United States v. Mark Tomlinson

USCA11 Case: 22-12192 Document: 18-1 Date Filed: 03/14/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12192
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK TOMLINSON,
a.k.a. Supa,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:10-cr-00521-TCB-AJB-4
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2 Opinion of the Court 22-12192
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Before ROSENBAUM, JILL PRYOR, and LAGOA, Circuit Judges.
PER CURIAM:
Mark Tomlinson, a federal prisoner proceeding pro se, ap-
peals the district court’s denial of his motion for a sentence modifi-
cation under 18 U.S.C. § 3582. Because no statute or rule permitted
a modification of Tomlinson’s sentence, we affirm.
I.
In 2014, a jury found Tomlinson guilty of conspiracy to pos-
sess with intent to distribute MDMA, BZP, and marijuana, in vio-
lation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C), and (b)(1)(D). He
was acquitted of the substantive offenses of possessing with intent
to distribute cocaine, BZP, and MDMA.
At sentencing in 2015, the district court found, based in part
on acquitted conduct, that Tomlinson was responsible for 968.4
grams of cocaine, 168 pounds of marijuana, 148,539 BZP pills, and
$104,080 in drug proceeds. Using the Guidelines Manual’s drug
equivalency table, the court converted these amounts to equiva-
lent amounts of marijuana, yielding a total of roughly 4,000 kilo-
grams. That total quantity triggered a base offense level of 32.
In addition, the district court applied five sentencing en-
hancements—for possessing a gun, maintaining a drug premises,
committing the offense as part of a pattern of activity engaged in as
a livelihood, being an organizer or leader, and obstructing justice—
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22-12192 Opinion of the Court 3
which increased the total offense level to 42. Combined with a
criminal history category of I, this yielded a guideline imprison-
ment range of 360 months to life, which was reduced to 240
months because of the statutory maximum.
The district court sentenced Tomlinson to 192 months of
imprisonment. We affirmed his conviction on appeal. United
States v. Tomlinson, 674 F. App’x 892 (11th Cir. 2017). The district
court later denied a 28 U.S.C. § 2255 motion alleging ineffective
assistance of counsel.
In June 2022, Tomlinson filed a pro se motion for a sentence
reduction under 18 U.S.C. §3582(c)(1)(B) and (c)(2), claiming that
the district court had miscalculated his guideline range. He as-
serted that the court violated his Fifth and Sixth Amendment rights
by exceeding the jury’s drug-quantity findings and by applying the
five sentencing enhancements.
The district court denied the motion, finding no grounds to
grant Tomlinson relief from his sentence. The court explained that
§ 3582(c)(1)(B) was not an independent basis for relief and that no
retroactive guideline amendment permitted a sentence reduction
under § 3582(c)(2). Rather, Tomlinson’s constitutional arguments,
the court explained, were cognizable only on collateral review un-
der 28 U.S.C. § 2255, but any such motion “would be denied as an
unauthorized second or successive § 2255 motion.” This appeal
followed.
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4 Opinion of the Court 22-12192
II.
We review de novo whether a district court had the author-
ity to modify a term of imprisonment. United States v. Jones, 962
F.3d 1290, 1296 (11th Cir. 2020). The court “has no inherent au-
thority to modify a sentence; it may do so only when authorized
by a statute or rule.” United States v. Puentes, 803 F.3d 597, 606
(11th Cir. 2015).
Section 3582(c) permits a district court to modify a sentence
in three circumstances: (1) when warranted by “extraordinary and
compelling reasons” or the defendant’s age; (2) when the sentence
is “based on a sentencing range that has subsequently been low-
ered” by a retroactive amendment to the guidelines; and (3) when
“otherwise expressly permitted by statute or by Rule 35 of the Fed-
eral Rules of Criminal Procedure.” See 18 U.S.C. § 3582(c).
We agree with the district court that none of these condi-
tions apply. First, Tomlinson’s asserted guideline errors do not
qualify as extraordinary and compelling reasons for early release,
and he does not meet the age-based release requirements. See id.§ 3582(c)(1)(A); U.S.S.G. § 1B1.13.
Second, no retroactive amendment applies to reduce Tom-
linson’s guideline range. See 18 U.S.C. § 3582(c)(2). Tomlinson
was sentenced in April 2015, after the effective date of Amendment
782, the last retroactively applicable amendment to the drug-quan-
tity guideline. See U.S.S.G. § 1B1.10(d). So he already has received
the benefit of that amendment. Had he been sentenced today for
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22-12192 Opinion of the Court 5
a converted drug quantity of 4,000 kilograms, the base offense level
would still be 32. See U.S.S.G. § 2D1.1(a)(5), (c)(4). Because no
retroactive amendment is applicable or has “the effect of lowering
the defendant’s applicable guideline range,” no reduction was per-
mitted under § 3582(c)(2). See id. § 1B1.10(a)(2).
Third, the residual category—when “otherwise expressly
permitted by statute or by Rule 35”—does not by itself authorize
any relief. See 18 U.S.C. § 3582(c)(1)(B). Rather, Tomlinson still
must identify a statute or rule that permits a modification. Rule 35
does not apply here because (a) Tomlinson did not raise a clerical
or clear error within fourteen days of the sentence, and (b) the gov-
ernment has not filed a motion based on substantial assistance. See
Fed. R. Crim. P. 35. Nor does Tomlinson identify any other statute
that would permit relief.
Finally, while Tomlinson’s constitutional claims may be
cognizable on collateral review under 28 U.S.C. § 2255, the district
court lacked jurisdiction to consider those claims without Tomlin-
son’s obtaining of prior authorization from this Court to file a sec-
ond or successive § 2255 motion. See 28 U.S.C. § 2255(h).
For these reasons, the district court correctly concluded that
it lacked the authority to modify Tomlinson’s sentence. Because
no sentence modification was authorized, the court did not need
to consider the 18 U.S.C. § 3553(a) sentencing factors. We affirm
the denial of Tomlinson’s § 3582(c) motion.
AFFIRMED.