[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14656 APR 6, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 2:95-cr-00129-JHH-TMP-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
WILLIE CLAY MEANS,
a.k.a. Big Man,
a.k.a. Uncle Bob,
a.k.a. B-Man,
a.k.a. Clay Bird,
a.k.a. C-Man,
a.k.a. Clay,
llllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(April 6, 2011)
Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Willie Clay Means, a prisoner proceeding pro se, appeals the denial of his 18
U.S.C. § 3582(c)(2) motion for resentencing. Means argues on appeal that
Amendment 591 of the Sentencing Guidelines warrants a reduction in his sentence
of life imprisonment to a statutory maximum of 20 years’ imprisonment, because: (1)
the conspiracy count of the indictment did not specify an amount of crack cocaine,
and, thus, his statutory maximum necessarily was determined under 21 U.S.C. §
841(b)(1)(C), which did not include a drug quantity amount; and (2) the jury was not
required to find the quantity of drugs involved in the offense, and, had Amendment
591 been in effect at the time of his sentencing, the government would have been
required to charge a drug quantity in the indictment. After thorough review, we
affirm.1
We review “a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing guidelines,
1
As an initial matter, the government’s challenge to Means’s allegedly untimely notice of
appeal must fail because Means’s notice of appeal, signed September 26, 2010, was filed prior to
the October 5, 2010, entry of judgment of the order denying his § 3582(c)(2) motion. See Day v.
Hall, 528 F.3d 1315, 1318 (11th Cir. 2008) (holding that under the “prison mailbox rule,” a pro
se prisoner’s pleading is considered filed on the date it is delivered to prison authorities to be
mailed, and absent evidence to the contrary, we presume that a prisoner delivered his pleading to
prison officials on the day it was signed); Fed.R.App.P. 4(b)(2). Thus, Means’s notice of appeal
was timely filed, and we have jurisdiction to consider his appeal.
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for abuse of discretion.” United States v. Williams, 557 F.3d 1254, 1256 (11th Cir.
2009) (quotations omitted). However, we review “de novo the district court’s legal
conclusions regarding the scope of its authority under the Sentencing Guidelines.”
Id. (quotations omitted).
Under § 3582(c)(2), a district court has discretion to reduce the term of
imprisonment of an incarcerated defendant when that defendant has been sentenced
“based on a sentencing range that has subsequently been lowered by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). Any reduction, however, must be “consistent
with applicable policy statements issued by the Sentencing Commission.” Id. A
reduction of a term of imprisonment is not consistent with applicable policy
statements -- and is, therefore, not authorized under § 3582(c)(2) -- if the retroactive
amendment does not have the effect of lowering the defendant’s applicable guidelines
range. U.S.S.G. § 1B1.10(a)(2)(B).
Retroactive Amendment 591 clarified that the enhanced penalties in U.S.S.G.
§ 2D1.2, including an enhancement for distributing drugs near protected locations,
can only be applied when the defendant is convicted of an offense referenced to §
2D1.2. United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005); U.S.S.G.
App. C, Amend. 591. Amendment 591 “requires that the initial selection of the
offense guideline be based only on the statute or offense of conviction rather than on
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judicial findings of actual conduct not made by the jury.” Moreno, 421 F.3d at 1219.
In other words, the amendment “directs the district court to apply the guideline
dictated by the statute of conviction, but does not constrain the use of judicially found
facts to select a base offense level within the relevant guideline.” Id. at 1219-20.
Here, the district court properly denied Means’s § 3582(c)(2) motion for a
reduced sentence. As the record shows, Means was convicted of several drug
offenses, including two counts of distribution of crack cocaine within 1,000 feet of
a school, in violation of 21 U.S.C. § 860. As a result, the court calculated Means’s
base offense level under U.S.S.G. § 2D1.2(a)(1) because it was the highest offense
level of all of his counts. Thus, Amendment 591 does not apply in this case because
the application of § 2D1.2 was based on conduct found by the jury and not by judicial
findings. See Moreno, 421 F.3d at 1219-20.
Furthermore, the two counts of distribution of cocaine near a school were
subject to a statutory mandatory minimum of life imprisonment based on Means’s
enhanced sentence for his prior felony drug offenses, pursuant to 21 U.S.C. § 851,
which means that any change to the court’s guideline calculation under § 2D1.2
would not affect the length of his sentence. Accordingly, because the application of
Amendment 591 would not have changed his applicable guideline range, Means was
not eligible for relief under § 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2)(B).
AFFIRMED.
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