United States v. James Marcellus Davis, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13534 ELEVENTH CIRCUIT
December 18, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 93-00148-CR-ORL-18-DAB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES MARCELLUS DAVIS, JR.,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(December 18, 2008)

Before TJOFLAT, BIRCH, and DUBINA, Circuit Judges.

PER CURIAM:

James Marcellus Davis, Jr. appeals pro se the district court’s judgment
denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2).

The district court concluded that Davis was not eligible for a reduction under

§ 3582(c)(2) because Amendment 706 to the United States Sentencing Guidelines

did not lower his base offense level. For the reasons that follow, we AFFIRM.

I. BACKGROUND

In February 1994, Davis was convicted in a jury trial of conspiracy to

possess with intent to distribute fifty grams or more of cocaine base, in violation of

21 U.S.C. §§ 841(b)(1)(A)(iii) and 846. See R1-857. The United States District

Court for the Middle District of Florida determined that his base offense level

would be 42 under U.S.S.G. § 2D1.1(c)(9) (Nov. 1993) because he was responsible

for more than fifteen kilograms of crack cocaine. See R1-852. The court added

four offense levels to this amount for a total offense level of 46, which was capped

at 43. See id. On the basis of this offense level, the district court sentenced him to

life imprisonment. See id. In October 1997, Davis was resentenced to 360 months

of imprisonment because Amendment 505 to the sentencing guidelines reduced the

base offense level for offenses which involved more than 1.5 kilograms of cocaine

from 42 to 38. See U.S.S.G. App. C, Amend. 505 (Nov. 1997).

In November 2007, the Sentencing Commission issued Amendment 706 to

the sentencing guidelines, which amended the Drug Quantity Table in U.S.S.G.

2
§ 2D1.1(c) to provide a two-level reduction in the base offense levels for particular

crack cocaine offenses. See U.S.S.G. App. C, Amend. 706 (Nov. 2007). The

Commission made this amendment retroactively applicable effective 3 March

2008. See U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008) (listing Amendment

706 under U.S.S.G. § 1B1.10(c) as a retroactively applicable amendment). As a

result of these amendments, defendants who were responsible for between 1.5 and

less than 4.5 kilograms of crack would have their base offense levels reduced from

38 to 36. See U.S.S.G. § 2D1.1(c)(1), (2). Those who were responsible for 4.5 or

more kilograms, though, would still have a base offense level of 38. See id. at

§ 2D1.1(c)(1).

In January 2008, Davis filed a motion to reduce his sentence based on

Amendment 706. See R1-808. In March 2008, the district court appointed a

federal public defender to represent him and ordered Davis and the government to

file memoranda regarding the effect of Amendments 706 and 713 on Davis’s

sentence. See R1-818. After receiving the memoranda, the district court

determined that Davis was ineligible for a sentence reduction because those

amendments did not have the effect of lowering his base offense level. See R1-

860. Any sentence reduction thus would be both unauthorized by the guidelines

and inconsistent with the policy behind them. See id. The federal public defender

3
subsequently withdrew from the case and Davis has appealed this decision pro se.

II. DISCUSSION

For proceedings involving sentence modifications under 18 U.S.C.

§ 3582(c)(2), “we review de novo the district court’s legal conclusions regarding

the scope of its authority under the Sentencing Guidelines.” United States v.

White, 305 F.3d 1264, 1267 (11th Cir. 2002) (per curiam). The decision whether

to reduce a sentence pursuant to that statute is reviewed for abuse of discretion.

See United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003). Since Davis is

filing pro se, we analyze his pleadings under a liberal standard. See Hughes v.

Lott, 350 F.3d 1157, 1160 (11th Cir. 2003).

Davis’s argument on appeal focuses on the district court’s finding that one

of his co-defendants, Johnny Lee Chapple, was eligible for a two-level sentencing

reduction from base offense level 38 to level 36 based on Amendment 706.1 Davis

asserts that this response indicated that the court erred in concluding that it did not

have jurisdiction to reduce his sentence.2 He further contends that the court’s

refusal to resentence him based on a reduced offense level constituted an equal

1
In reaching this conclusion, the court focused on the uncertainty regarding the amount
of crack cocaine for which Chapple was responsible. Since it was possible that the amount made
him eligible for the reduction, the court construed the ambiguity in his favor.
2
Though Davis describes this as an abuse of discretion, since it is a legal question, we
review it de novo.

4
protection violation because it created an unwarranted disparity between his

sentence and that of a codefendant who was originally sentenced based on the

same base offense level and criminal history.3

A district court only has jurisdiction to reduce a defendant’s sentence if a

guidelines amendment actually lowers his sentencing range, regardless of whether

the policy behind the amendment arguably impacted the defendant. See 18 U.S.C.

§ 3582(c)(2); U.S.S.G. § 1B1.10(2)(B) (forbidding sentence reduction if an

amendment does not have the effect of lowering the defendant’s applicable

guideline range). Davis does not contest that he was held responsible for more

than 4.5 kilograms of crack cocaine. His base offense level is still 38, so his

sentencing range has not been changed by Amendment 706. The district court thus

properly found that it had no jurisdiction to reduce his sentence. See United States

v. Jones, — F.3d —, No. 08-13298, 2008 WL 4934033 (11th Cir. Nov. 19, 2008)

(rejecting sentence reduction based on Amendment 706 for defendant responsible

for more than 4.5 kilograms of crack cocaine).

Davis’s equal protection argument is also unavailing. District courts can

exercise jurisdiction to resentence a defendant based only on certain motions by the

3
Though Davis did not raise the equal protection argument before the district court, we
review it de novo rather than for plain error because Chapple was not re-sentenced until after the
court had denied Davis’s motion.

5
Bureau of Prisons, on Rule 35 motions by the government, and on guidelines

amendments that lower the sentencing range of the defendant. See 18 U.S.C.

§ 3582. An equal protection violation, on its own, would not fall under any of

those categories and thus could not serve as an independent jurisdictional basis,

regardless of the merits of the equal protection claim. Accordingly, we find that

the district court correctly determined that it did not have jurisdiction to reduce

Davis’s sentence.

III. CONCLUSION

The district court properly denied Davis’s motion for a sentence reduction

based on Amendment 706. The court lacked jurisdiction to reduce his sentence

because his guideline range was not changed by Amendment 706, and the alleged

equal protection violation in sentencing could not create this jurisdiction.

Accordingly, we AFFIRM the district court’s denial of Davis’s motion.

AFFIRMED.