[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12726
DECEMBER 9, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 1:96-cr-00798-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SYLVESTER REID,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 9, 2011)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Sylvester Reid, a federal prisoner proceeding pro se, appeals his total 610
months’ sentence imposed after the district court granted his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentences based on Amendment 599 to the
Sentencing Guidelines.
After a 1996 jury trial, Reid was convicted of three counts of Hobbs Act
robbery, in violation of 18 U.S.C. § 1951(a) (Counts One, Three and Five) and
three counts of using a firearm during and in relation to the robberies, in violation
of 18 U.S.C. § 924(c) (Counts Two, Four and Six). At sentencing, the district
court, among other things, applied a five-level “specific offense characteristic”
increase for Counts One, Three and Five (the robberies) because Reid had
brandished a firearm. See U.S.S.G. § 2B3.1(b)(2)(C). The district court imposed
concurrent 120-month sentences on Counts One, Three and Five; a mandatory
consecutive 60-month sentence on Count Two; and mandatory consecutive 240-
month sentences on Counts Four and Six, for an initial total 660-month sentence.
Reid appealed his convictions, but not his sentences. This Court affirmed. See
United States v. Reid, No. 98-4337 (11th Cir. Aug. 20, 1999) (unpublished).
On November 1, 2000, Amendment 599 amended the commentary to
U.S.S.G. § 2K2.4, which provides the base offense level for a defendant who
commits a § 924(c) offense. After Amendment 599, if the district court imposes a
2
§ 924(c) sentence “in conjunction with a sentence for the underlying offense” the
court “do[es] 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, amend. 599.
In 2008, Reid filed a pro se § 3582(c)(2) motion based on Amendment 599.
Reid argued that under Amendment 599, his consecutive, twenty-year sentences
on Counts Four and Six were improper because they were charged in a single
indictment. The district court denied Reid’s § 3582(c)(2) motion. On appeal, this
Court affirmed the district court as to Counts Two, Four and Six (the firearm
counts) because Amendment 599 had no effect on those sentences. However, the
Court vacated and remanded as to Counts One, Three and Five (the robbery
counts) because application of Amendment 599 eliminated the “specific offense
characteristic” enhancement of U.S.S.G. § 2B3.1(b)(2)(C), which resulted in a new
guidelines range of 70 to 87 months’ imprisonment on those counts. See United
States v. Reid, 364 F. App’x 554 (11th Cir. 2010). As noted earlier, the original
sentence on these counts was 120 months concurrently.
On remand, Reid was represented by counsel and argued, inter alia, that the
district court should resentence Reid to a single mandatory 60-month sentence on
Counts One, Three and Five because they were charged in the same indictment
3
and the sentences were imposed on the same day.1 The district court granted
Reid’s § 3582(c)(2) motion and imposed three concurrent 70-month sentences, at
the low end of the new, amended guidelines range, as to Counts One, Three and
Five. The district court ran the three, new 70-month sentences concurrent to each
other, but consecutive to the unchanged sentences for Counts Two, Four and Six,
for a total of 610 months.
On appeal, Reid argues that: (1) his 1996 indictment was flawed because it
did not identify with sufficient specificity under which subsection of § 924(c) he
was charged; (2) Counts Four and Six should not have received consecutive,
twenty-year sentences as “second or subsequent” convictions under § 924(c)
because those offenses were charged in the same indictment as Count Two; and
(3) remand is necessary because the district court failed to address these arguments
when it granted his § 3582(c)(2) motion.
The problem for Reid is that his claims are outside the scope of his
1
Reid also argued that, pursuant to Pepper v. United States, 562 U.S. ___, 131 S. Ct. 1229
(2011), he was entitled to a full resentencing hearing, including consideration of his post-
sentencing rehabilitation. Even construed liberally, Reid’s pro se appellate brief does not raise
this argument, and thus he has abandoned it. See Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008) (explaining that, although we construe pro se pleadings liberally, “issues not briefed
on appeal by a pro se litigant are deemed abandoned”).
4
§ 3582(c)(2) motion.2 Under § 3582(c)(2), the district court may reduce an
incarcerated defendant’s term of imprisonment when the defendant has been
sentenced pursuant to a guidelines range “that has subsequently been lowered by
the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). However, a § 3582(c)(2)
proceeding “does not constitute a de novo resentencing” and “all original
sentencing determinations remain unchanged with the sole exception of the
guideline range that has been amended since the original sentencing.” United
States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000).
Here, only the sentences for Counts One, Three and Five received the
“specific offense characteristic” enhancement eliminated by Amendment 599. As
such, these were the only sentences the district court could modify. The district
court lacked the authority under § 3582(c)(2) to consider Reid’s arguments
regarding his indictment and his sentences for Counts Two, Four and Six.3
Accordingly, the district court properly limited its determination to whether to
reduce Reid’s sentences on Counts One, Three and Five.
2
We review de novo the district court’s legal conclusions regarding the scope of its
authority under 18 U.S.C. § 3583(c)(2). United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.
2008).
3
Reid’s arguments are also barred by the law of the case doctrine because he did not raise
them in his direct appeal after his original sentencing. See United States v. Escobar-Urrego, 110
F.3d 1556, 1560 (11th Cir. 1997).
5
AFFIRMED.
6