United States v. Michael Joseph Smith

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 3, 2008
No. 08-11623 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00123-CR-ORL-18GJK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL JOSEPH SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 3, 2008)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Michael Smith, a federal prisoner convicted of a crack cocaine offense,
appeals pro se the district court’s denial of his 18 U.S.C. § 3582 motion for
reduction of sentence based on an amendment to U.S.S.G. § 2D1.1 that lowered the
base offense levels applicable to crack cocaine offenses. Smith was convicted of
possession with intent to distribute 5 grams or more of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and possession with intent to distribute
50 grams or more of crack cocaine, in violation of § 841(a)(1) and (b)(1)(A)(iii).
Smith was subject to a 120-month statutory mandatory minimum sentence, based
on a prior felony drug conviction, making his guideline range 120 to 121 months’
imprisonment. Prior to sentencing, the government filed a motion, pursuant to
U.S.S.G. § 5K1.1, requesting the district court to depart from the mandatory
minimum sentence based on Smith’s substantial assistance, and the court granted
this motion and sentenced Smith to 60 months’ imprisonment.
On appeal, Smith contends that, after applying a two-level reduction, his
amended guideline range was 120 months’ imprisonment, based on the statutory
mandatory minimum, which was lower than the original guideline range of 120 to
121 months’ imprisonment, and therefore, the guideline range had been lowered,
such that he met the eligibility requirement of both § 3582(c) and U.S.S.G.
§ 1B1.10. Smith also argues that: (1) he was entitled to a “comparable reduction”
in his amended guidelines sentence to reflect the original downward departure; (2)
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the Sentencing Commission’s “Analysis of the Impact of the Crack Amendment if
Made Retroactive” report that was issued on October 3, 2007, evidences the
Commission’s intent that Amendment 706 apply to those who had received
sentences below the statutory mandatory minimum due to substantial assistance;
(3) the mandatory minimum sentence was “dispensed with” upon the government’s
§ 5K1.1 motion; and (4) the ambiguity in § 1B1.10 invokes the rule of lenity,
which means that he should receive the benefit of the amendment.
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, where the issue presented involves a legal
interpretation, review is de novo. United States v. Pringle, 350 F.3d 1172, 1178
(11th Cir. 2003). Although a district court generally cannot modify a term of
imprisonment once it has been imposed, an exception lies in § 3582(c)(2), where:
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 [18 U.S.C. § 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). A reduction of a term of imprisonment
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is not “consistent with applicable policy statements issued by the Sentencing
Commission” – and is, therefore, not authorized under § 3582(c)(2) – if the
retroactive amendment does not have the effect of lowering the defendant’s
applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B). Pursuant to U.S.S.G.
§ 5G1.1(b), “[w]here a statutorily required minimum sentence is greater than the
maximum of the applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b) (emphasis added).
Amendment 706, which reduced the offense levels in crack cocaine cases
calculated pursuant to § 2D1.1(c) by two levels, became effective November 1,
2007. See U.S.S.G. App. C, Amend. 706 (2007). The Amendment was made
retroactive as of March 3, 2007, by incorporation into U.S.S.G. § 1B1.10(c). See
U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008).1 Although the retroactive
effect of Amendment 706 allows a defendant whose guideline imprisonment range
was determined in accordance with the offense level calculations under § 2D1.1 to
seek a reduction in his sentence, a defendant whose original sentence ultimately
was based on something other than the offense level calculation under § 2D1.1 is
precluded from receiving a sentence reduction because the amendment does not
1
The March 1, 2008 Supplement has been superceded by the May 1, 2008 Supplement and,
when used with the 2007 Manual, constitutes the operative Guidelines Manual effective May 1,
2008. See U.S.S.G. Cover (Supp. May 1, 2008).
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have the effect of lowering the applicable guideline range. See U.S.S.G.
§ 1B1.10(a)(2)(B). This occurs where, as here, the defendant was sentenced to a
statutory mandatory minimum sentence. See U.S.S.G. § 1B1.10, comment.
(n.1(A)) (noting that defendant is not eligible for reduction, even if amendment is
listed in subsection (c), if “the amendment does not have the effect of lowering the
defendant’s applicable guideline range because of the operation of another
guideline or statutory provision (e.g., a statutory mandatory minimum term of
imprisonment).”); see also United States v. Black, 523 F.3d 892, 892-93 (8th Cir.
2008) (persuasive authority) (affirming the district court’s denial of § 3582 motion
because defendant was sentenced in accordance with the statutory mandatory
minimum sentence, and courts are not authorized to sentence below statutory
minimum sentences).
Section 5K1.1 of the Sentencing Guidelines provides that a court may depart
from the Guidelines “[u]pon motion of the government stating that the defendant
has provided substantial assistance in the investigation or prosecution of another
person who has committed an offense.” The commentary elaborates that a
defendant’s substantial assistance “may justify a sentence below a statutorily
required minimum sentence.” U.S.S.G. § 5K1.1, comment. (n.1).
On September 5, 2008, we issued our first published decision regarding the
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application of Amendment 706, in United States v. Moore, No. 08-11230, man. op.
(11th Cir. Sept. 5, 2008). Moore, one of five defendants in the consolidated appeal
from the district court’s denial of each defendant’s § 3582 motion, was originally
sentenced as a career offender under U.S.S.G. § 4B1.1. Id. at 4-5. Prior to his
original sentencing, however, the government filed a downward departure motion,
pursuant to § 5K1.1 and § 3553(a), based on Moore’s substantial assistance, and
the court granted the motion and sentenced Moore below the statutory minimum
sentence that applied as a result of his career offender status. Id. at 5. The district
court denied Moore’s § 3582 motion, and we affirmed, finding that, “[b]y its terms,
the statute applies to a defendant whose sentence was ‘based on’ a subsequently-
lowered ‘sentencing range[,]’” and because Moore’s sentence was based on the
guideline range applicable to career offenders under § 4B1.1, Amendment 706 did
not affect his base offense level and would not lower the sentencing range upon
which his sentence was based. Id. at 10.
On appeal, Moore contended that he was eligible for a sentence reduction
because he received a downward departure, and thus, he was not sentenced within
the career offender guidelines. Id. at 14. We held that, because there was no
indication that the sentencing court based Moore’s sentence on the guideline range
that would have applied absent the career offender designation, there was no basis
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on which to conclude that the reduction in his base offense level lowered the
sentencing range relied upon by the court in determining his sentence. Id. at 17.
Accordingly, we held, “[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 18.
Because, despite the substantial assistance departure that was determined
after the applicable guideline range was calculated, Smith was sentenced “based
on” the applicable statutory mandatory minimum term of imprisonment – resulting
in a sentence that ultimately was based on something other than the offense level
calculation under U.S.S.G. § 2D1.1 – he was precluded from receiving a sentence
reduction under § 3582. See Moore, No. 08-11230, man. op. at 10. Furthermore,
because Smith was not eligible for a sentence reduction, we do not need to address
his remaining arguments. Accordingly, we affirm.
AFFIRMED.
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