United States v. Shawn Williamson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 15, 2005
No. 04-11573 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-00058-CR-01-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN WILLIAMSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 15, 2005)
Before TJOFLAT, DUBINA, and BARKETT, Circuit Judges.
PER CURIAM:
Shawn Williamson, a federal prisoner proceeding pro se, appeals the denial
of his motion to modify term of imprisonment pursuant to U.S.C. 18 § 3582(c)(2),
based upon retroactively applicable sentencing guidelines. He was previously
convicted for: (1) conspiracy to commit robbery (of Burger King and Anthony’s
Pizza restaurants) (count one), in violation of 18 U.S.C. § 371; (2) robbery of
Leticia Martinez, a Burger King employee, and Henry Lee Ryans, an Anthony’s
Pizza employee (counts two and four), in violation of 18 U.S.C. § 2111; (3) using
and carrying a firearm during the crime of violence in count two (count three), in
violation of 18 U.S.C. § 924(c)(1); and (4) assault with intent to murder Henry Lee
Ryans (count six), in violation of 18 U.S.C. § 113(a)(1).
Williamson argues that the district court erred by denying his motion to
modify his term of imprisonment. He claims that pursuant to amendment 599 to
the sentencing guidelines, the seven-level enhancement for discharging a firearm
that the district court imposed pursuant to U.S.S.G. § 2B3.1(b)(2)(A), should be
removed. Williamson claims that the robberies of the Burger King and the
Anthony’s Pizza were a continuing series of crimes, and he should have been
charged only with one count of robbery. He also asserts that because the robbery
took place in the same building, the seven-level enhancement should not have been
applied, especially since he had been convicted for using a firearm, pursuant to 18
U.S.C. § 924(c)(1). Williamson argues that the same firearm was used in all of the
crimes, and, therefore, the seven-level enhancement was imposed for the same
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firearm that he was charged for using under 18 U.S.C. § 924(c). Moreover, for the
first time on this appeal, Williamson argues that his sentence violated his Sixth
Amendment right to a jury trial, because the seven-point enhancement was
imposed for conduct that he did not admit to and the jury did not find, as required
by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004),
and United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621
(2005).
I.
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). “A district court by definition abuses its discretion when it
makes an error of law.” Id. citing Koon v. United States, 518 U.S. 81, 100, 116
S. Ct. 2035, 2047, 135 L. Ed. 2d 392 (1996).
18 U.S.C. § 3582(c)(2) permits a modification of a term of imprisonment if,
after sentencing, the Sentencing Commission lowers the sentencing range pursuant
to 28 U.S.C. § 994(o). See 18 U.S.C. § 3582(c)(2). Amendment 599, which
became effective on November 1, 2000, addresses the circumstances under which a
court may impose a weapons enhancement on a defendant who was convicted of a
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firearms offense under 18 U.S.C. § 924(c). See 2000 Federal Sentencing
Guidelines Manual, Appendix C.; see also United States v. Pringle, 350 F.3d 1172,
1176 (11th Cir. 2003). The portion of amendment 599 that Williamson relies
upon for his reduction of sentence states, in pertinent part, “[i]f a sentence under
this guidelines is imposed in conjunction with a sentence for an underlying offense,
do not apply any specific offense characteristic for possession, brandishing, use, or
discharge of an explosive or firearm when determining the sentence for the
underlying offense.” 2000 Federal Sentencing Guidelines Manual, Appendix C.
However, “ . . . if a defendant is convicted of two armed bank robberies, but is
convicted under 18 U.S.C. § 924(c) in connection with only one of the robberies, a
weapon enhancement would apply to the bank robbery which was not the basis for
the 18 U.S.C. § 924(c) conviction.” Id.
In this case, Williamson was sentenced in a manner later contemplated by
amendment 599, and therefore, the district court did not abuse its discretion by
denying Williamson’s motion to modify his term of imprisonment. First,
Williamson committed two separate robberies - one of the Burger King, and the
second of the Anthony’s Pizza, and he pled guilty to both of them. Accordingly,
his argument that there should have been only one count of robbery is without
merit. Second, the district court only considered the robbery of the Burger King to
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be the crime of violence underlying Williamson’s 18 U.S.C. § 924(c) conviction.
Third, the seven-point firearm enhancement was imposed only on the counts
underlying the Anthony’s Pizza robbery, as contemplated by amendment 599.
Thus, we affirm the district court’s denial of Williamson’s motion to reduce his
sentence.
II.
When a prisoner has previously filed a § 2255 motion to vacate, he must
apply for and receive permission from us before filing a successive § 2255 motion.
See Darby v. Hawk-Sawyer, 405 F.3d 942, 944-45 (11th Cir. 2005). Such an
application to file a second or successive § 2255 motion based on Blakely and
Booker does not meet the statutory criteria since we have held that the Supreme
Court has not made Blakely or Booker retroactively applicable on collateral
review. See In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004) (Blakely); In re
Anderson, 396 F.3d 1336, 1340 (11th Cir. 2005) (Booker).
The record reveals that Williamson filed his first § 2255 motion in 1998,
which was denied as time-barred. Accordingly, the merits of his Booker claim
raised for the first time cannot be reviewed on this appeal, and the only avenue
available to Williamson is to ask our permission to file a second or successive §
2255 motion. However, such an application would be denied because we have
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held that the Supreme Court has not made Blakely or Booker retroactively
applicable on collateral review.
AFFIRMED.
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