UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7726
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHELLE DWAYNE BYERS, a/k/a Sld Dft 3:97-184-5, a/k/a
Michael Dwayne Byers, a/k/a Duke Byers,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:97-cr-00184-FDW-5)
Submitted: August 18, 2009 Decided: September 8, 2009
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Steven George Slawinski, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michelle Dwayne Byers appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) (2006) motion for a
reduction in sentence. In his motion, Byers sought to receive
the benefit of Amendment 706 to the U.S. Sentencing Guidelines
Manual (“USSG”). The Government has filed a motion to dismiss,
contending that Byers’s May 13, 2009 release from prison
effectively mooted this appeal. Because Byers is ineligible for
relief under Amendment 706, we affirm the judgment of the
district court without reaching the mootness issue.
Byers pled guilty, pursuant to a plea agreement, to
conspiracy to possess with intent to distribute and distribute
cocaine and cocaine base within 1,000 feet of a playground, in
violation of 21 U.S.C. §§ 841(a)(1), 846, 860 (2006). Prior to
sentencing, the probation officer prepared a presentence
investigation report (“PSR”), calculating Byers’s base offense
level at thirty-seven, which became a total offense level of
thirty-four after adjustment for acceptance of responsibility
under USSG § 3E1.1 (1997). When combined with Byers’s criminal
history category of VI, this yielded a guideline range of 262 to
327 months’ imprisonment. Additionally, the probation officer
determined that Byers was a career offender under USSG
§ 4B1.1(a). The base offense level under § 4B1.1(A) was also
thirty-seven, for a total offense level of thirty-four after
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adjustment for acceptance of responsibility. Thus, because
Byers’s offense level under USSG § 4B1.1 was not greater than
the offense level otherwise applicable, Byers’s career offender
designation had no immediate effect on his sentence. USSG
§ 4B1.1. At sentencing, the district judge departed downward
upon the Government’s USSG § 5K1.1 motion, and sentenced Byers
to 144 months’ imprisonment on September 21, 1998.
Almost ten years later, Byers filed a § 3582(c)(2)
motion for reduction of sentence, seeking to receive the benefit
of Amendment 706 to the guidelines. Determining that Byers’s
career offender status rendered Byers ineligible for application
of Amendment 706, the district court denied Byers’s § 3582
motion. Byers filed a timely appeal.
We review for abuse of discretion a district court’s
decision denying a sentence reduction under § 3582(c)(2). See
United States v. Goines, 357 F.3d 469, 478 (4th Cir. 2004). The
district court may reduce the term of imprisonment of a
defendant who has been sentenced based on a guideline range that
has subsequently been lowered by an amendment to the guidelines,
so long as the amendment has been made retroactively applicable.
See USSG § 1B1.10(a)(1), p.s. (2008). However, “[a] reduction
in the defendant’s term of imprisonment is not consistent with
this policy statement and therefore is not authorized under
. . . § 3582(c)(2) if . . . an amendment . . . does not have the
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effect of lowering the defendant’s applicable guideline range.”
USSG § 1B1.10(a)(2)(B).
In denying Byers’s motion, the district court
concluded that Byers’s designation as a career offender rendered
him ineligible for relief under Amendment 706. On appeal, Byers
contends that because his offense levels and criminal history
categories were the same under USSG §§ 2D1.1(c) and 4A1.1, as
they were pursuant to USSG § 4B1.1’s career offender
designation, Byers’s sentencing range, before the downward
departure under USSG § 5K1.1, p.s., was based on his crack
cocaine offense level, not his career offender offense level.
Therefore, Byers asserts, substituting the amended version of
USSG § 2D1.1 for the version applied during Byers’s sentencing
while leaving all other guideline decisions unaffected would
reduce Byers’s total offense level from thirty-four to thirty-
two.
Byers is correct that, had Amendment 706 been in
effect at the time of his sentencing, the probation officer
would have calculated his base offense level at thirty-five, see
USSG §§ 2D1.1(c)(3), 2D1.2(a)(2) (2008), which would have
resulted in a total offense level of thirty-two after adjustment
for acceptance of responsibility. When combined with Byers’s
criminal history category of VI, this would have yielded a
guidelines range of 210 to 262 months’ imprisonment. USSG ch.
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5, pt. A (sentencing table). This, however, does not make
Byers’s case.
Byers overlooks the fact that, as a result of this
lessened crack cocaine offense level had Amendment 706 been
applicable at his sentencing, he would have been sentenced under
the career offender base offense level dictated by USSG § 4B1.1,
as his career offender offense level of thirty-seven would have
been more than his otherwise applicable offense level of thirty-
five. USSG § 4B1.1(b). Accordingly, even with the application
of Amendment 706, Byers’s base offense level would have remained
thirty-seven, which, after a three-level adjustment for
acceptance of responsibility, would have resulted in a total
offense level of thirty-four, and a guideline range of 262 to
327 months’ imprisonment, the same as the range originally
calculated by the probation officer. Therefore, because
Amendment 706 “d[id] not have the effect of lowering the
defendant’s applicable guideline range,” the district court did
not err in determining that Byers was ineligible to receive the
benefit of Amendment 706. USSG § 1B1.10(a)(2), p.s.
Accordingly, we deny the Government’s motion to
dismiss, deny Byers’s motion for appointment of counsel, and
affirm the judgment of the district court. We dispense with
oral argument because the facts and legal contentions are
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adequately expressed in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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