[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16217 MAY 9, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 96-00013-CR-T-24-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN WILSON,
a.k.a. Clinton Edwards,
a.k.a. Kevin Edwards,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 9, 2006)
Before TJOFLAT, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Kevin Wilson appeals the denial of his motion made pursuant to 18 U.S.C.
§ 3582(c)(2), which permits resentencing in certain circumstances following an
amendment to the Sentencing Guidelines. The district court denied the motion
because, at Wilson’s original sentencing, his offense level was reduced to prevent
double counting, which remedied the same defect that the Guidelines were
amended to correct. We agree that Wilson is not eligible for a new sentence and
AFFIRM.
I. BACKGROUND
In August 1996, Wilson was found guilty by a jury of assaulting a Drug
Enforcement Administration agent in violation of 18 U.S.C. § 111(a), (b) and 18
U.S.C. § 1114; use of a firearm during of a crime of violence in violation of 18
U.S.C. § 924(c); and felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). In January 1997, he was sentenced to 120 months for the first and
third count, running concurrently, and 60 months for the second count, running
consecutive to counts one and three.1 In September 2005, Wilson asked the
district court to review that 1997 sentence in light of Sentencing Guidelines
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Wilson also was sentenced in a separate case at the same hearing to 236 months
imprisonment pursuant to the armed career criminal guideline, U.S.S.G. § 4B1.4 (1995). See
R5-80 at 25. Wilson successfully argued that the Guidelines prescription of a criminal history
category of VI over-represented the seriousness of his criminal history. The district court
departed to a criminal history category of IV. Id. at 24. The court retained the prescribed base
offense level of 34 for armed career criminals in Wilson’s circumstances.
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Amendment 599. Title 18 U.S.C. § 3582(c)(2) permits a district court to modify a
prior sentence when the Sentencing Commission changes a guideline to allow a
lesser sentence than the one previously received.
The district court observed that, at sentencing, Wilson’s sentencing attorney
had secured a reduction in the base offense level that accounted for Amendment
599 and denied the § 3582(c)(2) motion. Wilson argues on appeal that he is
entitled to relief because he received a sentence for using a firearm during a crime
and an enhancement to his underlying offense level for possessing a stolen firearm.
He also argues that the district court erred in failing to conduct the two-part
analysis of (1) recalculating his sentence under the amended Guidelines, and
(2) deciding whether in its discretion, it would impose the newly calculated
sentence or the original sentence.
II. DISCUSSION
Following a motion by a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that was subsequently lowered by the
Sentencing Commission, “the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with applicable policy statements
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issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In considering a
defendant’s motion to reduce his sentence pursuant to 18 U.S.C § 3582(c)(2), a
district court must engage in a two-part analysis: first, “the court must recalculate
the sentence under the amended guidelines;” second, the court must “decide
whether, in its discretion, it will elect to impose the newly calculated sentence . . .
or retain the original sentence.” United States v. Bravo, 203 F.3d 778, 780–81
(11th Cir. 2000). We review a district court’s decision regarding whether to reduce
a sentence pursuant to 18 U.S.C. § 3582(c)(2) for an abuse of discretion. United
States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003). Of course, before the court
engages in the two-step analysis, it must determine whether the amendment applies
in the first place.
Effective November 2000, Amendment 599 altered Application Note 2 of
§ 2K2.4 and clarified the circumstances when a court may impose that weapons
enhancement for defendants convicted of a firearms offense under 18 U.S.C.
§ 924(c). See 2003 Federal Sentencing Guidelines Manual, Supplement to
Appendix C at 69–71. As amended, that section provides:
If a sentence under this guideline is imposed in conjunction with a
sentence for an underlying offense, do not apply any specific
offense characteristic for possession, brandishing, use, or discharge
of an explosive or firearm when determining the sentence for the
underlying offense. A sentence under this guideline accounts for
any explosive or weapon enhancement for the underlying offense of
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conviction, including any such enhancement that would apply based
on conduct for which the defendant is accountable under § 1B1.3
(Relevant Conduct).
U.S.S.G. § 2K2.4 n.4 (2004) (emphasis added). The Sentencing Guidelines
explicitly state that Amendment 599 can be retroactively applied upon a motion
under 18 U.S.C. § 3582(c)(2). U.S.S.G. § 1B1.10(a), (c). Amendment 599 does
not apply when a defendant’s sentence was not increased because of his possession
of a firearm. See United States v. Armstrong, 347 F.3d 905, 908 (11th Cir. 2003).
Turning to the facts of this case, it is clear that Amendment 599 does not
affect Wilson’s sentence. Wilson successfully argued at his original sentencing
hearing that the specific offense characteristic increase pursuant to § 2K2.1(b)(5)
(1995) constituted double counting, and the sentencing court reduced the PSI’s
recommended base offense level accordingly. Thus, Wilson cannot challenge his
sentence based on that specific offense characteristic.
The other weapons-related adjustment was a two-level increase for
possession of a stolen firearm during the offense. See U.S.S.G. § 2K2.1(b)(4).
This increase was not affected by Amendment 599 because the § 2K2.1(b)(4) is an
increase based on the nature of the firearm—i.e., that it was stolen—rather than on
the defendant’s possession, brandishing, use, or discharge. Cf. United States v.
Hedger, 354 F.3d 792, 794 (8th Cir. 2004) (observing that the increase is based on
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the nature of the weapon, i.e., that it was stolen). Further, nothing in 18 U.S.C.
§ 924(c) relates to the stolen nature of the weapon at issue, which further bolsters
our conclusion that Amendment 599 does not affect the specific offense conduct at
issue in U.S.S.G. § 2K2.1(b)(4), because the Amendment was enacted to
ameliorate the overlap between the Guidelines and the statutory offense. See 2003
Federal Sentencing Guidelines Manual, Supplement to Appendix C at 69–71. For
these reasons, Amendment 599 does not apply to any of the increases used at
Wilson’s original sentencing and he is not entitled to resentencing under 18 U.S.C.
§ 3582(c)(2).
III. CONCLUSION
Wilson has appealed the denial of his motion made pursuant to 18 U.S.C.
§ 3582(c)(2), which permits resentencing in certain circumstances following an
amendment to the Sentencing Guidelines. The district court denied the motion
because Wilson’s original sentence would not have been decreased by Amendment
599. We conclude that Amendment 599 does not apply and, therefore, agree that
Wilson is not eligible for a new sentence. AFFIRMED.
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