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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10475
Non-Argument Calendar
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D.C. Docket No. 3:99-cr-00006-LC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE PARKER,
a.k.a. Wayne Ryals,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(August 8, 2013)
Before HULL, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
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Wayne Parker, proceeding pro se, appeals the district court’s denial of his
motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on
Amendment 750 to the Sentencing Guidelines. Parker is currently serving a
360-month sentence for conspiracy to possess with intent to distribute cocaine and
crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(a), (b)(1)(A)(ii), and
(b)(1)(A)(iii). After a thorough review of the record on appeal, we affirm the
district court’s denial of Parker’s § 3582(c)(2) motion.
I.
We briefly note the procedural history of this case. In December 2000, we
affirmed Parker’s conspiracy conviction, but remanded for resentencing, asking the
district court to determine what effect, if any, Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000), had on Parker’s case. In March 2001, Parker was
resentenced. The court ruled that Parker’s base offense level was 12, which, when
added to his 2-level firearm enhancement yielded a total offense level of 14.
Parker had a criminal history category of I, and a corresponding guideline range of
15 to 21 months. However, the court decided to depart upward to a base offense
level of 38 because the actual drug weight the court found Parker accountable for
distributing was at least 266 kilograms. The upward departure, coupled with
Parker’s firearm enhancement and criminal history, yielded a guideline range of
292 to 365 months. Absent a jury finding as to drug quantity, the court believed
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that the enhanced 30-year statutory maximum sentence under § 841(b)(1)(C)1
reduced that range to 292 to 360 months. The district court sentenced Parker to a
360-month term of imprisonment. We affirmed that sentence in 2002.
In 2012, Parker filed a pro se § 3582(c)(2) motion requesting relief pursuant
to Amendment 750 to the Sentencing Guidelines. In his motion Parker asserted
that the probation officer and defense counsel at his resentencing hearing both
referenced a quantity of 1.5 kilograms of crack cocaine. In addition, the district
court at resentencing did not say how much crack cocaine Parker was responsible
for in excess of 1.5 kilograms. Consequently, Parker’s base offense level should
be decreased from 38 to 34. Without requiring a government response, the district
court denied the motion, concluding that Amendment 750 did not lower Parker’s
applicable guideline range.
On appeal, Parker again argues that at resentencing, the district court failed
to state how many kilograms it attributed to him, and asserts that any finding
greater than 1.5 kilograms of crack cocaine was an impermissible new factual
finding.
II.
“In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), we
review de novo the district court’s legal conclusions regarding the scope of its
1
The government had filed a 21 U.S.C. § 851 notice of enhanced statutory penalties
because Parker had a prior felony conviction.
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authority under the Sentencing Guidelines.” United States v. White, 305 F.3d 1264,
1267 (11th Cir. 2002) (per curiam). We review for abuse of discretion a district
court’s decision whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2).
United States v. Webb, 565 F.3d 789, 792 (11th Cir. 2009) (per curiam).
Pursuant to § 3582(c)(2), a district court may modify a term of imprisonment
that was based on a sentencing range that has subsequently been lowered by the
Sentencing Commission. The Guidelines explain that the amendment relied upon
for § 3582(c)(2) relief must lower the “applicable guideline range.” U.S.S.G. §
1B1.10, cmnt. n.1(A). The guideline range we rely on is “the guideline range that
corresponds to the offense level and criminal history category determined pursuant
to [§] 1B1.1(a), which is determined before consideration of any departure
provision in the Guidelines Manual or any variance.” Id.
In order for Parker to obtain § 3852(c)(2) relief, Amendment 750 would
have had to reduce his original applicable guideline range prior to the court’s
upward variance. See U.S.S.G. § 1B1.10. It did not. At his 2001 resentencing
hearing, the district court found that prior to any upward variance, Parker’s total
offense level was 14, yielding a guideline range of 15 to 21 months. After
Amendment 750, Parker’s total offense level remains at 14, with a corresponding
guideline range of 15 to 21 months. See U.S.S.G. § 2D1.1(c)(14). The district
court below found the same. It is clear that Amendment 750 did not reduce
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Parker’s original applicable guideline range, and the district court did not err in
holding so.
Finally, Parker argues that the district court held him accountable for only
1.5 kilograms of crack cocaine. This argument is meritless and requires no further
discussion. 2
AFFIRMED.
2
The government’s motion for summary affirmance and to stay the briefing schedule is
DENIED AS MOOT.
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