UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN PAUL SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:02-cr-00064-GMG-7)
Submitted: October 20, 2015 Decided: November 3, 2015
Before KING, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Paul Smith, Appellant Pro Se. Paul Thomas Camilletti,
Assistant United States Attorney, Martinsburg, West Virginia;
Michael D. Stein, Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Paul Smith appeals the district court’s order denying
his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2)
(2012) based on Amendment 782. We have reviewed the record and
find no reversible error. Accordingly, we affirm.
A district court may reduce a prison term if a defendant’s
Guidelines range has subsequently been lowered by the Sentencing
Commission and the reduction is consistent with applicable
policy statements. 18 U.S.C. § 3582(c)(2) (2012). A reduction
is not consistent with applicable policy statements and
therefore not authorized under § 3582(c)(2) if “an amendment
listed in [U.S. Sentencing Guidelines Manual § 1B1.10(d) (2014)]
does not have the effect of lowering the defendant’s applicable
guideline range.” USSG § 1B1.10(a)(2)(B). We review a district
court’s decision under § 3582(c)(2) for abuse of discretion and
its ruling as to the scope of its legal authority de novo.
United States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013).
In deciding whether to modify a prison term pursuant to a
retroactive amendment to the Sentencing Guidelines, the first
step is to “determine the amended guideline range that would
have been applicable to the defendant if the amendment(s) to the
guidelines listed in [USSG § 1B1.10(d)] had been in effect at
the time the defendant was sentenced.” USSG § 1B1.10(b)(1);
Dillon v. United States, 560 U.S. 817, 827 (2010). “In making
2
such determination, the court shall substitute only the
amendments listed in [USSG § 1B1.10(d)] for the corresponding
guideline provisions that were applied when the defendant was
sentenced and shall leave all other guideline application
decisions unaffected.” USSG § 1B1.10(b)(1). Amendments listed
in USSG § 1B1.10(d) include not only Amendment 782, which
generally reduced base offense levels in USSG § 2D1.1, but also
Amendments 657 and 750, which changed the Drug Equivalency
Tables for oxycodone and cocaine base. See USSG § 1B1.10(d).
At sentencing, the district court adopted the presentence
report and found Smith responsible for a marijuana equivalency
of 2,664.92275 kilograms based on 85.55 grams of cocaine base,
115.2 grams of cocaine hydrochloride, 639.3631 grams of heroin,
and 583.0393 grams of oxycodone. Under the 2002 Sentencing
Guidelines Manual, the district court determined that Smith’s
base offense level was 32, and his total offense level was 34.
With a criminal history category of V and 20-year statutory
maximum, his Guidelines range was 235 to 240 months.
Applying the amendments listed in USSG § 1B1.10(d), Smith’s
Guidelines range has not been lowered. Under Amendment 782, a
marijuana equivalency of 3,000 to 10,000 kilograms is now a base
offense level of 32. Applying the Drug Equivalency Tables in
Amendments 657 and 750, Smith would now be responsible for a
marijuana equivalency of over 3,000 kilograms based on the drug
3
quantity findings at sentencing. * Accordingly, the Sentencing
Commission has not lowered Smith’s Guidelines range, and he is
not eligible for a reduction under 18 U.S.C. § 3582(c)(2).
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
* We note that even if the stipulated drug amounts were
used, rather than the higher drug amounts found by the district
court at sentencing, the marijuana equivalency would still
exceed 3,000 kilograms based on the applicable amendments.
4