Document Info

DocketNumber: 12-13212

Judges: Carnes, Hull, Jordan, Per Curiam

Filed Date: 11/21/2012

Status: Non-Precedential

Modified Date: 11/6/2024

  •                     Case: 12-13212         Date Filed: 11/21/2012   Page: 1 of 4
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 12-13212
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 3:05-cr-00006-RV-1
    UNITED STATES OF AMERICA,
    llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,
    versus
    KENDALL IVAN BROWN,
    llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    ________________________
    (November 21, 2012)
    Before CARNES, HULL, and JORDAN, Circuit Judges.
    PER CURIAM:
    Kendall Brown pleaded guilty to one count of conspiring to distribute and
    possess with intent to distribute at least 50 grams of crack cocaine in violation of
    
    21 U.S.C. § 841
    (a)(1), (b)(1)(A) and § 846, and one count of possession with intent
    Case: 12-13212      Date Filed: 11/21/2012   Page: 2 of 4
    to distribute at least 50 grams of crack cocaine in violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(A). The presentence investigation report concluded that Brown
    was responsible for two kilograms of crack cocaine, which made his base offense
    level 38. See United States Sentencing Guidelines § 2D1.1(c)(1) (Nov. 2004). He
    received a 3-level reduction for acceptance of responsibility, resulting in a total
    offense level of 35. Brown’s criminal history category was VI, which resulted in a
    guidelines range of 292–365 months imprisonment. But because Brown had at
    least two prior felony drug convictions, he was subject to a mandatory minimum
    life sentence. See 
    21 U.S.C. § 841
    (b)(1)(A). Because the statutory mandatory
    minimum sentence was greater than the otherwise applicable guidelines range, the
    statutory mandatory minimum of life imprisonment became the guidelines range of
    life in prison. See U.S.S.G. § 5G1.1(b).
    The government filed a U.S.S.G. § 5K1.1 substantial assistance motion, and
    the district court departed downward from Brown’s guidelines range of life
    imprisonment and sentenced him to 270 months imprisonment on each count, with
    the sentences to run concurrently. The government later filed a Fed. R. Crim. P.
    35(b) substantial assistance motion and the court reduced Brown’s sentences to
    180 months imprisonment on each count, with the sentences to run concurrently.
    Brown filed a pro se motion to reduce his sentence under 
    18 U.S.C. § 3582
    (c)(2), contending that Amendment 750 to the guidelines had reduced his
    2
    Case: 12-13212     Date Filed: 11/21/2012   Page: 3 of 4
    guidelines range. The district court denied that motion, concluding that it lacked
    authority to reduce Brown’s sentence because he is subject to a mandatory
    minimum life sentence. This is Brown’s appeal.
    The district court did not err in denying Brown’s § 3582(c)(2) motion.
    Brown argues that Amendment 750 lowered his base offense level to 34, and after
    the acceptance of responsibility reduction his total offense level would be 31,
    resulting in a guidelines range of 188–235 months imprisonment. Brown was
    sentenced based on a guidelines range of life in prison because he was subject to a
    statutory mandatory minimum life sentence as a result of his prior felony drug
    convictions. Because his guidelines range was based on a statutory mandatory
    minimum, Amendment 750 did not lower Brown’s guidelines range. Because
    Amendment 750 did not lower his guidelines range, Brown is not eligible for a
    sentence reduction under 
    18 U.S.C. § 3582
    (c)(2). See United States v. Glover, 
    686 F.3d 1203
    , 1207 (11th Cir. 2012).
    Brown also contends that he should have received a sentence reduction
    because under U.S.S.G. § 1B1.10(b)(2)(B), a defendant who received a substantial
    assistance downward departure may have his sentence comparably reduced below
    the amended guidelines range. Section 1B1.10(b)(2)(B), however, does not permit
    a court to reduce a defendant’s sentence based on a guidelines amendment that
    does not actually lower his guidelines range, as is the case here. Glover, 
    686 F.3d 3
    Case: 12-13212    Date Filed: 11/21/2012   Page: 4 of 4
    at 1207–08. Brown further contends that the statutory mandatory minimum
    sentences set out in the Fair Sentencing Act of 2010 apply in a § 3582(c)(2)
    proceeding, but we need not address that question. Because Brown was
    responsible for two kilograms of crack cocaine and had two prior felony drug
    convictions, he would be subject to a mandatory minimum life sentence both
    before and after the enactment of the Fair Sentencing Act of 2010, Pub. L. No.
    111-220, 
    124 Stat. 2372
    .
    AFFIRMED.
    4