[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
AUG 11, 2011
No. 11-10008 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:96-cr-00075-JIC-27
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ROGELIO GALVEZ,
a.k.a. Francoise Roger,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 11, 2011)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
On September 8, 1999, the district court sentenced Rogelio Galvez, on pleas
of guilty, to a prison term of 360 months for conspiracy, in violation of 21 U.S.C.
§ 846, to possess with intent to distribute cocaine and marijuana, in violation of 21
U.S.C. § 841(a)(1), and a consecutive prison term of 60 months for possession of a
firearm during and in relation to an April 19, 1996 drug robbery, in violation of 18
U.S.C. § 924(c). On August 23, 2010, Galvez, proceeding pro se, moved the
district court, pursuant to 18 U.S.C. § 3582(c)(2), to reduce his sentence on the §
846 conspiracy conviction based on Amendment 599 of the Sentencing
Guidelines. At his sentencing, the court had enhanced the base offense level for
the § 846 offense by two-levels pursuant to U.S.S.G. § 2D1.1(b)(1); he argues now
that Amendment 599 invalidated the enhancement thereby reducing the Guidelines
sentencing range for his § 846 offense.
We review for abuse of discretion a district court’s decision not to reduce a
sentence pursuant to § 3582(c)(2). United States v. Moreno, 421 F.3d 1217, 1219
(11th Cir. 2005). The district court’s interpretation of Amendment 599 is
reviewed de novo. United States v. Pringle, 350 F.3d 1172, 1178 (11th Cir.
2003). Under § 3582(c)(2), where a defendant’s term of imprisonment was based
on a Guidelines sentencing range “that has subsequently been lowered by the
Sentencing Commission,” a district court has the discretion to reduce the sentence
“if such a reduction is consistent with applicable policy statements” of the
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Guidelines. 18 U.S.C. § 3582(c)(2). The applicable policy statement, found in
U.S.S.G. § 1B1.10, lists those Guidelines amendments that may apply
retroactively to reduce a sentence, and Amendment 599 is included in the list.
U.S.S.G. § 1B1.10(c). However, a sentence reduction is not authorized if the
listed amendment “does not have the effect of lowering the defendant’s applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
Amendment 599, which took effect on November 1, 2000, was intended “to
clarify under what circumstances a weapons enhancement may properly be applied
to an underlying offense when the defendant has also been convicted for the use or
possession of a firearm pursuant to 18 U.S.C. § 924(c).” Pringle, 350 F.3d at
1179; see U.S.S.G. app. C, amend. 599. Specifically, Amendment 599 revised the
application note to U.S.S.G. § 2K2.4, the guideline for § 924(c) offenses, and
provides, in part:
If a sentence under this guideline is imposed in conjunction with a
sentence for an underlying offense, do not apply any specific offense
characteristic for possession, brandishing, use, or discharge of an
explosive or firearm when determining the sentence for the
underlying offense. A sentence under this guideline accounts for any
explosive or weapon enhancement for the underlying offense of
conviction, including any such enhancement that would apply based
on conduct for which the defendant is accountable under 1.3
(Relevant Conduct). Do not apply any weapon enhancement in the
guideline for the underlying offense, for example, if (A) a
co-defendant, as part of the jointly undertaken criminal activity,
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possessed a firearm different from the one for which the defendant
was convicted under 18 U.S.C. 924(c); or (B) in an ongoing drug
trafficking offense, the defendant possessed a firearm other than the
one for which the defendant was convicted under 18 U.S.C. 924(c).
However, if a defendant is convicted of two armed bank robberies,
but is convicted under 18 U.S.C. 924(c) in connection with only one
of the robberies, a weapon enhancement would apply to the bank
robbery which was not the basis for the 18 U.S.C. 924(c) conviction.
U.S.S.G. app. C, amend. 599; Pringle, 350 F.3d at 1179.
In Pringle, the defendant committed multiple robberies and was convicted
on several counts, including a conspiracy count and a § 924(c) count. Pringle,
350 F.3d at 1174-75. The § 924(c) count was predicated on a bank robbery that
also formed part of the defendant’s conspiracy conviction. Id. at 1175. The
defendant received weapon enhancements for several criminal acts underlying the
conspiracy, but not for the bank robbery. Id. On appeal from the denial of the
defendant’s § 3582(c)(2) motion, we reasoned that “Amendment 599 was
promulgated in order to prevent ‘double counting’ for firearms use in any one
criminal event.” Id. at 1180. Therefore, the amendment allowed the “weapon
enhancements for all robberies except for the one robbery that served as the basis
for [defendant’s] § 924(c) conviction.” Id. Accordingly, we held that the
defendant’s weapon enhancements comported with Amendment 599, and a §
3582(c)(2) sentence reduction based on that amendment was not warranted. Id. at
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1181.
In this case, it is not clear what specific criminal event formed the basis for
Galvez’s § 924(c) conviction and what criminal event underlay the two-level
weapon enhancement. However, the indictment and the presentence investigation
report indicate that Galvez and his co-conspirators participated in multiple
criminal events that involved the use of firearms, even though Galvez personally
participated in only some of these events. Therefore, several criminal acts
independent of the § 924(c) offense could have properly formed the basis for
Galvez’s two-level enhancement. See U.S.S.G. § 1B1.3(a)(1)(B) (stating that, in
the case of a jointly undertaken criminal activity, sentencing enhancements may be
applied on the basis of “all reasonably foreseeable acts and omissions” of co-
conspirators). Furthermore, even if Galvez’s § 924(c) conviction was predicated
on a criminal event that also formed part of his conspiracy conviction, nothing
suggests that the weapon enhancement was predicated on that same criminal event
within the conspiracy. Accordingly, Amendment 599 did not invalidate Galvez’s
two-level weapon enhancement and had no effect on his Guidelines sentencing
range, thereby precluding a § 3582(c)(2) sentence reduction. See Pringle, 350
F.3d at 1179-81; U.S.S.G. § 1B1.10(a)(2)(B).
AFFIRMED.
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