UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL L. FRAZIER, a/k/a Mike,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:97-cr-00143-2)
Submitted: July 15, 2009 Decided: July 29, 2009
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael L. Frazier, Appellant Pro Se. John J. Frail, Monica
Kaminski Schwartz, Assistant United States Attorneys,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael L. Frazier appeals the district court’s order
granting his motion for a reduction of sentence pursuant to 18
U.S.C. § 3582(c)(2) (2006). Applying Amendment 715 of the
Guidelines, see U.S. Sentencing Guidelines Manual (“USSG”) App.
C Supp. Amend. 715, the district court reduced Frazier’s
sentence by five months to 235 months of imprisonment. Finding
no reversible error, we affirm.
When calculating an offense level for a defendant
responsible for more than one type of controlled substance,
Amendment 715 provides that the court should convert each of the
drugs to its marijuana equivalent, add the quantities, and then
look up the total in the Drug Quantity Table to obtain the
combined offense level. USSG § 2D1.1, comment. (n.10(B) & (D)).
Utilizing this process, one gram of crack cocaine is equal to
twenty kilograms of marijuana, and one gram of powder cocaine is
equal to 200 grams of marijuana. Id. at (n.10(E)). Amendment
715 instructs that, once a complete offense level is reached
using the equivalent amount of marijuana for all controlled
substances, the court should subtract two levels, except in
certain circumstances not applicable here. See id. at
(n.10(D)(i)).
After calculating the marijuana equivalency for each
drug and applying the two-level reduction, we find that
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Frazier’s amended guideline range is 235 to 293 months of
imprisonment. Pursuant to USSG § 5G1.1(c), however, the amended
guideline range is reduced to 235 to 240 months because Frazier
was subject to a twenty-year statutory maximum sentence.
Although Frazier argues on appeal that he was entitled
to an even greater reduction in sentence, we find that the
district court was not authorized to reduce the sentence below
235 months. Pursuant to USSG § 1B1.10(b)(2)(A), p.s., “the
court shall not reduce the defendant’s term of imprisonment
under 18 U.S.C. § 3582(c)(2) and this policy statement to a term
that is less than the minimum of the amended guideline range.”
As we recently ruled, this limitation is jurisdictional. United
States v. Dunphy, 551 F.3d 247, 252 (4th Cir.), cert. denied,
129 S. Ct. 2401 (2009).
Frazier nonetheless argues that his original sentence
was “82 percent of the low end of the guideline range as
calculated by the court,” and he is therefore entitled to a
lower sentence pursuant to § 1B1.10(b)(2)(B). We find, however,
that Frazier’s original 240-month sentence was within the
“guideline range applicable to [him] at the time of sentencing,”
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USSG § 1B1.10(b)(2)(B), and thus the exception set forth in
§ 1B1.10(b)(2)(B) does not apply. *
Accordingly, we affirm the district court’s order.
See United States v. Frazier, No. 2:97-cr-00143-2 (S.D. W. Va.
Jan. 14, 2009). We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
*
Although the district court indicated that it was
departing downward from the guideline range “[b]ecause the plea
agreement and the statute preclude a sentencing exceeding 240
months,” we find that the “guideline range applicable to
[Frazier] at the time of sentencing” was capped by the statutory
maximum and was therefore 240 months pursuant to USSG § 5G1.1(a)
(providing that “[w]here the statutorily authorized maximum
sentence is less than the minimum of the applicable guideline
range, the statutorily authorized maximum shall be the guideline
sentence”).
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