[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13646 ELEVENTH CIRCUIT
MARCH 3, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 06-00464-CR-T-17-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY LYNN EADY,
a.k.a. Edo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 3, 2010)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Terry Lynn Eady appeals from the district court’s order finding that he was
not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendment
706 to the Sentencing Guidelines, which retroactively reduced the base offense
levels applicable to crack cocaine offenses. On appeal, he argues that the district
court erred in concluding that he was not eligible for a sentence reduction based on
its finding that he was responsible for at least 4.5 kilograms of crack cocaine. He
asserts that, at his original sentencing hearing, the court found only that he was
responsible for 1.5 kilograms or more of crack cocaine, and did not specify a
greater drug quantity. Eady also argues that, even if he were responsible for at
least 4.5 kilograms of crack cocaine, he was still eligible for a sentence reduction
because the Sentencing Guidelines should be treated as advisory in § 3582(c)(2)
proceedings.
For the reasons set forth below, we affirm.
I.
In June 2007, Eady pled guilty to: (1) conspiracy to possess with intent to
distribute 50 grams or more of crack cocaine and a detectable quantity of cocaine,
in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(iii), and (b)(1)(C)
(“Count 1”); and (2) using and carrying a firearm during and in relation to a drug
trafficking offense, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (“Count 3”).
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Count 1 of the indictment alleged that Eady had participated in the conspiracy to
distribute cocaine and crack cocaine along with nine other defendants, including
Trinidad Hamilton.
In September 2007, the district court held a sentencing hearing regarding
codefendant Hamilton. The court and the parties agreed that Hamilton was
responsible for eight kilograms of crack cocaine. Specifically, the court stated,
“[The] [c]ourt will make a finding of eight kilograms in this defendant’s case. And
you can refer to that in other sentencings.”
According to Eady’s presentence investigation report (“PSI”), he and his co-
conspirators operated a drug trafficking scheme in which they converted powder
cocaine into crack cocaine, and then delivered the crack cocaine to customers.
Eady and Hamilton were responsible for converting powder cocaine into crack
cocaine. The probation officer determined that each co-conspirator should be held
responsible for the entire amount of crack cocaine distributed by the group because
they were each part of a joint scheme to sell crack cocaine. The probation officer
found that Eady was responsible for at least 1.5 kilograms of crack cocaine, which
rendered a base offense level of 38 under the drug quantity table set forth in
U.S.S.G. § 2D1.1(c). After reducing Eady’s base offense level by three levels for
acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b), the officer
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determined that Eady had a total offense level of 35 which, when combined with
his criminal history category of VI, produced a guideline range of 292 to 365
months’ imprisonment.
At his October 2007 sentencing hearing, Eady stated that he had no
objections to the PSI, and the court adopted the PSI’s factual findings and
guideline applications. The parties and the court discussed the potential
applicability of the pending crack-cocaine amendments to Eady’s sentence. The
government argued that these amendments would have no effect on Eady’s
sentence because the evidence introduced during the trial of several of his co-
conspirators demonstrated that the group distributed over 4.5 kilograms of crack
cocaine. Eady responded that he deferred to the government’s version of the facts,
stating that he was “not surprised” that the evidence indicated that he was
responsible for 4.5 kilograms of crack cocaine. He further stated that, based on the
government’s version of the facts, he lost any argument that he was responsible for
less than 4.5 kilograms of crack cocaine. He argued, however, that he could still
be entitled to a lower sentence based on the Supreme Court’s pending decision in
Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).
The court found that Eady was not entitled to any relief based on the pending
crack-cocaine amendments or the issues pending before the Supreme Court in
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Kimbrough. After reducing Eady’s offense level for his substantial assistance to
the government, the court sentenced him to 130 months’ imprisonment as to Count
1, and a mandatory consecutive term of 7 years’ imprisonment as to Count 3,
pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). Accordingly, Eady was sentenced to a
total term of 214 months’ imprisonment.
In March 2009, the district court sua sponte entered an order noting that
Eady could be eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and
Amendment 706 to the Sentencing Guidelines. Both the U.S. Probation Office and
the government responded that Eady was not eligible for a sentence reduction
because he was responsible for at least 4.5 kilograms of crack cocaine. The
Probation Office and the government, however, cited different facts and arguments
in support of their contentions that Eady’s case involved 4.5 kilograms of crack
cocaine.
The court entered an order finding that Eady was not eligible for a sentence
reduction under § 3582(c)(2) and Amendment 706. The court explained that it
found the responses filed by the government and probation to be persuasive, and
incorporated these responses into its order.
III.
“We review de novo a district court’s conclusions about the scope of its legal
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authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983,
984 (11th Cir. 2008). A district court may modify a term of imprisonment in the
case of a defendant who was sentenced to a term of imprisonment 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. Even after the Supreme Court’s decision in Kimbrough, a
district court’s discretion in a § 3582(c)(2) proceeding is limited by the Sentencing
Commission’s policy statements. United States v. Melvin, 556 F.3d 1190, 1192-94
(11th Cir.), cert. denied, 129 S.Ct. 2383 (2009).
Where a defendant’s guideline range remains unchanged by Amendment
706 because his offense involved 4.5 kilograms or more of crack cocaine, a district
court is not authorized to reduce the defendant’s sentence under § 3582(c)(2).
Jones, 548 F.3d at 1369. In a § 3582(c)(2) proceeding, a district court may rely on
the undisputed factual findings set forth in the PSI used at the defendant’s original
sentencing. United States v. Davis, No. 08-16617, manuscript op. at 6 (11th Cir.
Nov. 18, 2009). We may affirm a district court’s decision based on any ground
supported by the record. United States v. Simmons, 368 F.3d 1335, 1342 (11th Cir.
2004).
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Here, the district court’s reason for finding that Eady was not eligible for a
sentence reduction is not clear. While the court incorporated the government’s and
the U.S. Probation Office’s responses into its order denying relief, the government
and the U.S. Probation Office relied on different facts and arguments in their
responses, and the court’s order does not indicate which of these arguments it
found to be persuasive.
We, however, may still affirm the district court’s order based on the record.
During Hamilton’s sentencing, the court found that the conspiracy involved eight
kilograms of crack cocaine. In addition, at Eady’s original sentencing, he did not
object to the probation officer’s recommendation that each co-conspirator be held
responsible for the entire amount of crack cocaine involved in the conspiracy. As a
result, the record shows that Eady was responsible for at least 4.5 kilograms of
crack cocaine. Moreover, at his original sentencing, Eady conceded that the
evidence showed that he was responsible for at least 4.5 kilograms of crack
cocaine. Because Eady was responsible for at least 4.5 kilograms of crack cocaine,
he was not eligible for a sentence reduction under § 3582(c)(2) and Amendment
706. Finally, Eady’s argument that the district court had authority to reduce his
sentence under an advisory Guideline system and Kimbrough is foreclosed by our
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decision in Melvin.
AFFIRMED.
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