United States v. Hector Roy Watson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15194 ELEVENTH CIRCUIT
MAY 12, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D. C. Docket No. 06-00046-CR-FTM-29DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR ROY WATSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 12, 2010)
Before BIRCH, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Hector Roy Watson, pro se, appeals the district court’s denial of his 18
U.S.C. § 3582(c)(2) motion for a sentence reduction pursuant to Amendments 706
and 709 to the Sentencing Guidelines. After review of the record and the parties’
briefs, we AFFIRM.
I. BACKGROUND
Watson pled guilty in 2006 to two counts of possession with intent to
distribute five grams or more of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(iii). See R1-1, 33, 34; R4 at 5. The probation officer
who prepared the presentence investigation report (“PSI”) assigned Watson a base
offense level of 26, pursuant to U.S.S.G. § 2D1.1, but enhanced his offense level
to 34, pursuant to U.S.S.G. § 4B1.1(b)(B), after determining that Watson, who had
three prior felony convictions for “crimes of violence,” was a career offender.1
After subtracting three levels for acceptance of responsibility, Watson’s total
adjusted base offense level was 31. Based on his career offender status, Watson’s
criminal history category was determined to be VI, yielding an advisory guidelines
range of 188 to 235 months of imprisonment.
At sentencing, Watson challenged his career offender designation on the
grounds that his three prior state convictions, which he argued were part of a
1
Walter had two prior state felony convictions for aggravated assault with a deadly
weapon and one prior conviction for aggravated assault.
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common course of conduct that occurred without an intervening arrest, should
have been counted as a single conviction for enhancement purposes. R3 at 15-18,
23. The district court rejected Watson’s argument, finding that his prior
convictions were separate because they: (1) did not occur on the same occasion;
(2) were not part of a single, common scheme or plan; and (3) were not
functionally consolidated for sentencing, even though Watson was sentenced on
the same day for all three convictions. Id. at 23-25. The district court nevertheless
determined that Watson’s improved behavior after his release on bond indicated
that he was amenable to rehabilitation and varied downward to impose 120-month
sentences for each count, to run concurrently. See R2 at 93-97. We affirmed
Watson’s sentences on direct appeal. See R1-53.
Watson thereafter filed a § 3582(c)(2) motion for a sentence reduction based
on Amendment 706 to the Sentencing Guidelines. See R1-59. The district court
denied the motion, finding that Amendment 706 was inapplicable because
Watson’s sentences were based on his career offender designation under § 4B1.1
and not on a drug quantity determined under § 2D1.1. R1-60 at 2-3. Watson
moved for reconsideration, arguing that his three underlying predicate offenses
were “related” and, pursuant to Amendment 709, should not have been considered
separately for purposes of the career offender enhancement. R1-61 at 1-3. The
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district court denied Watson’s motion for reconsideration, and this appeal
followed. R1-62, 63.
II. DISCUSSION
We “review de novo a district court’s 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).
On appeal, Watson argues that, in denying his § 3582 motion for reduction
of sentence based on Amendment 706, the district court should have reconsidered
his career offender designation in light of Amendment 709, which requires district
courts, when assessing a defendant’s criminal history, to treat as a single sentence
all prior sentences that were imposed on the same day. See U.S.S.G. § 4A1.2(a)(2)
(Nov. 1, 2007). He asserts that application of Amendment 709 would have
resulted in his three prior state convictions being counted as only one predicate
offense for career offender purposes. Watson also argues that if Amendment 709
were applied to nullify his career offender status, then he would be entitled to a
sentence reduction by virtue of Amendment 706.
Section 3582(c)(2) grants district courts the discretion to reduce a
previously imposed sentence “if such a reduction is consistent with the applicable
policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
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The relevant policy statement on retroactive reduction of sentences provides that a
sentence reduction is authorized under § 3582(c)(2) only where the applicable
guideline range was lowered as a result of an amendment to the Guidelines
Manual enumerated under § 1B1.10(c).2 See U.S.S.G. § 1B1.10(a); United States
v. Pelaez, 196 F.3d 1203, 1205, n.3 (11th Cir. 1999) (holding that only the
amendments listed in § 1B1.10(c) may be applied retroactively using a
§ 3582(c)(2) motion). Therefore, a reduction in the defendant’s term of
imprisonment is not consistent with this policy statement and is not authorized
under § 3582(c)(2) if (a) none of the amendments listed in subsection (c) is
applicable to the defendant; or (b) an amendment listed in subsection (c) does not
have the effect of lowering the defendant’s applicable guideline because of the
operation of another guideline or statutory provision (e.g., a statutory mandatory
minimum term of imprisonment). U.S.S.G. § 1B1.10, comment. (n.1).
We readily reject Watson’s argument that the district court erred in failing
to reduce his sentences based on Amendment 709, as that amendment is not
among those listed in § 1B1.10(c) as retroactively applicable. To the extent
Watson asserts that he was entitled to a sentence reduction based on Amendment
2
The following amendments are listed under U.S.S.G. § 1B1.10(c) as retroactively
applicable: 126, 130, 156, 176, 269, 329, 341, 371, 379, 380, 433, 454, 461, 484, 488, 490, 499,
505, 506, 516, 591, 599, 606, 657, 702, 706 as amended by 711, and 715. U.S.S.G. § 1B1.10(c).
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706, his argument is foreclosed by our decision in United States v. Moore, 541
F.3d 1323, 1327-28 (11th Cir. 2008), cert. denied, McFadden v. United States,
129 S. Ct. 965, and cert. denied, 129 S. Ct. 1601 (2009) (holding that a defendant
whose sentence is based on his status as a career offender under § 4B1.1 is not
entitled to § 3582(c)(2) relief because Amendments 706 and 713 do not lower the
applicable guideline range for a career offender). Accordingly, the judgment of
the district court is AFFIRMED.
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