United States v. James Knox, III

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0465n.06
No. 09-5336 FILED
Aug 02, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA )
)
Plaintiff–Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF KENTUCKY
JAMES D. KNOX, III, )
)
OPINION
Defendant–Appellant. )
_______________________________________)
Before: BOGGS, SILER, and MOORE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. James D. Knox, III, appeals the district
court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c), which allows
for the modification of a term of imprisonment that was “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c). The district court
concluded that Knox was ineligible for a sentence reduction based on recent amendments to the
crack-cocaine Guideline because Knox was sentenced as a career offender. For the following
reasons, we AFFIRM the judgment of the district court.
On June 26, 2006, Knox entered a plea agreement pursuant to Federal Rule of Criminal
Procedure 11 in which he pleaded guilty to (1) one count of conspiracy to possess with the intent to
distribute five grams or more of crack cocaine in violation of 21 U.S.C. § 846 and
§ 841(b)(1)(B)(iii); (2) two counts of possession with the intent to distribute crack cocaine in
No. 09-5336
United States v. Knox, III
violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C); (3) one count of aiding and abetting in the
possession with the intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C.
§ 841(a)(1), § 841(b)(1)(B)(iii), and 18 U.S.C. § 2; and (4) one count of aiding and abetting in the
possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1),
§ 841(b)(1)(D), and 18 U.S.C. § 2. Under the relevant terms of the plea agreement, the Government
agreed to “recommend a sentence of imprisonment at the lowest end of the applicable Guideline
Range, but not less than any mandatory minimum” and to “not oppose a reduction of 3 levels below
the otherwise applicable Guideline for ‘acceptance of responsibility.’” Dist. Ct. Docket (“Doc.”) 61
at 4 (Plea Agreement).
According to the Presentence Investigation Report (“PSR”), which used the 2005 edition of
the U.S. Sentencing Guidelines Manual, Knox’s base offense level under U.S.S.G. § 2D1.1(a)(3) was
twenty-six, and with an additional two-level enhancement for the possession of a firearm, Knox’s
adjusted offense level was twenty-eight. Following a three-level reduction for acceptance of
responsibility, Knox’s total offense level was twenty-five. Notwithstanding this calculation,
however, because Knox was classified as a career offender pursuant to U.S.S.G. § 4B1.1 and the
Government had filed notice to seek an enhanced sentence under 21 U.S.C. § 851, the PSR
calculated Knox’s base offense level at thirty-seven. Subtracting three levels for acceptance of
responsibility, Knox’s total offense level then became thirty-four. Given Knox’s status as a career
offender, his Criminal History Category was VI, and based on these calculations, the resulting
recommended Guidelines range was 262 to 327 months’ imprisonment.
2
No. 09-5336
United States v. Knox, III
Prior to sentencing, the Government moved to withdraw its notice of intent to seek an
enhanced sentence under 21 U.S.C. § 851, and Knox’s base offense level under the career-offender
Guideline was thus reduced to thirty-four. Again, with acceptance of responsibility, Knox’s total
offense level was further lowered to thirty-one. Although his Criminal History Category remained
unaffected because of his career-offender status, Knox’s Guideline range was now 188 to 235
months’ imprisonment. The district court ultimately sentenced Knox to 188 months, and Knox did
not appeal his conviction or sentence.
Following the imposition of Knox’s sentence, the Sentencing Commission adopted
Amendment 706 to the U.S. Sentencing Guidelines, which lowered the base offense level of most
crack-cocaine-based offenses sentenced pursuant to U.S.S.G. § 2D1.1 by two levels. United States
v. Bridgewater, 606 F.3d 258, 260 (6th Cir. 2010). Knox thereafter filed a pro se motion for a
reduction in his sentence based on Amendment 706. “In general, a court may not change or modify
a sentence unless such authority is expressly granted by statute.” Id. at 260 (citing United States v.
Houston, 529 F.3d 743, 748 (6th Cir. 2008)). “One such authorized exception” to the general rule
is found in 18 U.S.C. § 3582(c)(2), which authorizes a district court to reduce a defendant’s sentence
when the sentence was “‘based on a sentencing range that has subsequently been lowered by the
Sentencing Commission,’” Bridgewater, 606 F.3d at 260 (quoting 18 U.S.C. § 3582(c)(2)), and it
was this provision upon which Knox relied.
The district court denied Knox’s pro se motion without prejudice, appointed counsel for
Knox, and ordered the Probation Office to file a Memorandum of Recalculation (“MOR”). The
3
No. 09-5336
United States v. Knox, III
MOR indicated that despite Amendment 706, Knox’s total offense level remained at thirty-one
because he had been sentenced under the career-offender Guideline, U.S.S.G. § 4B1.1, as opposed
to the crack-cocaine Guideline, U.S.S.G. § 2D1.1. The district court agreed with the MOR’s
conclusions and denied Knox’s motion for a sentence reduction under § 3582(c), concluding:
In this case, the crack cocaine amendment reduces the defendant’s base offense level
for his drug convictions, but it does not have the effect of lowering his ultimate
guideline range for imprisonment because his sentencing range is controlled by his
status as a career offender under operation of Section 4B1.1 of the Guidelines.
Therefore, a reduction in sentence is not authorized under 18 USC § 3582(c)(2).
Doc. 92 (Dist Ct. Order 2/18/09). Knox timely appealed the district court’s denial of his motion.
On appeal, Knox makes several arguments in an attempt to persuade us that the district court
erred in concluding that he was ineligible for a sentencing reduction under 18 U.S.C. § 3582(c). He
claims that because the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005),
made the Guidelines advisory, the district court erred in concluding that whether Knox was entitled
to a sentence reduction was dictated by the Guidelines. He further asserts that his status as a career
offender did not render him ineligible to receive the benefit of the amendment to the crack-cocaine
Guideline because, despite being a career offender, his sentence was actually based on a sentencing
range that was subsequently lowered. This argument depends upon the validity of his assertion that
the career-offender Guideline did not form the “basis” of his sentence and instead amounted merely
to a sentencing enhancement. Knox also claims that the rule of lenity applies because the Guidelines
do not make it unambiguously clear that career offenders are ineligible for relief under Amendment
706.
4
No. 09-5336
United States v. Knox, III
Knox’s arguments, though articulate, are entirely foreclosed by United States v. Perdue, 572
F.3d 288 (6th Cir. 2009), cert. denied, 130 S. Ct. 1537 (2010), and its progeny. In Perdue, a panel
of this court held that a defendant sentenced as a career offender under U.S.S.G. § 4B1.1 is ineligible
for a reduction under § 3582(c) based on Amendment 706. Perdue, 572 F.3d at 292; see also United
States v. Sheldon Williams, 607 F.3d 1123, 1125–26 (6th Cir. 2010); Bridgewater, 606 F.3d at
260–61; United States v. Gillis, 592 F.3d 696, 699 (6th Cir. 2009); United States v. Shawn Williams,
367 F. App’x 578, 578 (6th Cir. 2010) (unpublished opinion); United States v. Lockett, 341 F. App’x
129, 130 (6th Cir. 2009) (unpublished opinion). Perdue explained that § 3582(c)(2) expressly limits
the authorization for a sentencing reduction under its provisions to a “defendant whose sentence was
‘based on’ a subsequently-lowered ‘sentencing range,’” and that because Amendment 706 did not
change the base offense level for career offenders set forth in § 4B1.1, defendants sentenced as career
offenders, such as Knox, are simply not eligible for a modification. Perdue, 572 F.3d at 292–93; see
also Gillis, 592 F.3d at 699 (“In this case, the district court did not sentence [the defendant] under
the crack cocaine guideline, U.S.S.G. § 2D1.1; rather, it sentenced him under U.S.S.G. § 4B1.1, the
career offender guideline. Consequently, Amendment 706, which amended § 2D1.1 but not § 4B1.1,
has no effect on the ultimate sentencing range imposed on [the defendant].”).
Knox’s Booker-based argument does not change the outcome. As stated in Perdue and since
reiterated in several cases, “[e]ven assuming . . . that the Sentencing Commission has no authority
to limit the district court’s ability to reduce [a defendant’s] sentence, Congress may certainly cabin
the court’s discretion, and it does so expressly in the text of 18 U.S.C. § 3582(c)(2).” Perdue, 572
5
No. 09-5336
United States v. Knox, III
F.3d at 292; see also Shawn Williams, 367 F. App’x at 679; Lockett, 341 F. App’x at 130–31. In
other words, Booker does not create a basis for a sentencing reduction that is not otherwise
permissible under § 3582(c). Knox makes no attempt to distinguish Perdue and, in fact, he
acknowledges that the entirety of his argument is premised on the Sixth Circuit’s abandonment of
Perdue’s reasoning. As one panel of this court is without the authority to overrule binding precedent
under the instant circumstances, we conclude that § 3582(c)(2) does not authorize a reduction in
Knox’s sentence, and the whole of Knox’s arguments to the contrary are without merit. For these
reasons, we AFFIRM.
6