United States v. John Otis Burnside

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14081 ELEVENTH CIRCUIT
FEBRUARY 18, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 89-00170-CR-DMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN OTIS BURNSIDE,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(February 18, 2009)

Before BLACK, CARNES, and BARKETT, Circuit Judges.

PER CURIAM:

John Otis Burnside, a federal prisoner proceeding pro se, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his 420-month

sentence. Burnside contends that he is entitled to a sentencing reduction based on

Amendment 506 to the Sentencing Guidelines, which addressed the definition of

“Offense Statutory Maximum” as used in § 4B1.1. He also contends that the

district court lacked subject matter jurisdiction in the sentencing proceeding

because he involuntarily waived his right to counsel in violation of the Sixth

Amendment. We affirm.

We review de novo a district court’s conclusions about the scope of its legal

authority under 18 U.S.C. § 3582(c)(2). United States v. Moore, 541 F.3d 1323,

1326 (11th Cir. 2008) (citing United States v. White, 305 F.3d 1264, 1267 (11th

Cir. 2002)).1 We may affirm on any ground supported by the record. United

States v. Mejia, 82 F.3d 1032, 1035 (11th Cir. 1996).

Burnside first contends that he is entitled to a sentence reduction under

Amendment 506 to the Sentencing Guidelines. The district court’s order denying

Burnside’s motion for a reduced sentence does not refer to Amendment 506.

Instead, it appears to have considered only the effect of Amendment 706.

Amendment 706 does not lower Burnside’s sentence because his convictions

1
Once it is established that 18 U.S.C. § 3582 applies, a district court’s decision to grant or
deny a sentence reduction is reviewed only for abuse of discretion. United States v. Vautier, 144
F.3d 756, 759 n.3 (11th Cir. 1998).

2
involve powder cocaine and Amendment 706 applies only to crack cocaine

convictions. See U.S.S.G. app. C, Amend. 706 (2007); United States v. James,

548 F.3d 983, 984–85 (11th Cir. 2008). Still, even assuming that the district court

did not consider Burnside’s argument regarding Amendment 506, we can affirm

on any grounds supported by the record. Mejia, 82 F.3d at 1035.

Here we affirm because Amendment 506 does not operate to lower

Burnside’s sentence. Burnside contends that his guideline range was improperly

enhanced under § 4B1.1 of the sentencing guidelines because his “Offense

Statutory Maximum” was increased based on his prior criminal history in violation

of Amendment 506. See U.S.S.G. app. C, Amend. 506.2 He is wrong. For one

thing, Amendment 506 was effectively superceded by Amendment 567; the

sentencing guidelines now define “Offense Statutory Maximum” as used in §

4B1.1 as including “any increase in [the statutory] maximum term under a

2
Amendment 506, effective November 1, 1994, changed the definition of “Offense
Statutory Maximum” for the purposes of § 4B1.1 to:

[T]he maximum term of imprisonment authorized for the offense of conviction
that is a crime of violence or controlled substance offense, not including any
increase in that maximum term under a sentencing enhancement provision that
applies because of the defendant's prior criminal record . . . . For example, where
the statutory maximum term of imprisonment under 21 U.S.C. § 841(b)(1)(C) is
increased from twenty years to thirty years because the defendant has one or more
qualifying prior drug convictions, the ‘Offense Statutory Maximum’ for the
purposes of this guideline is twenty years and not thirty years.

U.S.S.G. app. C, Amend. 506.

3
sentencing enhancement provision that applies because of the defendant’s prior

criminal record.” Id. § 4B1.1 cmt. n.2; see also id. app. C, Amend 567. More

fundamentally, Burnside was convicted of, among other things, conspiracy to

possess with intent to distribute at least five kilograms of cocaine, which has a

statutory maximum penalty of life imprisonment. See 21 U.S.C. §§ 846,

841(b)(1)(A). Therefore, Burnside’s base offense level was increased to 37

pursuant § 4B1.1 regardless of his past criminal history. See U.S.S.G. § 4B1.1(b).

It follows that the district court used the proper base offense level in calculating

Burnside’s sentence.

Burnside’s Sixth Amendment claim also fails. We do not have jurisdiction

under § 3582(c)(2) to correct an extraneous resentencing issue. See United States

v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000).

AFFIRMED.