United States v. Mario Anton Lee

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13698
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ANTON LEE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:00-cr-00347-LSC-JHE-1
____________________
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2 Opinion of the Court 20-13698
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Mario Lee, a federal prisoner proceeding pro se, appeals the
district court’s order denying his “Petition For Recall Mandate” re-
garding his motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2) and Amendment 782 of the Sentencing Guidelines. On
appeal, Mr. Lee argues that the district court previously erred by
not reducing his sentence further after erroneously calculating his
new offense level. Even accepting Mr. Lee’s proposed total offense
level, his guideline range remains unchanged. The district court’s
calculation and sentence within this guideline range was not error.
Accordingly, we affirm. 1
I
In 2001, a federal jury convicted Mr. Lee of one count each
of conspiracy to distribute cocaine and cocaine base, in violation of
21 U.S.C. §§ 841(a)(1), 846; possession with intent to distribute her-
oin, in violation of 21 U.S.C. § 841(a)(1); possession with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1); and three
counts of money laundering, in violation of 18 U.S.C. §
1956(a)(1)(A)(i).
1We assume the parties’ familiarity with the facts and procedural history and
set out only what is necessary to explain our decision. As to issues not dis-
cussed, we summarily affirm.
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20-13698 Opinion of the Court 3
A
Mr. Lee’s presentence investigation report (PSI) held him re-
sponsible for 105 kilograms of cocaine, 7 kilograms of cocaine base,
1 kilogram of heroin, and 8 pounds of marijuana. Following multi-
count aggregation calculations under U.S.S.G. § 3D1.2(d), the pro-
bation officer found that Mr. Lee was responsible for a total of
162,362.88 kilograms of marijuana equivalent, resulting in a base
offense level of 38. Next, the probation officer applied a two- level
enhancement under U.S.S.G. § 2D1.1(b)(1) for the possession of a
firearm during the offense. The probation officer noted that Mr.
Lee was acquitted of this charge at trial, but explained that under
U.S.S.G. § 1B1.3, possession of the firearm could still be considered
in determining his offense level. The probation officer also applied
a four-level increase under U.S.S.G. § 3B1.1(a) because he was an
organizer or leader of the criminal activity. After the enhance-
ments, Mr. Lee’s adjusted offense level was 44, which the PSI
treated as 43. Based on a total offense level of 43 and a criminal
history category of III, Mr. Lee’s guideline range was life imprison-
ment.
At sentencing, the district court adopted the PSI’s guideline
calculations but sentenced Mr. Lee to a total of 105 years’ impris-
onment. Mr. Lee challenged on direct appeal the two-level sen-
tencing enhancement for possession of a firearm based on his ac-
quittal at trial for possessing a firearm in furtherance of a drug-traf-
ficking crime. We affirmed his convictions and total sentence in
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4 Opinion of the Court 20-13698
2002. See United States v. Miller, 45 F. App’x 877 (11th Cir. 2002)
(unpublished). 2
In 2013, Mr. Lee filed a petition to vacate his sentence based
“upon the intervening changes to the law’s treatment of crack co-
caine.” He argued that the Fair Sentencing Act reduced the pun-
ishment for crack cocaine offenses and that he should be resen-
tenced in light of the “incredibly harsh sentence he received at
trial.” The district court denied Mr. Lee’s motion, which it con-
strued as brought under 18 U.S.C. § 3582, but noted that under the
revised Sentencing Guidelines, which were amended pursuant to
the Fair Sentencing Act, the conversion of cocaine base to mariju-
ana equivalent resulted in a lower marijuana equivalent drug quan-
tity. Using the applicable November 2011 edition of the Sentencing
Guidelines, the district court concluded that Mr. Lee’s converted
marijuana equivalent was reduced to 47,857 kilograms of mariju-
ana, which produced a base offense level of 38, leaving his base of-
fense level unchanged from the initial sentencing. He was there-
fore ineligible for a sentence reduction under 18 U.S.C. § 3582 or
based on the Fair Sentencing Act.
2 Mr. Lee filed several post-conviction challenges.
In 2003, he moved to vacate
his convictions and total sentence under 28 U.S.C. § 2255. The district court
denied his § 2255 motion on the merits and declined to issue a certificate of
appealability (COA).
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20-13698 Opinion of the Court 5
B
Relevant to this appeal, in September 2017, Mr. Lee filed a
pro se motion to reduce his total sentence under 18 U.S.C. §
3582(c)(2) based on Amendment 782 to the Sentencing Guidelines.
He argued that Amendment 782 applied to him retroactively and
reduced by two levels the base offense levels in U.S.S.G. § 2D1.1(c).
He asserted that his amended guideline range after application of
Amendment 782 was 360 months to life imprisonment. He noted
that his total offense level would be 42 and asked the district court
to resentence him to a total of 300 months’ imprisonment.
The government responded, agreeing that Mr. Lee was eli-
gible for a sentence reduction. The government concurred with
Mr. Lee that his base offense level would change from 38 to 36 after
application of Amendment 782 and that his guideline range would
change to 360 months to life imprisonment. The government
asked the district court to consider Mr. Lee’s involvement in two
violent offenses prior to his incarceration for the present convic-
tions and his history of prison disciplinary incidents while incarcer-
ated. Accordingly, it recommended that any reduced total sen-
tence should be above the low end of the amended guideline range.
Mr. Lee filed a notice stating that he agreed with the government’s
position that he was eligible for a sentence reduction and requested
a 360-month total sentence.
In 2019, the district court granted Mr. Lee’s § 3582(c)(2) mo-
tion without holding a hearing and reduced his total sentence to
360 months’ imprisonment. In so ruling, the district court
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6 Opinion of the Court 20-13698
explained that it considered the sentencing factors in 18 U.S.C. §
3553(a), particularly the nature and seriousness of any danger that
Mr. Lee might present to the community, the PSI, its prior judg-
ment and statement of reasons, and Mr. Lee’s post-sentencing con-
duct. The district court calculated his amended total offense level
as 42 and his amended guideline range as 360 months to life.
Despite receiving a reduction, Mr. Lee appealed and argued
for the first time that the district court should have conducted a
hearing because it miscalculated his amended guideline range. Mr.
Lee argued that the district court erred when it reduced his drug
quantity to 47,857 kilograms of marijuana equivalent but left his
base offense level at 38. He claimed that his base offense level
should have been 34-36. Then he argued that his sentence reduc-
tion pursuant to Amendment 782 should have placed him at a base
offense level of 32-34. Mr. Lee also raised several other issues,
which he did not present in his § 3582 motion in the district court.
Specifically, he argued that his § 2255 proceeding should be reo-
pened, raised ineffective assistance of counsel claims, argued that
his sentence exceeded the statutory maximum in 21 U.S.C. §
841(b), noted the 800 pounds of marijuana listed in his PSI, and as-
serted that the drug types and quantities were not in his indictment
or proven beyond a reasonable doubt. We affirmed and concluded
that Mr. Lee was not entitled to a hearing under 18 U.S.C. § 3582(c).
See United States v. Lee, 820 F. App’x 998, 999 (11th Cir. 2020) (Lee
I). We noted Mr. Lee’s attempts to present arguments on appeal
that were not raised below and “to attack his conviction and prior
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20-13698 Opinion of the Court 7
sentencing determinations” and stated that “such challenges are
not cognizable through a § 3582(c) motion.” Id. (citing United
States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000)).
In August of 2020, Mr. Lee, once again proceeding pro se,
filed a self-styled “true” Rule 60(b)(6) motion under the Federal
Rules of Civil Procedure in his criminal case. He sought to reopen
his initial § 2255 proceeding, arguing, among other things, that the
government erroneously attributed 800 pounds of marijuana to
him during his original sentencing. Mr. Lee attached to his Rule
60(b)(6) Motion a separate motion requesting compassionate re-
lease under 18 U.S.C. § 3582 based on the spread of COVID-19.
Additionally, Mr. Lee filed a self-styled “Petition For Recall
Mandate,” relating to the district court’s ruling on his 2013 motion
for a sentence reduction. He asserted that, although the district
court reduced his attributable drug quantity to 47,857 kilograms of
marijuana equivalent, it did not reduce his total sentence appropri-
ately because it assigned him an offense level of 38 rather than 36.
He argued that this error was plain and that he should be brought
before the court for it to be corrected.
In September 2020, the district court, without requiring a re-
sponse from the government, entered an omnibus order resolving
Mr. Lee’s three motions. As to Mr. Lee’s motion to “recall” the
“mandate” or otherwise have his total sentence reduced further,
the district court stated that it had already applied the subsequent
changes to the guidelines to Mr. Lee’s reduced sentence. The dis-
trict court determined that his assertion that it miscalculated his
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8 Opinion of the Court 20-13698
offense level was without merit because in 2000, when Mr. Lee was
originally tried, the base offense level for the quantity of drugs at-
tributable to him was 38. The Sentencing Commission’s 2-level
reduction for drug crimes reduced Mr. Lee’s base offense level
from 38 to 36, but the 6 levels of increases for his leadership role
and use of a firearm brought his offense level back up to a 42, “ex-
actly the level he was resentenced at in 2019.” D.E. 355 at 9. Thus,
the district court concluded that Mr. Lee’s claim that it miscalcu-
lated his offense level was without merit and his motion was de-
nied.
Mr. Lee filed separate notices of appeal challenging the dis-
trict court’s order as to his motion for a sentence reduction and his
Rule 60(b)(6) motion. We docketed both notices of appeal in the
instant proceeding as appeal No. 20-13698. The government
moved this Court for summary affirmance.
We granted the government’s motion for summary affir-
mance in part as to the denials of his Rule 60(b)(6) Motion and his
motion for compassionate release. But we denied the govern-
ment’s motion for summary affirmance as to the district court’s de-
nial of Mr. Lee’s § 3582(c)(2) motion. We concluded that, even
though the government may have been right that his present argu-
ments were barred by the law-of-the-case doctrine, it was not so
clearly right that summary affirmance was appropriate. 3
3The government again argues that the law-of-the-case doctrine bars us from
considering Mr. Lee’s motion because we implicitly rejected this same argu-
ment in our decision in Lee I, 820 F. App’x at 999. Because we affirm the
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20-13698 Opinion of the Court 9
Now we must decide whether the district court erroneously
calculated the applicable guideline range when it granted Mr. Lee’s
reduction under § 3582(c)(2).
II
“We review the district court's interpretation of the Sentenc-
ing Guidelines de novo and accept its factual findings unless clearly
erroneous.” United States v. Barner, 572 F.3d 1239, 1247 (11th Cir.
2009).
III
A district court may only modify a term of imprisonment in
certain situations, including when the 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). A de-
fendant is eligible for a sentence reduction under § 3582(c)(2) only
when an amendment listed in U.S.S.G. § 1B1.10(d) retroactively
lowers his guideline range that was calculated by the sentencing
court. See U.S.S.G. § 1B1.10, comment. (n.1(A)); United States v.
Armstrong, 347 F.3d 905, 909 (11th Cir. 2003). Any reduction must
be consistent with the Sentencing Commission’s policy statements.
See § 1B1.10, comment. (n.1(A)).
A § 3582(c)(2) proceeding does “not constitute a full resen-
tencing of the defendant.” § 1B1.10(a)(3). When the district court
district court’s denial of Mr. Lee’s motion on the merits, we do not revisit—
nor opine on—this argument again here.
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10 Opinion of the Court 20-13698
considers a § 3582(c)(2) motion, it must first recalculate the guide-
line range under the amended Sentencing Guidelines. See Bravo,
203 F.3d at 780. In calculating the new range, the district court
must implement the Guideline amendment but “leave all other
guideline application decisions unaffected.” § 1B1.10(b)(1). It
“may not enter any new finding that is inconsistent with a finding
it made in the original sentence proceeding.” United States v.
Hamilton, 715 F.3d 328, 340 (11th Cir. 2013). Nor may it consider
“extraneous resentencing issues” that belong in a proceeding under
28 U.S.C. § 2255. See Bravo, 203 F.3d at 782. Unless the defendant
provided substantial assistance, any reduction may not be less than
the low end of the amended guideline range. See § 1B1.10(b)(2)(A).
Amendment 750, made effective on November 1, 2011, re-
vised the crack cocaine quantity tables to conform to the Fair Sen-
tencing Act. See U.S.S.G. App. C, Amend. 750. These changes
lowered the drug quantities attributable to defendants after con-
version to the marijuana equivalent. Compare U.S.S.G. § 2D1.1,
comment. (n.10(E)) (2010) with U.S.S.G. § 2D1.1, comment.
(n.10(D)) (2011). Amendment 750 did not change the base offense
level assigned to the attributable drug quantities. See U.S.S.G. App.
C, Amend. 750; U.S.S.G. § 2D1.1(c).
Amendment 782, made effective on November 1, 2014, re-
vised the Drug Quantity Table in § 2D1.1(c), and in pertinent part,
provided a two-level reduction in the base offense level for con-
trolled substance offenses. See U.S.S.G. App. C, Amend. 782;
U.S.S.G. § 1B1.10(d). Specifically, Amendment 782 revised the base
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20-13698 Opinion of the Court 11
offense levels that corresponded to attributable drug quantities so
that, as of November 1, 2014, at least 30,000 kilograms, but less
than 90,000 kilograms of marijuana, resulted in a base offense level
of 36, while a base offense level of 90,000 or more kilograms re-
sulted in a base offense level of 38. See U.S.S.G. App. C, Amend.
782; § 2D1.1(c). Amendment 782 did not alter other enhancements
that applied based on the specific characteristics of a defendant’s
offense conduct. See United States v. Melton, 861 F.3d 1320, 1323
(11th Cir. 2017).
Mr. Lee correctly contends that Amendment 782 reduced
his drug-equivalent quantities from 162,362.88 kilograms of mari-
juana to 47,359.88 kilograms, making his base offense level 36 ra-
ther than 38. See Appellant’s Br. at 5. See also U.S.S.G. §
2D1.1(c)(2). He also concedes that he is subject to a 6-point en-
hancement— “4 [points] for the leadership role and . . . 2 points for
the firearm.” Appellant’s Br. at 5. Thus, his total offense level
would be 42, the exact total offense level the district court found.
See D.E. 355 at 8–9.
To get to a lower number, Mr. Lee seems to make his own
miscalculations. He argues that despite the 6-point enhancement,
his total offense level should be 40. He comes to this conclusion
by starting from an incorrect base offense level. Mr. Lee contends
that his base level offense should be 34 because Amendment 782
reduces his base level offense by 2 points. So, he thinks that the
drug-equivalent quantities recalculation (reducing 162,362.88 kilo-
grams of marijuana to 47,359.88 kilograms) puts his base offense
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12 Opinion of the Court 20-13698
level at 36 and then Amendment 782 subtracts an additional 2 lev-
els, putting him at 34. With the 6-point enhancement, that in-
creases his total offense level to 40, rather than 42. But the base
offense level of 36 already reflects the two-point reduction under
Amendment 782. Mr. Lee arrives at a total offense level of 40 by
double-counting the effect of the guidelines reduction.
Even if we accept Mr. Lee’s erroneous claim that his total
offense level is 40 rather than 42, his guideline range would remain
unchanged. If Mr. Lee has a total offense level of 40, his criminal
history category III would still place him in the guidelines range of
360 months’ imprisonment to life. See U.S.S.G. Ch. 5, Sentencing
Table. Notably, this range is the same range Mr. Lee asked the
district court to apply in his pro se motion, see D.E. 34 at 4, which
his subsequently assigned Federal Public Defender agreed was the
applicable range. See D.E. 345 at 1 (“The FPD . . . agrees with the
government that the revised guideline range[ ] [is] 360 months [to]
Life[.]”). We therefore find no error in the district court’s calcula-
tions of the guidelines range.
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20-13698 Opinion of the Court 13
IV
For the reasons set forth above, we affirm the district court's
denials of Mr. Lee’s motion.
AFFIRMED. 4
4 Inhis “Petition For Leave To Amend Reply Brief To Clarify/Amplify In The
Interest Of Justice,” which we construe as a motion for leave to amend his
reply brief, Mr. Lee argues that the district court’s conclusion that a converted
drug weigh of 47,857 kilograms resulted in a base level offense of 38 was
clearly erroneous. But as we’ve explained, accepting Mr. Lee’s proposed base
level offense does not change his ultimate guideline range. Accordingly, that
motion is DENIED. Mr. Lee’s “Petition For Oral Arguments In The Interest
Of Justice Pursuant To Fed. R. App. P. 34(a)(2)(c),” which we construe as a
motion for oral argument, is also DENIED.