United States v. Nicholas Currie

Case: 15-11520 Date Filed: 12/31/2015 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 15-11520
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-00077-LGW-WLB-1

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

NICHOLAS CURRIE,

Defendant–Appellant.

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Appeal from the United States District Court
for the Southern District of Georgia
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(December 31, 2015)

Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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Defendant Nicholas Currie, proceeding pro se, appeals the district court’s

sua sponte denial of a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and

Amendment 782 to the Sentencing Guidelines. After careful review, we affirm.

I. BACKGROUND

In 2007, Defendant pleaded guilty to possession with intent to distribute five

grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). After

he entered his guilty plea, the probation officer prepared Defendant’s Presentence

Investigation Report (“PSR”). The PSR indicated that Defendant was a career

offender under U.S.S.G. § 4B1.1 because he had two prior convictions for crimes

of violence. Because the statutory maximum for the present offense was 25 years

or more, Defendant’s career offender status resulted in an offense level of 34. The

PSR applied a 3-level reduction for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1(a) and (b), resulting in a total offense level of 31. Given

Defendant’s numerous criminal convictions and status as a career offender, the

PSR assigned a criminal history category of VI. Based on a total offense level of

31 and a criminal history category of VI, the PSR calculated Defendant’s guideline

range as 188 to 235 months’ imprisonment.1

1
Without the career offender designation, the PSR indicated that Defendant’s base offense level
would have been 26, pursuant to U.S.S.G. § 2D1.1(c)(7), and that Defendant would have been
subject to a 2-level enhancement for possession of a firearm, pursuant to §2D1.1(b)(1).
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Defendant did not file any objections to the PSR. The district court

ultimately imposed a 212-month sentence, and Defendant did not file a direct

appeal.

In March 2015, the district court sua sponte considered whether Defendant

was eligible for a sentence reduction under § 3582(c)(2). The district court

concluded that, as a career offender, Defendant was ineligible for a sentence

reduction. Defendant now appeals from that decision, arguing that he is entitled to

a reduction under Amendment 782 because he was erroneously sentenced as a

career offender. Because one of his predicate offenses was not a crime of violence,

in light of the Supreme Court’s decision in Chambers v. United States, 555 U.S.

122 (2009), he contends that his applicable guideline range should have been

calculated pursuant to the drug quantity guidelines, U.S.S.G. § 2D1.1, not the

career offender guideline.

II. DISCUSSION

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

authority under § 3582(c)(2). United States v. Jones, 548 F.3d 1366, 1368 (11th

Cir. 2008). Under § 3582(c)(2), a district court may modify a term of

imprisonment when the original sentencing range has subsequently been lowered

as a result of an amendment to the Guidelines by the Sentencing Commission. 18

U.S.C. § 3582(c)(2). To be eligible for a sentence reduction under § 3582(c)(2), a

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defendant must identify an amendment to the Sentencing Guidelines that is listed

in U.S.S.G. § 1B1.10(d). U.S.S.G. § 1B1.10(a)(1). A defendant is not eligible for

a reduction under § 3582(c)(2) if a guideline amendment “does not have the effect

of lowering the defendant’s applicable guideline range.” Id. § 1B1.10(a)(2)(B); id.

§ 1B1.10, comment. (n.1(A)).

Amendment 782, which is listed in § 1B1.10(d) and which became effective

November 1, 2014, reduced by two levels the base offense level for most drug

offenses. See U.S.S.G. § 1B1.10(d); U.S.S.G. App. C, Amend. 782 (2014).

Amendment 782 did not make any changes to U.S.S.G. § 4B1.1, the career

offender guideline. See U.S.S.G. App. C., Amend. 782.

When a defendant is sentenced as a career offender, his base offense level is

determined under § 4B1.1, not under the Drug Quantity Table set forth in

§ 2D1.1(c). U.S.S.G. § 4B1.1; United States v. Moore, 541 F.3d 1323, 1327 (11th

Cir. 2008). In Moore, we faced the question of whether defendants who were

sentenced as career offenders under § 4B1.1 were eligible for § 3582(c)(2) relief in

light of Amendment 706, which like Amendment 782, lowered the § 2D1.1(c) base

offense levels for certain quantities of crack cocaine. 541 F.3d at 1325. We held

that the defendants did not qualify for § 3582(c)(2) relief because Amendment 706

had no effect on their applicable guideline ranges, which had been calculated under

§ 4B1.1 Id. at 1327–28, 1330. Likewise, in United States v. Lawson, 686 F.3d

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1317 (11th Cir. 2012), we concluded that Moore remained binding precedent and

that Amendment 750 did not lower the guideline range for career offenders. Id. at

1321.

Here, the district court did not err when it concluded that Defendant was not

eligible for a sentence reduction. Defendant’s total offense level and applicable

guideline range were not based on the drug quantity offense levels in § 2D1.1, but

instead were based on the career offender level in § 4B1.1. Because Defendant’s

guideline range was not based on the drug quantity guidelines, Amendment 782

did not lower the sentencing range upon which Defendant’s sentence was based.

See Lawson, 686 F.3d at 1321; Moore, 541 F.3d at 1327–30.

Although Defendant argues that he would be entitled to a sentence reduction

if he had not been improperly sentenced as a career offender, he cannot challenge

his career offender designation in a § 3582(c)(2) proceeding. See United States v.

Bravo, 203 F.3d 778, 780 (11th Cir. 2000) (stating that in a § 3582(c)(2)

proceeding “only the amended guideline is changed. All other guideline

application decisions made during the original sentencing remain intact”).

Accordingly, the district court committed no error in concluding that Defendant

was ineligible for a sentence reduction under § 3582(c)(2) and Amendment 782.

AFFIRMED.