[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12174 ELEVENTH CIRCUIT
APRIL 13, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Docket No. 1:04-cr-21018-JIC-11
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAPATRICK DEON MCINTOSH,
a.k.a. Pat,
a.k.a. Lapatrick Deon Macintoch,
a.k.a. Fat,
Defendant-Appellant.
_________________________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________________________
(April 13, 2012)
Before EDMONDSON, WILSON, and BLACK, Circuit Judges.
PER CURIAM:
LaPatrick Deon McIntosh, a pro se federal prisoner convicted of a crack
cocaine offense, appeals the district court’s denial of his motion for a sentence
reduction -- pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the
Sentencing Guidelines1 -- and his motion for reconsideration. No reversible error
has been shown; we affirm.2
During McIntosh’s original sentencing proceeding, a probation officer
calculated McIntosh’s total offense level as 38 -- pursuant to U.S.S.G. §
2D1.1(c)(3) and (b)(1) -- based on McIntosh’s possession of 1 kilogram of cocaine
base and his possession of a dangerous weapon. The probation officer then
concluded that McIntosh qualified as a career offender and that his resulting
offense level under U.S.S.G. § 4B1.1(b) was 37. Because McIntosh’s offense
level under section 4B1.1 was not “greater than the offense level otherwise
applicable,” McIntosh’s total offense level remained 38. McIntosh then received a
criminal history category of VI under section 4B1.1(b) because of his career
offender designation. McIntosh’s guidelines range was calculated as 360 months’
1
Amendment 706 retroactively reduced by two the base offense levels of crack cocaine sentences
calculated pursuant to the drug quantity table, U.S.S.G. § 2D1.1(c). U.S.S.G. App. C, Amend. 713
(Supp. 1 May 2008).
2
We review de novo the district court’s legal conclusions about the scope of its authority in a
section 3582(c)(2) proceeding. United States v. James, 548 F.3d 983, 984 (11th Cir. 2008).
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to life imprisonment; and the district court sentenced McIntosh to 360 months’
imprisonment.
When a sentencing guideline is amended and given retroactive effect, the
district court may reduce an already incarcerated defendant’s term of
imprisonment under the amendment “if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. §
3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). A reduction of a term of
imprisonment is not “consistent with applicable policy statements issued by the
Sentencing Commission” -- and is, therefore, unauthorized under section
3582(c)(2) -- if the retroactive amendment “does not have the effect of lowering
the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
Applying Amendment 706 retroactively to McIntosh’s case, his total
adjusted offense level under section 2D1.1 would become 36 instead of 38. This
includes a base offense level of 34 because he was held responsible for 1 kilogram
of cocaine base and a 2-level enhancement for possession of a dangerous weapon.
Because McIntosh’s career offender offense level of 37 is now higher than the
modified offense level of 36, his total offense level becomes 37 under section
4B1.1(b). See U.S.S.G. § 4B1.1(b) (providing that “if the offense level for a
career offender . . . is greater than the offense level otherwise applicable, the
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[career offender] offense level . . . shall apply”). Based on an offense level of 37
and a criminal history category of VI, McIntosh’s guidelines range is still 360
months’ to life imprisonment. Because the application of Amendment 706 did not
lower McIntosh’s applicable guidelines range, he is ineligible for relief under
section 3582(c)(2).
AFFIRMED.
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