United States v. Julius Stevens

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15384 ELEVENTH CIRCUIT
APRIL 24, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 99-00003-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIUS STEVENS,
a.k.a. Judog,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 24, 2009)
Before BIRCH, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Julius Stevens appeals pro se the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction. The district court concluded that
Amendment 706 to the Sentencing Guidelines did not reduce his sentencing range,
which was based on his career offender designation. After careful review, we
AFFIRM.
I. BACKGROUND
Stevens pled guilty in 1999 to conspiracy to possess with intent to distribute
cocaine and marijuana, in violation of 21 U.S.C. § 846. Stevens was held
accountable for at least 50 grams of crack cocaine, which set his base offense level
at 32 under U.S.S.G. § 2D1.1(c). His qualification as a career offender under
U.S.S.G. § 4B1.1, however, elevated his base offense level to 37 and his criminal
history category to VI. After subtracting three levels for acceptance of
responsibility and timely notification of his intention to plead guilty, Stevens’s
total offense level was 34 and his sentencing range was 262 to 327 months of
imprisonment. The court sentenced him to the low-end range of 262 months in
prison.
In April 2008, Stevens, through counsel, filed a § 3582(c)(2) motion to
reduce his sentence. Stevens asserted that his base offense level should be reduced
two levels under Amendment 706, thereby reducing his sentencing guidelines
range. The district court determined that Amendment 706 did not affect Stevens’s
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career offender sentencing calculation, and even if it did, Stevens’s original
sentence was reasonable and sufficient. Accordingly, the district court denied his §
3582(c)(2) motion. Stevens now appeals.
II. DISCUSSION
We review a district court’s denial of a § 3582(c)(2) motion for abuse of
discretion, and its legal interpretations de novo. See United States v. Williams,
549 F.3d 1337, 1338-39 (11th Cir. 2008) (per curiam). Pursuant to § 3582(c)(2), a
district court may reduce a defendant’s sentence that was based on a guideline
sentencing range which the Sentencing Commission has subsequently lowered.
See 18 U.S.C. § 3582(c)(2). Amendment 706 amended the Drug Quantity Table in
U.S.S.G. § 2D1.1(c) by reducing the base offense levels for certain drug offenses.
See United States v. Moore, 541 F.3d 1323, 1325 (11th Cir. 2008), cert. denied,
___ U.S. ___, ___ S. Ct. ___ (2009). Amendment 706 had no impact on the career
offender provision of U.S.S.G. § 4B1.1, however. See id. at 1330. Consequently,
a defendant is not eligible for a sentence reduction under Amendment 706 if his
sentence was based on the career offender provision under § 4B1.1, rather than on
the amount of drugs attributable to him under § 2D1.1(c) . See id.
Our independent review of the record confirms the district court’s finding
that Stevens was sentenced as a career offender. Because the court did not utilize
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his base offense level calculated under § 2D1.1(c) to determine his guideline
sentencing range, Stevens’s sentence was not based on the amount of drugs
involved. Consequently, Amendment 706 had no effect on Stevens’s sentence and
did not entitle him to a sentence reduction. See id. (affirming the denial of §
3582(c)(2) motions because “although Amendment 706 would reduce the base
offense levels applicable to the defendants, it would not affect their guideline
ranges because they were sentenced as career offenders under § 4B1.1”).
Stevens raises two new issues in his reply brief: (1) his sentence violated
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2848 (2000), and (2) the district
court should have considered the racial disparity in the treatment of crack and
powder cocaine offenses discussed in Kimbrough v. United States, ___U.S. ___,
128 S. Ct. 558 (2007). We generally will not address issues raised for the first time
in a reply brief. See United States v. Valladares, 544 F.3d 1257, 1269 n.2 (11th
Cir. 2008) (per curiam). In any event, both arguments are outside the scope of a
§ 3582(c)(2) proceeding. See United States v. Bravo, 203 F.3d 778, 782 (11th Cir.
2000) (concluding that § 3582(c)(2) “does not grant to the court jurisdiction to
consider extraneous resentencing issues”); United States v. Melvin, 556 F.3d
1190, 1193 (11th Cir. 2009) (per curiam), petition for cert. filed (Feb. 10, 2009)
(No. 08-8664) (concluding that Kimbrough does not apply to § 3582(c)(2)
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proceedings because it only addressed the crack/powder disparity with respect to
original sentencing proceedings) .
III. CONCLUSION
The sentencing range upon which Stevens’s sentence was based is
unchanged by Amendment 706 because he qualified as a career offender. The
district court thus correctly concluded that Stevens was ineligible for a sentence
reduction under Amendment 706. Accordingly, we AFFIRM the district court’s
order denying his § 3582(c)(2) motion.
AFFIRMED.
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