United States v. Elliott Walker

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12264 ELEVENTH CIRCUIT
November 24, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 98-00433-CR-T-24-C
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELLIOTT WALKER,
a.k.a. Earl,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 24, 2008)
Before BIRCH, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Elliott Walker appeals the district court’s denial of his motion for a reduced
sentence, brought pursuant to 18 U.S.C. § 3582(c)(2). Walker’s motion was based
on Amendment 706 to the Sentencing Guidelines, which retroactively lowered
certain base offense levels applicable to crack cocaine The district court concluded
that it was not authorized to grant a sentencing reduction because it found that
Walker was held accountable for 4.5 kilograms or more of crack cocaine at
sentencing and, therefore, Amendment 706 would not retroactively lower his
guideline range. For the reasons set forth below, we affirm.
I.
In 1998, a federal grand jury returned an indictment against Walker and
several codefendants, charging them with conspiracy to possess with intent to
distribute 50 or more grams of crack cocaine and 5 or more kilograms of cocaine,
in violation of 21 U.S.C. §§ 846 and 841(a)(1). After a jury trial, Walker was
convicted on the lone count in the indictment.
In setting out Walker’s offense conduct in the pre-sentence investigation
report (“PSI”), the probation officer stated: “It is conservatively estimated that
Elliott Walker is held accountable for 21 kilograms of cocaine base.” In
calculating Walker’s applicable guideline range, the probation officer assigned
Walker a base offense level of 38 under U.S.S.G. § 2D1.1 because he was
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responsible for “an amount of 1.5 kilograms or more” of crack cocaine. Because
Walker did not receive any enhancements or reductions, his total offense level was
38, which, coupled with a criminal history category of I, gave him an applicable
guideline range of 235 to 293 months’ imprisonment. Because he was subject to a
statutory mandatory minimum sentence of 20 years’ imprisonment, however, his
applicable guideline range became 240 to 293 months’ imprisonment.
In his objections to the PSI, Walker argued that the evidence at trial did not
support the probation officer’s drug-quantity estimate. The probation officer
responded that he believed the calculations in the PSI were accurate, stating:
Pursuant to the provisions of USSG § 2D1.1, a base offense level of
38 is assigned to an amount of cocaine base of 1.5 kilograms or more.
This was a long-term, ongoing conspiracy, and regardless of the
defendant’s actual involvement, it was reasonably foreseeable to him
that collectively all of the defendants have distributed more than 1.5
kilograms of cocaine base. . . .
Walker also argued, inter alia, that he was eligible for a two-level safety-valve
reduction under U.S.S.G. § 5C1.2.
At the sentencing hearing, defense counsel withdrew his objection with
respect to drug quantity. Significantly, the district court adopted the factual
findings and guideline calculations in the PSI, except that it found Walker eligible
for the safety-valve reduction, which reduced his total offense level from 38 to 36
and enabled the court to impose a sentence below the statutory mandatory
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minimum. Accordingly, Walker’s applicable guideline range became 188 to 235
months’ imprisonment, and the district court sentenced him to the low-end of that
range.
On March 4, 2008, Walker filed a pro se motion for a reduced sentence
under 18 U.S.C. § 3582(c)(2), arguing that the district court should reduce his
sentence because Amendment 706 retroactively lowered his guideline range. In
response, the government and the probation officer asserted that Walker was not
eligible for a sentencing reduction under § 3582(c)(2) because he was responsible
for 21 kilograms of crack cocaine and, therefore, Amendment 706 would not lower
his applicable guideline range. Adopting this position, the district court denied
Walker’s § 3582(c)(2) motion.
II.
“In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), 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). “We review de novo questions of statutory
interpretation.” United States v. Maupin, 520 F.3d 1304, 1306 (11th Cir. 2008).
Section 3582(c) provides in relevant part:
The court may not modify a term of imprisonment once it has been imposed
except that –
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...
(2) in 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) (emphasis added). The Sentencing Commission’s recently
revised policy statement on retroactive amendments to the Guidelines similarly
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) (made effective on March 3, 2008, by Amendment 712).
This policy statement emphasizes that “[a] reduction in the defendant’s term of
imprisonment is not consistent with this policy statement and therefore is not
authorized under 18 U.S.C. 3582(c)(2) if . . . [a]n 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)(B).
On November 1, 2007, the Sentencing Commission promulgated
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Amendment 706, which amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c).
U.S.S.G. App. C, Amend. 706 (2007). 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).
Before Amendment 706 took effect, a defendant received a base offense
level of 38 under § 2D1.1(c)(1) if he was held accountable for 1.5 kilograms or
more of crack cocaine; under the amended version of § 2D1.1(c)(1), however, a
defendant receives a base offense level of 38 if he is held accountable for 4.5
kilograms or more of crack cocaine. See U.S.S.G. App. C, Amend. 706 (2007).
Thus, under the amended version of § 2D1.1(c), a defendant held accountable for
at least 1.5 kilograms but less than 4.5 kilograms of crack cocaine receives a base
offense level of 36. See id.
III.
In this case, the parties principally dispute whether Walker was sentenced
“based on a range that has been subsequently lowered” by Amendment 706. 18
U.S.C. § 3582(c)(2). Walker contends that, because the sentencing court only held
him accountable for 1.5 kilograms or more of crack cocaine, his base offense level
would be reduced under the amended version of § 2D1.1.(c) from 38 to 36, thus
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lowering the guideline range upon which his sentence was based. The government
responds that Walker’s base offense level would remain 38 under the current
version of § 2D1.1(c)(1) because, by withdrawing his objection to drug quantity at
sentencing, Walker admitted to the probation officer’s finding that he was
accountable for 21 kilograms of crack cocaine.
Contrary to Walker’s argument, the sentencing court found Walker
accountable for 21 kilograms of crack cocaine. This is so because, not only did the
court adopt the probation officer’s calculation of Walker’s base offense level, it
also adopted the factual findings in the PSI, including the probation officer’s
estimate that Walker was accountable for 21 kilograms of crack cocaine.
On appeal, the only substantive challenge that Walker mounts to this factual
finding is that the government failed to meet its burden of proof that Walker was
responsible for 21 kilograms of crack cocaine. However, the district court,
operating in a § 3582(c)(2) proceeding, is bound by the factual determinations
made at sentencing. United States v. Cothran, 106 F.3d 1560, 1562-63 & n.5 (11th
Cir. 1997) (holding that the district court, in a § 3582(c)(2) proceeding, was bound
by the sentencing court’s factual determination regarding the number of marijuana
plants attributed to the defendant).1
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Furthermore, even if Walker was permitted to challenge this factual finding, we agree with
the government that he waived his ability to do so by affirmatively withdrawing his drug-quantity
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In sum, because Walker was held responsible for 4.5 kilograms or more of
crack cocaine, his base offense level would remain 38 even under the amended
version of § 2D1.1(c)(1). Thus, Walker’s sentence was not based on a range
subsequently lowered by Amendment 706 and, for this reason, the district court
lacked authority to grant him a sentencing reduction under § 3582(c)(2). See
United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008) (holding that the
district court lacked authority under § 3582(c)(2) to grant a sentencing reduction to
defendants who were career offenders sentenced under U.S.S.G. § 4B1.1 because,
while Amendment 706 would retroactively lower their base offense levels, it would
not ultimately affect their guideline ranges); accord United States v. Thomas, __
F.3d __, No. 08-11492 (11th Cir. Oct. 23, 2008) (holding the same as applied to a
defendant who was an armed career criminal sentenced under U.S.S.G. § 4B1.4).
Accordingly, we affirm the district court’s denial of Walker’s § 3582(c)(2)
motion.2
AFFIRMED.
objection at sentencing. United States v. Masters, 118 F.3d 1524, 1526 (11th Cir. 1997).
2
We also conclude that Walker’s remaining arguments, including his reliance on United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), are without merit and we
do not discuss them further.
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