UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6055
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN RICHARD PROCTOR,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:04-
cr-00160-RWT-1)
Submitted: September 30, 2010 Decided: October 19, 2010
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
John Richard Proctor, Appellant Pro Se. Steven M. Dunne, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Richard Proctor appeals from the district court’s
order denying his 18 U.S.C. § 3582(c) (2006) motion for a
reduction in sentence pursuant to Amendment 706 of the
Sentencing Guidelines. The district court determined that,
because Proctor qualified as a career offender, he was not
eligible for a reduction in sentence based on Amendment 706.
Proctor pled guilty to possession with intent to
distribute 50 grams or more of cocaine base and unlawful
possession of firearms and ammunition by a convicted felon. At
sentencing, Proctor was held accountable for more than 1.5
kilograms of crack cocaine, resulting in a base offense level of
38. Although Proctor qualified as a career offender, the
offense level determined under U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(1) (2008) resulted in a higher offense level, so
Proctor’s offense level was not changed under the career
offender guideline. After a two-level reduction for acceptance
of responsibility, Proctor’s adjusted offense level was 36, his
criminal history category VI, and his guideline range 324 to 405
months. The district court sentenced him to 324 months’
imprisonment.
In November 2009, Proctor filed a motion for reduction
of sentence pursuant to 18 U.S.C. § 3582(c), based on Amendment
706, which reduced the offense levels applicable to crack
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cocaine offenses. The district court denied the motion,
concluding that, because Proctor was sentenced under the career
offender guideline, he cannot benefit from the amendment to the
drug quantity table. On appeal from that order, Proctor
contends that he was not sentenced as a career offender and
therefore is eligible for a reduction under the amendment. We
agree.
Under § 3582(c)(2), the district court may modify the
term of imprisonment “of a defendant who has been sentenced
. . . based on a sentencing range that has subsequently been
lowered,” if the amendment is listed in the Guidelines as
retroactively applicable. 18 U.S.C. § 3582(c)(2). In the
context of Amendment 706, a defendant whose offense of
conviction involved crack cocaine is eligible for a reduced
sentence only if the amendment lowers the defendant’s applicable
guideline range. See United States v. Lindsey, 556 F.3d 238,
244 (4th Cir.), cert. denied, 130 S. Ct. 182 (2009).
Although Proctor was determined to be a career
offender, his guideline range was determined with reference to
the quantity of drugs attributed to him under USSG § 2D1.1
because the guideline range produced by the career offender
designation was lower. See USSG § 4B1.1(b) (“[I]f the offense
level for a career offender . . . is greater than the offense
level otherwise applicable, the offense level [generated by the
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career offender designation] shall apply.”). Proctor’s offense
level determined by reference to the drug quantity was 38; the
career offender guideline was 37. Because the offense level
determined under the drug tables was higher, that level was used
to determine Proctor’s sentence. Thus, Proctor’s sentence was,
in fact, based on a guideline range that was subsequently
lowered by Amendment 706. Accordingly, the district court’s
finding that Amendment 706 did not authorize a sentence
reduction for Proctor because of his career offender designation
was erroneous. See United States v. McGee, 553 F.3d 225, 230
(2d Cir. 2009) (concluding that a defendant who was designated
as a career offender but ultimately explicitly sentenced based
on a guideline range calculated by USSG § 2D1.1 was eligible for
a sentence reduction).
Applying the amended drug quantity table in § 2D1.1
results in an offense level of 36, based on 1.5 kilograms of
crack cocaine. The career offender guideline requires offense
level 37, unless a higher level is determined based on the
offense of conviction. Because the offense level under the
career offender guideline is higher than the level determined by
reference to the drug quantity, Proctor’s offense level would be
37. After the two-level reduction for acceptance of
responsibility, his total offense level would be 35 and, at
criminal history category VI, his guideline range would be 292
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to 365 months. Because application of Amendment 706 to
Proctor’s sentencing results in a sentencing range that is lower
than the 324 to 405 month range applicable before Amendment 706,
a reduction in Proctor’s sentence is authorized under § 3582(c).
Because the district court mistakenly concluded that it was not
so authorized, we vacate the district court’s order and remand
to the district court for a determination of whether the
reduction should be applied in Proctor’s case. * 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.
VACATED AND REMANDED
*
We determine in this opinion that a reduction is
authorized; we express no opinion as to whether a reduction in
Proctor’s sentence is warranted. See United States v. Stewart,
595 F.3d 197, 200 (4th Cir. 2010) (providing that determination
of whether to grant reduction of sentence authorized under
Amendment 706 is within discretion of the district court judge).
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