United States v. Ed Reed

Case: 12-10610 Date Filed: 12/05/2012 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10610
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-20634-JAL-4
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ED REED,
a.k.a. Darren McCormick,
a.k.a. “LA”,
lllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 5, 2012)
Before TJOFLAT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Ed Reed, proceeding pro se, appeals the district court’s denial of his motion
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for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2). On appeal, Reed
argues that the district court improperly assumed that his motion was based on the
crack cocaine amendments1, as opposed to Amendments 506 and 567. Further, he
requests that his appeal be consolidated with United States v. Green, No. 12-
10247, and he adopts the appellant’s arguments in that case. For the reasons set
forth below, we affirm the district court’s denial of Reed’s § 3582(c)(2) motion.
I.
In 2008, Reed pled guilty to conspiracy to possess with intent to distribute a
detectable amount of cocaine, in violation of 21 U.S.C. § 846. According to the
presentence investigation report (“PSI”), Reed qualified as a career offender under
U.S.S.G. § 4B1.1(a), and as such, his base offense level was 32. After a three-
level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b),
his total offense level was 29. Based on this offense level and a criminal history
category of IV, Reed’s guideline range was 151 to 188 months’ imprisonment.
Ultimately, the court imposed a 151-month sentence.
In November 2011, Reed filed the instant pro se § 3582(c)(2) motion based
on Amendments 506 and 567, and United States v. LaBonte, 520 U.S. 751, 117
1
Amendments 706 and 750 to the Sentencing Guidelines revised the crack cocaine
quantity tables listed in U.S.S.G. § 2D1.1(c). See U.S.S.G. App. C, amends. 706 and 750.
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S.Ct. 1673, 137 L.Ed.2d 1001 (1997). In his motion, Reed argued that the district
court’s application of the career offender guideline, § 4B1.1, was unlawfully based
on his prior conviction, as the government failed to file a notice, pursuant to 21
U.S.C. § 851(a)(1), charging him as a “recidivist offender.” Moreover, he alleged
that the court’s application of the career offender enhancement violated the
separation of powers. Reed further asserted that the LaBonte decision should be
treated as a clarifying amendment to the Sentencing Guidelines because, among
other reasons, Amendment 567 was based on LaBonte. He argued that
jurisprudence establishes that the government is required to provide § 851 notice
before the career offender guideline enhancement is imposed. He concluded that,
in light of LaBonte, the district court should apply an offense level of 18 and a
guideline range of 27 to 33 months.
The district court denied Reed’s § 3582(c)(2) motion, indicating that he was
ineligible for a sentence reduction based on his career offender status
II.
We review a district court’s denial of a § 3582(c)(2) sentence reduction for
an abuse of discretion. United States v. Davis, 587 F.3d 1300, 1303 (11th Cir.
2009). We review de novo the district court’s legal conclusions about the scope of
its authority under the sentencing guidelines and review its factfindings for clear
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error. Id. We may affirm the district court’s decision on any ground supported by
the record. United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012), cert.
denied, (U.S. Oct. 1, 2012) (No. 12-5074). Further, we liberally construe
pleadings filed by pro se litigants. Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998).
A court may only modify a term of imprisonment in limited circumstances,
including where a defendant “has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). Further, § 3582(c)(2) does not grant the
district court jurisdiction to reconsider all original sentencing determinations.
United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000). In fact, “all original
sentencing determinations remain unchanged with the sole exception of the
guideline range that has been amended since the original sentencing.” Id.Moreover, the district court may not modify an imposed term of imprisonment
upon a § 3582(c)(2) motion unless the defendant’s sentencing range was
subsequently lowered by an amendment to the Sentencing Guidelines. See id. at
780; U.S.S.G. § 1B1.10(a)(2)(B). Other sentencing issues should be raised in a 28
U.S.C. § 2255 motion. See Bravo, 203 F.3d at 782.
Amendment 506, effective November 1, 1994, changed the definition of
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“Offense Statutory Maximum” in U.S.S.G. § 4B1.1’s commentary to mean only
the basic statutory maximum and excluded any sentencing enhancements based on
the defendant’s prior criminal record. See U.S.S.G. App. C, amend. 506. In
LaBonte, however, the Supreme Court concluded that Amendment 506 violated
the plain language of 28 U.S.C. § 944(h), which requires the Guidelines to specify
a sentence “at or near the maximum term authorized” for defendants who had
certain prior felony convictions. LaBonte, 520 U.S. at 757–62, 117 S.Ct. at1677–79. The term “maximum term authorized” in § 944(h) includes any relevant
statutory sentencing enhancements. See id. at 753, 117 S.Ct. at 1675. In response,
the Sentencing Commission adopted Amendment 567, effective November 1,
1997, which amended the commentary to § 4B 1.1 to specify that “Offense
Statutory Maximum” included sentencing enhancements based on the defendant’s
prior criminal record. See U.S.S.G. App. C, amend. 567.
As an initial matter, Reed has abandoned the arguments that he raised in his
§ 3582(c)(2) motion by failing to raise them in his appeal brief, and instead,
attempting to adopt an appellant’s brief in a separate case. See United States v.
Woods, 684 F.3d 1045, 1064 n.23 (11th Cir. 2012); United States v. Gupta, 463
F.3d 1182, 1195 (11th Cir. 2006) (explaining that we “may decline to address an
argument where a party fails to provide arguments on the merits of an issue in its
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initial or reply brief”). We permit an appellant to adopt by reference any part of
another party’s brief by including a statement describing in detail which briefs and
which portions of those briefs are adopted. 11th Cir. R. 28-1(f). The appellant in
Green, however, is not a party in the instant appeal, and moreover, Reed does not
describe in detail which of Green’s arguments he intends to adopt. Regardless, as
discussed below, even construing Reed’s appeal brief liberally to preserve the
arguments that he made before the district court, see Tannenbaum, 148 F.3d at
1263, he is not entitled to sentence reduction. Further, Reed’s request to have his
appeal consolidated with Green is moot because the appeal in that case is no
longer pending before this Court.
The district court did not abuse its discretion in denying Reed’s
§ 3582(c)(2) motion. On appeal, Reed suggests that the district court’s order
denying his § 3582(c)(2) motion was confusing because the district court assumed
that his motion was filed pursuant to the crack cocaine amendments instead of
Amendments 506 and 567. The district court, however, did not specify a
guidelines amendment in denying Reed’s § 3582(c)(2) motion. Instead, the court
merely stated that Reed was not entitled to relief under § 3582(c)(2) because he
was sentenced as a career offender. Regardless, even if the district court
improperly construed Reed’s motion as seeking a sentence reduction based on the
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crack cocaine amendments instead of Amendments 506 and 567, we may affirm
on any basis supported by the record, see Chitwood, 676 F.3d at 975, and here, the
record makes clear that Reed is not entitled to a sentence reduction.
Amendment 506, effective November 1, 1994, and Amendment 567,
effective November 1, 1997, were both issued well before Reed entered his guilty
plea in 2008, and thus, his applicable sentencing range was not subsequently
lowered by those amendments. U.S.S.G. App. C, amends. 506 and 567; Bravo,
203 F.3d at 780-81. Additionally, § 3582(c)(2) authorizes the district court to
reduce a defendant’s sentence pursuant to retroactively applicable guideline
amendments, not Supreme Court decisions, such as LaBonte. See United States v.
Moreno, 421 F.3d 1217, 1220 (2005) (concluding that Booker2 was a Supreme
Court decision, not a retroactively applicable guideline amendment by the
Sentencing Commission, and therefore, Booker was inapplicable to § 3582(c)(2)
motions); U.S.S.G. § 1B1.10(a)(2)(B). Finally, to the extent that Reed seeks to
challenge the district court’s application of § 4B1.1 during sentencing, such a
challenge is outside the limited scope of § 3582(c)(2), and he must raise it in a
collateral attack under 28 U.S.C. § 2255. See Bravo, 203 F.3d at 780-82.
2
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
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For the foregoing reasons, we affirm the district court’s denial of Reed’s
§ 3582(c)(2) motion.
AFFIRMED.
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