United States v. Christopher Philip Dileo

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12126 ELEVENTH CIRCUIT
APRIL 27, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-80143-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER PHILIP DILEO,
a.k.a. Philip Dileo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 27, 2009)
Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:
Christopher Philip Dileo, who was convicted of, inter alia, a crack cocaine
offense, appeals through counsel the district court’s denial of his pro se motion for
modification of sentence, pursuant to 18 U.S.C. § 3582(c)(2) and based on
Amendment 706, which reduced the base offense levels applicable to crack cocaine
offenses. The district court denied the motion because Dileo’s base offense level
was determined using the career-offender guideline, U.S.S.G. § 4B1.1, rather than
the drug-quantity guideline, U.S.S.G. § 2D1.1. Dileo argues that this was error
because he actually was not sentenced as a career offender, given that the district
court granted a downward departure from the career-offender guideline
imprisonment range because of his diminished mental capacity. Dileo also argues
that the Sentencing Guidelines are merely advisory, and that the district court
should have departed beyond two levels in light of the continued sentencing
disparity between cocaine powder and crack cocaine. Based on our precedent in
United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008), cert. denied,
McFadden v. United States, 129 S. Ct. 965 (2009), and cert. denied, (U.S. Mar. 9,
2009) (No. 08-8554), we affirm.1
We review de novo “the district court’s legal conclusions regarding the
1
Upon Dileo’s appeal from the district court’s denial of his motion, we ordered Dileo’s
appeal stayed pending resolution of Moore. After deciding Moore, we directed the parties to
advise whether any issues remained unresolved. Based on the parties’ responses, we ordered
that the matter be briefed.
2
scope of its authority under the [Guidelines].” Id. Pursuant to § 3582(c)(2), when
an already-incarcerated defendant’s sentence was determined using a guideline
range that retroactive amendments to the Guidelines have reduced, the district
court may reduce the sentence, after considering the factors set forth in 18 U.S.C.
§ 3553(a) and if such a reduction would be consistent with the policy statements
issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Pursuant to
§ 1B1.10, a reduction is not consistent with its policy statements if the retroactive
amendment in question does not have the effect of lowering defendant’s applicable
guideline range. U.S.S.G. § 1B1.10(a)(2)(B).
In Moore, we held that, when a defendant was sentenced as a career
offender, and § 2D1.1 played no role in the calculation of his career offender
guideline range, his sentenced was not “based on a sentencing range that has
subsequently been lowered” and the district court lacked authority to grant a
reduction under Amendment 706. 541 F.3d at 1327-28, 1330. We held that this
was so even when a defendant was granted a downward departure based on
diminished capacity. Id. at 1330. We reasoned that, because the district court did
not calculate the defendant’s guideline range using § 2D1.1, her sentence was not
affected by Amendment 706. Id.
The district court did not err in denying Dileo’s motion. See id. at 1326.
3
Nothing in the record suggests that the holding in Moore, that defendants who are
sentenced as career offenders are not entitled to reductions, even if they are granted
a downward departure, does not apply. See id. at 1327-28, 1330. The district
court set Dileo’s base offense level pursuant to § 4B1.1. The district court’s
downward departure was taken from this base offense level. Because he was not
sentenced based upon the § 2D1.1 base offense level, Amendment 706 did not
affect Dileo’s sentence. See id. To the extent that Dileo argues that United States
v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), gave the district
court an independent basis to grant a sentencing reduction, his argument is
foreclosed by United States v. Melvin, 556, F3d 1190, 1192-93 (11th Cir. 2009)
(holding that Booker “do[es] not prohibit the limitations on a judge’s discretion in
reducing a sentence imposed by § 3582(c)(2) and the applicable policy statement
by the Sentencing Commission”), petition for cert. filed, (U.S. Feb. 10, 2009) (No.
08-8664). Accordingly, we affirm.
AFFIRMED.
4