United States v. Thelton Jacob

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12651 FEBRUARY 6, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 00-00082-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THELTON JACOB,
a.k.a. Dred,
a.k.a. Boogie,
a.k.a. Paul Jacob,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 6, 2009)
Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Thelton Jacob, a federal prison inmate, moved the district court pursuant to
18 U.S.C. § 3582(c)(2) to reduce his sentences for two offenses: conspiracy to
possess with intent to distribute heroin, cocaine, and cocaine base (“crack
cocaine”), and possession with intent to distribute heroin. Jacob contended that he
was eligible for sentence reductions under Amendments 706 and 709 to the United
States Sentencing Guidelines. The district court disagreed and denied his motion.
Jacob now appeals, arguing that he is eligible for sentence reductions because he
was sentenced for a crack cocaine conspiracy offense.
“We review a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343
(11th Cir. 2003). However, in the § 3582(c)(2) context, “we review de novo the
district court’s legal conclusions regarding the scope of its authority under the
Sentencing Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir.
2002).
A district court may not modify a term of imprisonment once it has been
imposed except where expressly permitted by statute or by Fed.R.Crim.P. 35. 18
U.S.C. § 3582(c)(1)(B). One statutory exception to this general rule includes relief
under 18 U.S.C. § 3582(c)(2), which provides:
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[I]n the case of a defendant who has been sentenced to a
term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. 994(o), upon motion
of the defendant or the Director of the Bureau of Prisons,
or on its own motion, the court may reduce the term of
imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if
such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
The Sentencing Commission’s policy statement on the retroactive
reduction of sentences provides:
In a case in which a defendant is serving a term of
imprisonment, and the guideline range applicable to that
defendant has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in subsection (c)
below, the court may reduce the defendant’s term of
imprisonment as provided by 18 U.S.C. § 3582(c)(2). As
required by 18 U.S.C. § 3582(c)(2), any such reduction in the
defendant’s term of imprisonment shall be consistent with this
policy statement.
U.S.S.G. § 1B1.10(a)(1).1 The policy statement emphasizes that a reduction in the
term of imprisonment is not consistent with the policy statement, and therefore not
authorized by §3582(c)(2), if “none of the amendments listed in subsection (c) is
1
All citations to § 1B1.10 are to the version in the 2007 Guidelines Manual as modified by
the May 1, 2008 Supplement. The May 1, 2008 Supplement supercedes the March 3, 2008
Supplement and “when used in conjunction with the 2007 Guidelines Manual . . . constitutes the
operative Guidelines Manual effective May 1, 2008.” See U.S.S.G. Cover (Supp. May 1, 2008).
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applicable to the defendant . . .” or “an amendment listed in subsection (c) does not
have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G.
§ 1B1.10(a)(2)(A)-(B). Accordingly, for a district court to have authority, pursuant
to § 3582(c)(2), to reduce a sentence based on an amendment to the Sentencing
Guidelines, two initial conditions must be met. First, the sentence range must be
lowered by the amendment. United States v. Armstrong, 347 F.3d 905, 907 (11th
Cir. 2003). Second, the amendment must be listed as retroactively applicable in
U.S.S.G. § 1B1.10(c). Id.
On November 1, 2007, the Sentencing Commission promulgated
Amendment 709, which addresses “two areas of the Chapter Four criminal history
rules: the counting of multiple prior sentences and the use of misdemeanor and
petty offenses in determining a defendant’s criminal history score.” See U.S.S.G.
App. C, Amend. 709 (2007), Reason for Amendment. With regard to the count of
multiple prior sentences, if the prior sentences were separated by an intervening
arrest, they are to be counted separately. Id. If the prior sentences were not
separated by an intervening arrest, they are counted separately “unless the
sentences (1) were for offenses that were named in the same charging document, or
(2) were imposed on the same day.” Id. The Commission did not make
Amendment 709 retroactively applicable. See U.S.S.G. § 1B1.10(a)-(c).
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Amendment 706, which also became effective on November 1, 2007,
amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c). U.S.S.G. App. C,
Amend. 706 (2007). The effect of Amendment 706 is to provide a two-level
reduction in base offense levels for certain crack cocaine offenses. See id. The
Commission made this amendment retroactively applicable, effective as of March
3, 2008. See U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008) (listing
Amendment 706 under U.S.S.G. § 1B1.10(c) as a retroactively applicable
amendment).
In United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), petition for cert.
filed, (U.S. Nov. 26, 2008) (No. 08-7610), we stated that “[w]here a retroactively
applicable guideline amendment reduces a defendant’s base offense level, but does
not alter the sentencing range upon which his or her sentence was based,
§ 3582(c)(2) does not authorize a reduction in sentence.” Id. at 1330 (holding that
Amendment 706 would not affect the guideline ranges for career offenders
sentenced under § 4B1.1). Further, we have affirmed a district court’s denial of a
§ 3582(c)(2) motion when a defendant was accountable for at least 4.5 kilograms
crack cocaine because Amendment 706 did not lower the base offense level.
United States v. Jones, No. 08-13298, slip op. at 444 (11th Cir. Nov. 19, 2008).
Similarly, we held in Armstrong that an amendment concerning the possession of
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firearms did “not apply factually in Armstrong’s case” to allow for a reduction
because his sentence had not been affected by the possession of a firearm.
Armstrong, 347 F.3d at 908 (discussing Amendment 599).
Because, on appeal. Jacob does not mention Amendment 709 or the
calculation of his criminal history category and counting of prior sentences, he has
abandoned any claim with respect to that amendment. See Irwin v. Hawk, 40 F.3d
347, 347 n.1 (11th Cir. 1994). Even if he mentioned the amendment, it woud be to
no avail because Amendment 709 is not retroactively applicable. Amendment 706
does not apply to Jacob because his sentence was based on the heroin amount alone
and was not affected by the crack cocaine quantity.
For the foregoing reasons, Jacob’s motion was due to be denied.
AFFIRMED.
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