United States v. John White

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11651 ELEVENTH CIRCUIT
SEPTEMBER 13, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 01-00069-CR-CAR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN WHITE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 13, 2010)
Before EDMONDSON, CARNES and MARTIN, Circuit Judges.
PER CURIAM:
John White, convicted of distributing more than 50 grams of crack cocaine,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and sentenced to 160
months imprisonment, appeals the district court’s denial of his 18 U.S.C. §
3582(c)(2) motion for reduction of sentence, which was based on Amendment 706
to the Sentencing Guidelines. White contends that the district court erred by
finding that he was ineligible for a § 3582(c)(2) reduction because of his career-
offender status; his theory is that his downward-departure sentence he received
resulted from the sentencing court’s disagreement with the career-offender
guidelines and its belief that the operation of the guidelines overstated his criminal
history.
We review only for abuse of discretion a district court’s decision to deny
reduction of a defendant’s sentence pursuant to § 3582(c)(2), United States v.
Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005), but we review de novo its
conclusions about the scope of its legal authority under 18 U.S.C. § 3582(c)(2).
United States v. James, 548 F.3d 983, 984 (11th Cir. 2008).
In a section 3582(c) proceeding, a district court may not modify a term of
imprisonment unless a defendant was sentenced based on a sentencing range that
has “subsequently been lowered” by the Sentencing Commission. See 18 U.S.C.
§ 3582(c)(2). The applicable policy statements provide that a sentence reduction is
not authorized under § 3582(c)(2) if “‘the amendment does not have the effect of
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lowering the defendant’s applicable guideline range because of the operation of
another guideline.’” United States v. Moore, 541 F.3d 1323, 1327-28 (11th Cir.
2008) (quoting U.S.S.G. § 1B1.10, comment. (n.1(A))), cert. denied, 129 S.Ct.
965, and 129 S.Ct. 1601 (2009).
Amendment 706, which has been made retroactive, amended the Drug
Quantity Table in U.S.S.G. § 2D1.1(c) “to provide a two-level reduction in base
offense levels for crack cocaine offenses.” Id. at 1325; see also U.S.S.G. App. C,
Amend. 706. Nevertheless, if a defendant was sentenced as a career offender, his
base offense level was determined under the career-offender guidelines in
§ 4B1.1(b), and the drug-quantity guidelines in § 2D1.1(c) ultimately played no
role in his sentence. Moore, 541 F.3d at 1327. For that reason, Amendment 706
does not result in a lower guidelines range for the defendant. Id. at 1330. That is
what the record before us indicates happened in this case. The sentencing court did
grant White a downward departure from the career-offender-driven range based on
his substantial assistance to the government, but the resulting sentence was not
based on a sentencing range that was later lowered by Amendment 706. The
sentencing range from which the downward departure departed was set by the
career offender guidelines, which remain unaffected by the amendment.
White is like the movant in Moore. Amendment 706 reduced his base
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offense level but did not lower his applicable guideline range, which was dictated
by his career offender status. As a result, White, like Moore, is not eligible for a §
3582(c)(2) sentence reduction, and the district court did not abuse its discretion by
denying him one.
AFFIRMED.
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