[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10009 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 2, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:99-cr-00027-WPD-20
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
ANDRE CHUNG, a.k.a. Andy,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 2, 2011)
Before HULL, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Pro se defendant-appellant Andre Chung appeals the denial of his 18 U.S.C.
§ 3582(c)(2) motion to modify or reduce his sentence. For the reasons that follow,
we affirm.
In 1999, Chung was convicted of conspiracy to possess with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In the
presentence investigation report (PSI), the probation officer noted that Chung was
responsible for at least 100 kilograms of cocaine, which placed Chung’s base
offense level at 36 under U.S.S.G. § 2D1.1. With no enhancements or reductions,
and a criminal history category II, Chung’s guideline imprisonment range was 210
to 262 months’ imprisonment. Chung objected that his base offense level should
not have been based on more than 50 kilograms of cocaine because an amount
higher than 50 kilograms was inconsistent with grand jury testimony. At
sentencing, the court overruled Chung’s objections and also applied enhancements
for obstruction of justice under § 3C1.1 and possession of a firearm under
§ 2D1.1. Under the court’s calculations, Chung had an offense level of 40 and a
guideline range of 324 to 405 months’ imprisonment. Chung was sentenced to
400 months’ imprisonment. On direct appeal, this court affirmed Chung’s
conviction and sentence.
In December 2010, Chung filed the instant pro se § 3582(c) motion to
reduce his sentence based on Guideline Amendment 591. Chung argued that the
change made by Amendment 591 required that the applicable offense guideline be
2
determined according to the offense of conviction rather than on judicial findings
of actual conduct. Thus, he alleged, the district court failed to select the correct
guideline for the offense of conviction. Chung concluded that, because he was
challenging the district court’s guideline selection and not its determination of his
base offense level, Amendment 591 was applicable and his sentence should be
reduced to the 20-year mandatory maximum under § 841(a) offenses for which no
drug quantity is alleged.
The court denied Chung’s motion, finding that Amendment 591 was not
applicable and that a § 3582 claim was not appropriate for an alleged violation
under Apprendi v. New Jersey, 530 U.S. 466 (2000). This is Chung’s appeal.
We review a district court’s decision whether to reduce a defendant’s
sentence pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion. United States
v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003).
“Under 18 U.S.C. § 3582(c)(2), a district court has discretion to reduce the
term of imprisonment of an already incarcerated defendant when that defendant
was sentenced based on a sentencing range that was subsequently lowered by the
Sentencing Commission pursuant to 28 U.S.C. § 994(o).” United States v. Bravo,
203 F.3d 778, 780 (11th Cir. 2000). But § 3582(c)(2) does not grant the district
court jurisdiction to reconsider all original sentencing determinations. Id. at 781.
3
Moreover, the district court may not modify an imposed term of imprisonment
upon a § 3582(c)(2) motion unless the defendant’s sentencing range was
subsequently lowered by an amendment to the Sentencing Guidelines. Id.
Amendment 591 added language to U.S.S.G. § 1B1.1(a) instructing the
district court to “determine, pursuant to § 1B1.2 (Applicable Guidelines), the
offense guideline section from Chapter Two (Offense Conduct) applicable to the
offense of conviction.” U.S.S.G. App. C, Amend. 591.1 Furthermore, Amendment
591 changed U.S.S.G. § 1B1.2(a), instructing the sentencing court to “[r]efer to
the Statutory Index (Appendix A) to determine the Chapter Two offense guideline,
referenced in the Statutory Index for the offense of conviction. . . . For statutory
provisions not listed in the Statutory Index, use the most analogous guideline.” Id.
(amending U.S.S.G. § 1B1.2(a)). In United States v. Moreno, we explained that
Amendment 591
was designed to clarify whether enhanced penalties provided by
U.S.S.G. § 2D1.2 (relating to drug offenses near protected locations
or involving underage or pregnant individuals) apply only where the
offense of conviction is referenced to that guideline, or whether such
enhanced penalties can be used whenever a defendant’s relevant,
uncharged conduct includes drug sales in a protected location or drug
sales involving a protected individual. Specifically, in order for the
enhanced penalties in § 2D1.2 to apply, the defendant must be
1
Amendment 591 became effective on November 1, 2000 and is retroactively applicable.
U.S.S.G. § 1B1.10(c); U.S.S.G. App. C, Amend. 591.
4
convicted of an offense referenced to § 2D1.2, rather than simply
have engaged in conduct described by that guideline.
United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005) (quotation and
citation omitted). Under Appendix A, § 2D1.1 is the applicable guideline section
for § 841(a) offenses. U.S.S.G. App. A.
Amendment 591, however, only applies to the selection of the relevant
offense guideline, not the selection of a base offense level within the applicable
offense guideline. Moreno, 421 F.3d at 1219-20. Furthermore, Amendment 591
does not constrain the use of judicially found facts to select a base offense level
within the relevant guideline. Id.
Here, in determining Chung’s sentence, the district court applied the
applicable guideline selection from Appendix A, and thus, Amendment 591 does
not apply to him. Accordingly, the district court did not abuse its discretion in
denying his § 3582(c)(2) motion.
AFFIRMED.
5