[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10529 JAN 4, 2007
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 91-00272-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCO ANTONIO FERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 4, 2007)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Marco Antonio Fernandez, a pro se federal prisoner, appeals the district
court’s denial of his motion seeking modification of his sentence, pursuant to 18
U.S.C. § 3582(c)(2). In 1991, authorities arrested Fernandez after he had
attempted to participate in a drug “rip off” of 50 kilograms of cocaine. Authorities
recovered several firearms on his person and from a rental vehicle, which was
going to be used for the cocaine “rip off.” Fernandez was charged with possession
of a firearm by a convicted felon, pursuant to 18 U.S.C. §§ 922 and 924(e). He
pled guilty to possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). The base offense level used to calculate his sentence for his §
922(g) conviction was determined by his attempt to “rip off” 50 kilograms of
cocaine and then was enhanced by two levels on the ground that Fernandez
possessed several dangerous firearms during the commission of the attempted
offense. In October 2005, Fernandez filed the instant motion for modification of
his sentence, pursuant to § 3582(c)(2), arguing, among other things, that
Amendment 599 to the Sentencing Guidelines and the Supreme Court’s holding in
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),
permitted a reduction of his sentence. The district court denied Fernandez’s
motion for modification, finding that: (1) Amendment 599 was inapplicable to his
case because it applies only to convictions under 18 U.S.C. § 924(c), criminalizing
the carrying of a firearm during and in relation to a drug offense, and not to
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convictions under § 922(g); and (2) a Booker claim is not cognizable under
§ 3582(c)(2).
On appeal, Fernandez argues that the district court abused its discretion in
determining that Amendment 599 does not apply to convictions under § 922(g)(1),
as the Sentencing Commission’s intention that Amendment 599 also applies to
§ 922(g) convictions is evidenced by the Commission’s use of a case involving a
§ 922(g) conviction, in the absence of a § 924(c) conviction, to illustrate the proper
application of the amendment. He argues that the Sentencing Commission’s intent
to prohibit double counting would be frustrated if a district court could calculate a
defendant’s base offense level using an offense not charged, and then enhance the
sentence for possession of firearms in connection with that offense, all the while
the defendant is actually being convicted of a firearm possession offense.
Additionally, Fernandez argues that the district court erred because the Supreme
Court’s decision in Booker amounts to a “formal ‘clarification’” of the guidelines,
and thus, can be applied retroactively under § 3582(c)(3) to reduce his sentence.
We review a district court’s decision of whether to reduce a sentence
pursuant to § 3582(c)(2) for an abuse of discretion. United States v. Vautier, 144
F.3d 756, 759 n. 3 (11th Cir. 1998). According to § 3582(c)(2), a district court is
permitted to modify a defendant’s sentence if his sentencing range subsequently
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has been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).
18 U.S.C. § 3582(c)(2).
Amendment 599 amended the commentary to U.S.S.G. § 2K2.4, which
provides the base offense level for individuals who have violated either 18 U.S.C.
§§§ 844(h), 924(c), or 929(a). U.S.S.G. App. C, Amendment 599; see also
U.S.S.G. § 2K2.4. Amendment 599 provides that, “[i]f a sentence under [§2K2.4]
is imposed in conjunction with a sentence for an underlying offense, do not apply
any specific offense characteristics for possession, brandishing, use, or discharge
of an explosive or firearm when determining the sentence for the underlying
offense.” U.S.S.G. App. C., Amendment 599. The purpose of Amendment 599
was “to clarify under what circumstances defendants sentenced for violations of 18
U.S.C. § 924(c) in conjunction with convictions for other offenses may receive
weapon enhancements contained in the guidelines for those other offenses.” Id.;
see also United States v. Diaz, 248 F.3d 1065, 1106-07 (11th Cir. 2001) (“The first
sentence of the new application note reinforces what courts have always known
when a defendant is convicted of a § 924(c) violation and an underlying offense,
the defendant's possession of a weapon cannot be used to enhance the level of the
underlying offense”). It was intended to prevent double counting for firearm use in
any one criminal event. United States v. Pringle, 350 F.3d 1172, 1180 (11th Cir.
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2003).
Amendment 599 to the Sentencing Guidelines is inapplicable to Fernandez,
because he did not violate 18 U.S.C. §§§ 844(h), 924(c), or 929(a). Additionally,
because the Supreme Court’s holding in Booker, 543 U.S. 220, 125 S.Ct. 738, is
not a guideline amendment made retroactively applicable, the district court did not
abuse its discretion in denying Fernandez’s motion to reduce his sentence.
Accordingly, we affirm.
AFFIRMED.
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