[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 6, 2006
No. 06-10558 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 97-00231-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY DAILEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(June 6, 2006)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Anthony Dailey, proceeding pro se, appeals the district court’s
denial of his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), in
which he argued that his sentence should be reduced based upon retroactively
applicable amendments to the Sentencing Guidelines.
First, Dailey argues that, as the district court never specified the drug
quantity for which it held him accountable, his sentence should be reduced
pursuant to Amendment 506 to U.S.S.G. § 4B1.1.
We review a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2) for abuse of discretion. United States v. Moreno, 421
F.3d 1217, 1219 (11th Cir. 2005) (citation omitted), cert. denied, 126 S. Ct. 1643
(2006). “The abuse of discretion standard has been described as allowing a range
of choice for the district court, so long as that choice does not constitute a clear
error of judgment.” United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989)
modified on other grounds, United States v. Toler, 144 F.3d 1423, 1425 n.3 (11th
Cir. 1998). “A sentencing adjustment undertaken pursuant to Section 3582(c)(2)
does not constitute a de novo re-sentencing.” Moreno, 421 F.3d at 1220 (quotation
omitted). Thus, “all original sentencing determinations remain unchanged with the
sole exception of the guideline range that has been amended since the original
sentencing.” Id. (quotation omitted).
A district court is authorized to modify a sentence when:
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a defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of
the defendant or the Director of the Bureau of Prisons, or on its own
motion, 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 issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
We have held that
the district court must make two distinct determinations before
deciding whether to reduce a defendant’s sentence under § 3582(c)(2).
First, the court must substitute the amended guideline range for the
originally applied guideline range and determine what sentence it
would have imposed. In undertaking this first step, only the amended
guideline range is changed. All other guideline application decisions
made during the original sentencing remain intact. Second, in light of
the conclusion reached in the first step, the court must consider the
factors listed in § 3553(a) and determine whether or not to reduce the
defendant’s original sentence.
United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998) (citations omitted).
“Both the language of § 3582(c)(2) and this circuit’s precedent indicate that the
sentencing court’s power to reduce a sentence is discretionary.” Id. Under
§ 3553(a), in imposing a sentence, the district court must consider factors including
the nature and circumstances of the offense, and the need for the sentence to
protect the public from further crimes of the defendant. 18 U.S.C. § 3553(a)(1),
(2)(B).
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Guidelines Amendment 506 clarified the policy against double-counting and
unwarranted disparities associated with the exercise of prosecutorial discretion
when “seeking enhanced penalties based on prior convictions.” See U.S.S.G. App.
C, Amendment 506 (2005). This amendment addressed a change to the application
notes for U.S.S.G. § 4B1.1, which addresses the career criminal enhancement. See
id. Amendment 506 provides that the
‘Offense Statutory Maximum,’ for the purposes of this guideline
refers to the 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 criminal record (such sentencing enhancement provisions
are contained, for example, in 21 U.S.C. § 841(b)(1)(A), (b)(1)(B),
(b)(1)(C), and (b)(1)(D)). 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, Amendment 506 (2005). Amendment 506 is retroactively
applicable. See U.S.S.G. § 1B1.10(a), (c).
Despite Dailey’s assertions, the record demonstrates that the district court
determined Dailey’s offense level under the guidelines pursuant to the drug
quantity it found attributable to him. It did not enhance his sentence as a career
offender under Chapter Four of the Sentencing Guidelines. Therefore, Amendment
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506 is not applicable to Dailey’s case. Further, Dailey cannot rely on Amendment
506 to support a motion pursuant to 18 U.S.C. § 3582(c)(2) because the Sentencing
Commission did not adopt the amendment subsequent to the district court
sentencing Dailey. Accordingly, we affirm on this issue.
Next, Dailey argues that his sentence should be reduced pursuant to
Amendment 599 because he was convicted of a firearms offense, thus his sentence
could not be enhanced under U.S.S.G. § 2K2.4. Guidelines Amendment 599
clarified the policy against double-counting a firearm offense under 18 U.S.C.
§ 924(c), and under a weapon enhancement for the underlying offense. See
U.S.S.G. App. C, Amendment 599 (2005). Amendment 599 provides that
[i]f 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 . . . weapon
enhancement for the underlying offense of conviction, including any
such enhancement that would apply based on conduct for which the
defendant is accountable under § 1B1.3 (Relevant Conduct). Do not
apply any weapon enhancement in the guideline for the underlying
offense, for example, if (A) a co-defendant, as part of the jointly
undertaken criminal activity, possessed a firearm different from the
one for which the defendant was convicted under 18 U.S.C. § 924(c).
U.S.S.G. App. C, Amendment 599 (2000). Amendment 599 is retroactively
applicable. See U.S.S.G. § 1B1.10(a), (c).
The record demonstrates that the district court declined to enhance Dailey’s
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offense level for his drug offenses for possession of a dangerous weapon under §
2D1.1(b)(1) because Dailey had been convicted of carrying a firearm during a drug
trafficking offense. The district court enhanced Dailey’s base offense level for
possession of a firearm by a convicted felon because he possessed three firearms
under § 2K2.1(b)(1)(A), but it declined to enhance his offense level under §
2K2.1(b)(5) for possession of a firearm in connection with another felony because
Dailey had been convicted of carrying a firearm in connection with a drug crime.
The district court did not enhance Dailey’s sentence for his use of a firearm during
a drug trafficking crime. Thus, the district court did not double-count his firearm
offense, as prohibited by the amendment, and the district court did not abuse its
discretion in declining to reduce Dailey’s sentence. Accordingly, we affirm on this
issue.
Lastly, Dailey argues that the jury never determined his base offense level
and the district must find him responsible for a specific drug quantity pursuant to
Amendment 668. The Guidelines provide that,
[w]here a defendant is serving a term of imprisonment, and the guideline
range applicable to that defendant has subsequently been lowered as a result
of an amendment to the Guidelines Manual listed in subsection (c) below, a
reduction in the defendant's term of imprisonment is authorized under 18
U.S.C. § 3582(c)(2).
U.S.S.G. § 1B1.10(a). Only those amendments which lower the applicable
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Guideline range and are listed in § 1B1.10(c) trigger eligibility for consideration
under § 3582(c)(2). § 1B1.10, comment. (n. 1). “Failure to follow such
commentary could constitute an incorrect application of the guidelines, subjecting
the sentence to possible reversal on appeal.” § 1B1.7.
Amendment 668 modified the maximum base offense levels for certain
offenders convicted for drug offenses. U.S.S.G. App. C, Amendment 668. This
amendment eliminated the mitigating-role cap of § 2D1.1(a)(3), and, in order to
address proportionality concerns, inserted a sliding scale in both § 2D1.1 and
§ 2D1.11, so that a person receiving a mitigating role reduction would receive a
corresponding reduction in his base offense level. Id. Amendment 668 is not
included in § 1B1.10(c)’s list, so “a reduction in the defendant’s term of
imprisonment under 18 U.S.C. § 3582(c)(2) is not consistent with this policy
statement and thus is not authorized.” § 1B1.10(a).
We have held that United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,
160 L. Ed. 2d 621 (2005), does not apply retroactively to cases on collateral
review. Varela v. United States, 400 F.3d 864, 868 (11th Cir.), cert. denied, 126 S.
Ct. 312 (2005). We have also held that the United States Supreme Court has not
made Booker retroactively available on collateral review for purposes of
authorizing a second or successive § 2255 motion. In re Anderson, 396 F.3d 1336,
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1339-40 (11th Cir. 2005). We recently held that Booker was a Supreme Court
decision, not a retroactively applicable Guidelines amendment by the Sentencing
Commission, and, thus, was inapplicable to § 3582(c)(2) motions. Moreno, 421
F.3d at 1220.
After reviewing the record, we conclude that the district court properly
found it could not reduce Dailey’s sentence under § 3582 based on a review of the
record, Amendment 668, and the advisory nature of the Guidelines. Because
Amendment 668 is not included in the covered amendments that can be applied
retroactively to trigger eligibility for § 3582 relief and Booker is inapplicable to §
3582(c)(2) motions, the district court did not abuse its discretion in denying
Dailey’s motion for a reduction in his sentence based on Amendment 668 and the
advisory Guidelines. For the above-stated reasons, we affirm the district court’s
order denying Dailey’s motion to reduce his sentence.
AFFIRMED.
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