[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 1, 2006
No. 05-13571 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 92-00377-CR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRYL MCCRARY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 1, 2006)
Before TJOFLAT, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
On September 29, 2005, this Court denied Darryl McCrary’s motion for
leave to proceed on appeal in forma pauperis because his appeal was frivolous.
After his mother paid the filing fees, McCrary is now proceeding with that
frivolous appeal. He contends that the district court erred in denying his motion to
correct his 228-month sentence, brought pursuant to 18 U.S.C. § 3582(c)(2) based
upon Amendments 9 and 599 to the United States Sentencing Guidelines.
We review a district court’s decision not to resentence a defendant under
§ 3582(c)(2) for abuse of discretion. United States v. Vautier, 144 F.3d 756, 759
n.3 (11th Cir. 1998). Pursuant to § 3582(c)(2), a district court may reduce the
prison term of a defendant who is sentenced within a guideline range that has
subsequently been lowered through a retroactive amendment to the guidelines “if
such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see United States v. Pringle,
350 F.3d 1172, 1176 (11th Cir. 2003). U.S.S.G. § 1B1.10(c) lists all of the
retroactive amendments.
Amendment 9 has been in effect since June 15, 1988. U.S.S.G. App. C,
Amend. 9 (2004). It was in effect in 1992 when McCrary committed his crimes
and in 1995 when the district court sentenced him. Because McCrary could not
have been sentenced within a guideline range that was subsequently lowered
through the adoption of Amendment 9, he is not entitled to § 3582(c)(2) relief on
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this basis. Thus, the district court did not abuse its discretion in denying
McCrary’s motion to correct his sentence based upon Amendment 9.
Amendment 599 became effective on November 1, 2000, and thus was not
in effect when McCrary committed his crimes and was sentenced. U.S.S.G. App.
C, Amend. 599. The amendment is listed in § 1B1.10(c) as having retroactive
application. U.S.S.G. § 1B1.10(c). Amendment 599 expanded the commentary in
U.S.S.G. § 2K2.4 to clarify under what circumstances a firearms enhancement may
be imposed when a defendant has been convicted of a firearms offense under 18
U.S.C. § 924(c). U.S.S.G., App. C, Amend. 599, Reason for Amendment. The
amendment states that:
[N]o guideline weapon enhancement should be applied when
determining the sentence for the crime of violence or drug trafficking
offense underlying the 18 U.S.C. § 924(c) conviction, nor for any
conduct with respect to that offense for which the defendant is
accountable under § 1B1.3 (Relevant Conduct). Guideline weapon
enhancements may be applied, however, when determining the
sentence for counts of conviction outside the scope of relevant
conduct for the underlying offense (e.g., a conviction for a second
armed bank robbery for which no 18 U.S.C. § 924(c) conviction was
obtained).
Id. This Court has stated that the purpose of the amendment was “to prevent
‘double counting’ for firearms use in any one criminal event.” Pringle, 350 F.3d at
1180 (emphasis omitted). Because McCrary received weapons enhancements only
in connection with the robberies for which he was not charged and convicted of
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violating § 924, his guideline range would not be affected by the amendment.
Accordingly, the district court did not abuse its discretion in denying McCrary’s
motion to correct his sentence based upon Amendment 599.
AFFIRMED.
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