United States v. Kerry Lee, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7311
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KERRY DONNELL LEE, JR., a/k/a Skinny,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:08-cr-00024-JPJ-7)
Submitted: February 27, 2017 Decided: March 7, 2017
Before NIEMEYER and SHEDD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Kerry Donnell Lee, Jr., Appellant Pro Se. Jennifer R.
Bockhorst, Zachary T. Lee, Assistant United States Attorneys,
Mary Kathleen Carnell, OFFICE OF THE UNITED STATES ATTORNEY,
Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kerry Donnell Lee, Jr., appeals the district court’s order
denying his 18 U.S.C. § 3582(c)(2) (2012) motion for a reduction
of his sentence. Lee sought relief under Amendment 750 and
Amendment 782 (collectively “the Amendments”) of the U.S.
Sentencing Guidelines Manual (“USSG”), both of which lowered the
base offense levels for drug offenses involving cocaine base.
See USSG § 2D1.1(c) (2015); USSG app. C, amends. 750, 782. The
district court concluded that Lee was not entitled to the
benefit of the Amendments because he was sentenced as a career
offender. Our review of the record reveals that, although Lee
qualified as a career offender, see USSG § 4B1.1 (2007), he was
not sentenced as a career offender. Nevertheless, for the
reasons that follow, we conclude that the Amendments would not
have the effect of lowering Lee’s Guidelines sentencing range.
We accordingly affirm. See United States v. Smith, 395 F.3d
516, 519 (4th Cir. 2005) (holding that we “may affirm on any
grounds apparent from the record”).
Under § 3582(c)(2), the district court may reduce the
sentence 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.” United States v.
Williams, 808 F.3d 253, 257 (4th Cir. 2015) (internal quotation
marks omitted). To determine whether a particular amendment has
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the effect of lowering a defendant’s applicable Guidelines
sentencing range, “the sentencing court must substitute only the
amendments rendered retroactive by the Commission and leave all
other guideline application decisions unaffected.” Id.
(internal quotation marks omitted). “Guidelines Amendments 750
and 782 lowered the base offense levels assigned to different
amounts of cocaine base,” and both amendments are retroactive.
United States v. Peters, 843 F.3d 572, 575 (4th Cir. 2016).
“Amendment 750 increased the minimum quantity of cocaine base
necessary to trigger the maximum base offense level [of 38] from
4.5 to 8.4 kilograms.” Id. “Amendment 782 again raised the
requisite amount of cocaine base from 8.4 to 25.2 kilograms.”
Id. Thus, “[f]or defendants responsible for at least 25.2
kilograms of cocaine base, Amendment 782 has no effect; the
maximum base offense level (38 levels) still applies.” Id.
Lee was held responsible for 51.35 kilograms of cocaine
base; thus, neither Amendment 750 nor Amendment 782 has any
effect on his base offense level. Simply stated, Lee’s sentence
was not “based on a sentencing range that has subsequently been
lowered by the Sentencing Commission.” See 18 U.S.C.
§ 3582(c)(2). Had Lee been sentenced after the Amendments went
into effect, his base offense level would remain 38, the career
offender enhancement would not apply, and his Guidelines
sentencing range would remain the same. Therefore, neither
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Amendment 750 nor Amendment 782 has the effect of lowering Lee’s
Guidelines sentencing range, and Lee is not entitled to a
sentence reduction.
Because Lee is ineligible for a sentence reduction under
§ 3582(c)(2), we affirm the district court’s denial of relief on
this alternate ground. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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