for § 3582(c)(2) relief because Amendment 706
had no effect on their applicable guideline ranges, which had been calculated under
§ 4B1.1 Id. at 1327–28, 1330. Likewise, in United States v. Lawson, 686 F.3d
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1317 (11th Cir. 2012), we concluded that Moore remained binding precedent and
that Amendment 750 did not lower the guideline range for career offenders. Id. at
1321.
Here, the district court did not err when it concluded that Defendant was not
eligible for a sentence reduction. Defendant’s total offense level and applicable
guideline range were not based on the drug quantity offense levels in § 2D1.1, but
instead were based on the career offender level in § 4B1.1. Because Defendant’s
guideline range was not based on the drug quantity guidelines, Amendment 782
did not lower the sentencing range upon which Defendant’s sentence was based.
See Lawson, 686 F.3d at 1321; Moore, 541 F.3d at 1327–30.
Although Defendant argues that he would be entitled to a sentence reduction
if he had not been improperly sentenced as a career offender, he cannot challenge
his career offender designation in a § 3582(c)(2) proceeding. See United States v.
Bravo, 203 F.3d 778, 780 (11th Cir. 2000) (stating that in a § 3582(c)(2)
proceeding “only the amended guideline is changed. All other guideline
application decisions made during the original sentencing remain intact”).
Accordingly, the district court committed no error in concluding that Defendant
was ineligible for a sentence reduction under § 3582(c)(2) and Amendment 782.
AFFIRMED.
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