[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 13, 2008
THOMAS K. KAHN
No. 06-12034
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 94-06228-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUDOLPH WELLINGTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 13, 2008)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Rudolph Wellington, pro se, appeals the district court’s denial of his
18 U.S.C. § 3582 motion to modify his sentences. Following a jury trial,
Wellington was convicted of carjacking, in violation of 18 U.S.C. §§ 2119, 2
(“Count One”); and use of a firearm during the commission of a crime of violence,
in violation of 18 U.S.C. § 924(c) (“Count Two”). At a resentencing hearing, the
district court imposed a 128-month term of imprisonment on Count One, to be
followed by a 60-month term on Count Two, or a total custodial term of 188-
months. Before the district court, Wellington argued that his total sentence should
be reduced retroactively pursuant to Amendment 599 of the Sentencing Guidelines.
The district court declined to do so, and we liberally construe Wellington’s pro se
brief to challenge this on appeal.1 See Mederos v. United States, 218 F.3d 1252,
1254 (11th Cir. 2000) (discussing that pro se filings are entitled to liberal
construction). Wellington further argues that the district court erred in denying his
motion to modify because his trial counsel was ineffective, or because his
sentences violated his due process and Eighth Amendments rights, the Double
Jeopardy clause of the Constitution, and United States v. Booker, 543 U.S. 220,
1
We reject the government’s argument on appeal that we lack jurisdiction over this
appeal because Wellington filed his motion to modify under Fed.R.Civ.P. 60(b). Wellington
explicitly requested in his present motion that the district court “modify his sentence under Title
18 [U.S.C.] § 3582(c)(2),” and he asserted that the court could exercise subject matter
jurisdiction over his case pursuant to that statute. Moreover, he did not mention Fed.R.Civ.P.
60(b) in his present motion to modify. Thus, we conclude that Wellington properly filed his
modification motion according to § 3582(c)(2).
2
125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
I.
We generally review a district court’s decision not to reduce a sentence
pursuant to 18 U.S.C. § 3582(c)(2) for an abuse of discretion. United States
v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005). However, where the issue
presented involves a purely legal interpretation of a sentencing guideline, our
review is de novo. United States v. Pringle, 350 F.3d 1172, 1178 (11th Cir. 2003).
A district court ordinarily lacks subject matter jurisdiction to modify a term
of imprisonment once imposed. Moreno, 421 F.3d at 1219. However, 18 U.S.C.
§ 3582 creates an exception:
in the case of 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).2
2
A second exception – involving motions to vacate under 28 U.S.C. § 2255 – is not
applicable here because the district court denied such a motion by Wellington, on the merits, in
April 2001, and he did not obtain leave from us to file a successive motion, as required by
28 U.S.C. § 2255, cross-referencing 28 U.S.C. § 2244 (as amended).
3
The Sentencing Commission, through the Sentencing Guidelines, has stated
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). Amendment 599, which became effective in November
2000, after Wellington was resentenced, is listed as an amendment covered by the
policy statement pursuant to U.S.S.G. § 1B1.10(c). Pringle, 350 F.3d at 1179.
This amendment “was enacted in order to clarify under what circumstances a
weapons enhancement may properly be applied to an underlying offense when the
defendant has also been convicted for the use or possession of a firearm pursuant
to 18 U.S.C. § 924(c).” Id.
As amended by Amendment 599, Application Note 4 to § 2K2.4 now
provides:
If a sentence under this guideline [U.S.S.G. § 2K2.4] 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.
...
In a few cases . . . the offense level for the underlying
4
offense . . . may result in a guideline range that, when
combined with the mandatory consecutive sentence
under [18 U.S.C. § 924(c)] . . . produces a total maximum
penalty that is less than the maximum of the guideline
range that would have resulted had there not been a count
of conviction under . . . § 924(c) . . . . In such a case, an
upward departure may be warranted so that the
conviction under . . . § 924(c) . . . does not result in a
decrease in the total punishment. An upward departure
under this paragraph shall not exceed the maximum of
the guideline range that would have resulted had there
not been a count of conviction under . . .§ 924(c)[.]
U.S.S.G. § 2K2.4, app. n.4.
Upon review of the record, and upon consideration of the briefs of the
parties, we find no reversible error. The district court properly denied
Wellington’s motion to modify his sentences pursuant to Amendment 599. The
district court, in calculating Wellington’s adjusted offense level for Count One at
the resentencing hearing, did not apply a specific offense characteristic for
possession, brandishing, using, or discharging a firearm, pursuant to U.S.S.G.
§ 2B3.1(b)(2). To the contrary, the district court applied a six-level enhancement,
pursuant to U.S.S.G. § 2B3.1(b)(3)(C), because the victim sustained permanent
bodily injury.
Moreover, while the district court applied an upward departure under
U.S.S.G. § 2K2.4 (1993 amendments), it complied fully with that guideline’s
requirement that an upward departure not exceed the maximum of the sentencing
5
range that would have resulted had there not been a count of conviction under
§ 924(c).3 Specifically, the court imposed a total resentence of 188 months’
imprisonment, which would have been the very top of Wellington’s sentencing
range had he not been convicted of Count Two (the § 924(c) offense), given that
his adjusted offense level would have been 34 (based on the 29 points described in
the PSI and a maximum of 5 additional points for discharging a firearm),4 and his
criminal history category was I.
Thus, because Amendment 599 was not applicable, the district court
properly denied Wellington’s present § 3582 motion.
II.
We also conclude that Wellington’s other constitutional, Booker, and
ineffective assistance claims lack merit. First, Wellington did not include an
3
U.S.S.G. § 2K2.4, cmt. n.2, provided, in relevant part, that “[i]n a few cases, the offense
level for the underlying offense . . . may result in a guideline range that, when combined with the
mandatory consecutive sentence under [18 U.S.C. § 924(c)] . . . produces a total maximum
penalty that is less than the maximum of the guideline range that would have resulted had there
not been a count of conviction under . . . § 924(c) . . . . In such a case, an upward departure may
be warranted so that the conviction under . . . § 924(c) . . . does not result in a decrease in the
total punishment. An upward departure under this paragraph shall not exceed the maximum of
the guideline range that would have resulted had there not been a count of conviction under . . .
§ 924(c)[.]”
4
A five-level enhancement for discharging the firearm was the maximum enhancement
that could be applied because, under U.S.S.G. § 2B3.1(b)(3), the cumulative enhancements from
subsections (2) and (3) of U.S.S.G. § 2B3.1(b) could not exceed 11-levels, and the district court
already had applied a 6-level increase under subsection (b)(3) because the victim sustained
permanent bodily injury.
6
Eighth Amendment or ineffective assistance claim in his § 3582 motion, but only
raised them in his “Motion to Issue C.O.A. or Make Alternative Finding,” which
was attached to his notice of appeal. Second, even if these two claims were raised
below or are otherwise properly preserved on appeal, neither of them, nor his other
constitutional or Booker claims, involves a retroactively applicable guideline
amendment by the Sentencing Commission, and so they fall outside the scope of
§ 3582, and the district court lacked subject matter jurisdiction to consider them.
See, e.g., Moreno, 421 F.3d at 1220 (“Booker is a Supreme Court decision, not a
retroactively applicable guideline amendment by the Sentencing Commission.
Therefore, Booker is inapplicable to § 3582(c)(2) motions”). Finally, as discussed
previously, Wellington’s § 3582 motion cannot be liberally construed as a § 2255
motion, since he had unsuccessfully sought habeas relief previously, and had not
received permission from this Court to file a successive motion.
AFFIRMED.
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