[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 26, 2008
No. 08-11735 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-06018-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ANTHONY DEWITT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 26, 2008)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Michael Anthony Dewitt appeals, pro se, the district court’s denial of his
motion for modification of sentence, pursuant to 18 U.S.C. § 3582(c)(2). Dewitt
argues that Amendments 706 and 715, both retroactively applicable, alter his
guideline imprisonment range. The government concedes that the district court
erred and that Amendments 706 and 715 reduce Dewitt’s guideline imprisonment
range. For the reasons set forth below, we remand.
I.
Dewitt was indicted in Case No. 98-6097 for, inter alia, possession with
intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Dewitt
was indicted in Case No. 99-6018 for possession with intent to distribute cocaine,
in violation of § 841(a)(1). On Dewitt’s unopposed motion, the district court
consolidated Case No. 98-6097 and Case No. 99-6018 for the purposes of pleading
and sentencing.
Dewitt was responsible for 119.4 grams of crack cocaine in relation to Case
No. 98-6097 and 141.3 grams of cocaine and 4.4 grams of crack cocaine in relation
to Case No. 99-6018. At sentencing, the district court grouped Dewitt’s offenses,
pursuant to U.S.S.G. § 3D1.2(d), and converted to their marijuana equivalents and
added together the drug quantities involved, pursuant to U.S.S.G. § 2D1.1,
comment. (n. 6). Accordingly, the district court held Dewitt accountable for 2,504
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kilograms of marijuana. Based on this calculation, the district court set Dewitt’s
base offense level at 32, pursuant to U.S.S.G. § 2D1.1. Based on the application of
enhancements and reductions not at issue here, the district court set Dewitt’s total
offense level at 35. The district court set Dewitt’s criminal history category at I
and determined that his guideline imprisonment range was 168 to 210 months.
Ultimately, the district court sentenced Dewitt to 180 months’ imprisonment as to
Case No. 98-6097 and 180 months’ imprisonment as to Case No. 99-6018, with
these terms to be served concurrently.
On March 11, 2008, Dewitt filed a motion to reduce sentence, pursuant to
§ 3582(c)(2). Dewitt argued that the guideline imprisonment range for his crack-
cocaine offense subsequently had been lowered by Amendment 706 to the
Sentencing Guidelines. On March 28, 2008, the district court denied Dewitt’s
§ 3582(c)(2) motion. The district court reasoned that Dewitt’s motion was moot
because, “[w]hile [Dewitt] may be entitled to a reduction in sentence for the crack
cocaine offense, because that sentence was set to run concurrently with the cocaine
sentence, which [was] of equal length, a reduction of the crack cocaine sentence
would not reduce [Dewitt’s] term of imprisonment.” Dewitt filed a motion for
reconsideration, which the district court denied.
II.
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We review a district court’s refusal 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). Under § 3582(c)(2), a district court may reduce an
already-incarcerated defendant’s sentence if the defendant’s sentence was
determined using a guideline imprisonment range that subsequent retroactive
amendments to the Guidelines have reduced and if the district court has considered
the applicable factors set forth in 18 U.S.C. § 3553(a) and has determined that a
reduction would be consistent with the policy statements issued by the Sentencing
Commission.1 18 U.S.C. § 3582(c); United States v. Bravo, 203 F.3d 778, 780-81
(11th Cir. 2000). We have held that, when confronted with a § 3582(c)(2) motion,
the district court must apply the following two-step analysis:
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.
Vautier, 144 F.3d at 760 (citations omitted).
1
The parties do not dispute that Amendments 706 and 715 are retroactive. Indeed, those
amendments listed in U.S.S.G. § 1B1.10(c) may be applied retroactively through a § 3582(c)(2)
motion, and Amendments 706 and 715 are listed in § 1B1.10(c). See United States v. Pelaez,
196 F.3d 1203, 1205 n.3 (11th Cir. 1999); U.S.S.G. 1B1.10(c).
4
By way of Amendment 706, the Commission amended the U.S.S.G.
§ 2D1.1(c) drug quantity table to reduce crack-cocaine offense levels by two.
U.S.S.G. App. C, Amend. 706.
By way of Amendment 711, which was in effect when the district court
considered Dewitt’s motion, the Commission instructed district courts to calculate
the offense levels for offenses involving both crack cocaine and another drug by
(1) determining the base offense level for the amount of crack cocaine involved;
(2) applying that base offense level to a “Marijuana equivalency” table to
determine an equivalent amount of marijuana; (3) determine the marijuana
equivalency for the other drug amount involved using the traditional conversion
method; and (4) add together all of the marijuana amounts calculated and
determine the base offense level for this total amount of marijuana. U.S.S.G. App.
C, Amend. 711.
By way of Amendment 715, which came into effect on May 1, 2008, the
Commission undid Amendment 711 and instructed district courts to calculate the
offense levels for offenses involving both crack cocaine and another drug by
(1) determine the marijuana equivalency for all of the drug amount involved using
the traditional conversion method; (2) subtract two levels from that amount; and
(3) determine the base offense level for this altered amount of marijuana. U.S.S.G.
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App. C, Amendment 715.
III.
The district court abused its discretion in denying Dewitt’s § 3582(c)(2)
motion. See Vautier, 144 F.3d 756, 759 n.3. In concluding that the motion was
moot because Dewitt would have to serve a 180-month sentence for his cocaine
offense regardless of any modification of the sentence for his crack-cocaine
offense, the district court overlooked that the sentences were reached using a
combined offense level that took into account the amounts of cocaine and crack
cocaine involved. Also, the district court failed to apply the requisite two-step
analysis. See id. The district court did not determine the guideline imprisonment
range that would result from the method described in Amendment 711 or apply
§ 3553(a) to determine whether a modification was merited. Accordingly, the
district court abused its discretion, and we remand the case for reconsideration of
Dewitt’s motion. See id.
We decline to apply Amendment 711 ourselves to determine whether a
different guideline imprisonment range would have resulted, as Amendment 711
no longer is in effect. We note, however, that under now-effective Amendment
715, Dewitt’s base offense level would be 30, total offense level 33, and guideline
imprisonment range 135 to 168 months. See U.S.S.G. App. C, Amend. 715. This
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range is significantly lower than that calculated by the district court. On remand,
the district court should consider the effect of Amendment 715.
REMANDED.
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