[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 16, 2012
No. 11-15896
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 9:98-cr-08105-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BYRON KEITH THOMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 16, 2012)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Byron Keith Thomas, a federal prisoner convicted of two crack cocaine
offenses and a firearm offense, appeals the denial of his 18 U.S.C. § 3582(c)(2)
motion for a sentence reduction. After review, we affirm.1
Under § 3582(c)(2), a district court has the authority to modify a
defendant’s term of imprisonment if the defendant’s sentence was “based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. [§] 994(o).” 18 U.S.C. § 3582(c)(2); see also
U.S.S.G. § 1B1.10(a)(1). However, if the retroactively applicable amendment to
the guidelines “reduce[d] a defendant’s base offense level, but does not alter the
sentencing range upon which his or her sentence was based, § 3582(c)(2) does not
authorize a reduction in sentence.” United States v. Moore, 541 F.3d 1323, 1330
(11th Cir. 2008); see also U.S.S.G. § 1B1.10(a)(2)(B).
A sentence reduction is not authorized if the amendment does not lower a
defendant’s applicable guidelines range “because of the operation of another
guideline or statutory provision.” U.S.S.G. § 1B1.10 cmt. n.1(A). Thus, when
defendant’s applicable guidelines range is determined by his status as an armed
career criminal, pursuant to U.S.S.G. § 4B1.4, and not by the amount of crack
1
“We review de novo a district court’s conclusions about the scope of its legal authority
under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983, 984 (11th Cir. 2008).
2
cocaine involved in his offense, pursuant to U.S.S.G. § 2D1.1(c), the defendant is
not eligible for § 3582(c)(2) relief based on recent amendments to the base offense
levels in § 2D1.1(c) for crack cocaine offenses. See, e.g., United States v.
Thomas, 545 F.3d 1300, 1301-02 (11th Cir. 2008) (involving § 3582(c)(2) motion
based on Amendment 706).
Here, the district court did not err in denying Thomas’s § 3582(c)(2)
motion. Thomas’s motion was based on Amendment 750, which changed the drug
quantity tables in U.S.S.G. § 2D1.1(c) to conform to the Fair Sentencing Act of
2010. See U.S.S.G. app. C, amends. 750, 759 (making Amendment 750
retroactive); U.S.S.G. § 1B1.10(c) (listing Amendment 750 as an amendment for
which a defendant may file a § 3582(c)(2) motion). Because Thomas was
designated an armed career criminal at his original sentencing, his offense level
was based on U.S.S.G. § 4B1.4, not on the drug quantity tables in U.S.S.G.
§ 2D1.1(c). See Thomas, 545 F.3d at 1301.2 Thus, Amendment 750 had no effect
on Thomas’s ultimate sentencing range.
2
Thomas involved a prior § 3582(c)(2) motion filed by the same defendant, Byron Keith
Thomas, but brought pursuant to Amendment 706, a 2007 amendment that lowered the offense
levels in U.S.S.G. § 2D1.1(c) for crack cocaine offenses. In Thomas, we affirmed the district
court’s denial of Thomas’s § 3582(c)(2) motion because Thomas was sentenced as an armed
career criminal under U.S.S.G. § 4B1.4. 545 F.3d at 1301. Thomas concedes that our earlier
Thomas opinion controls, but states that he brings his challenge to preserve it for possible future
appeals.
3
We find no merit to Thomas’s argument that he is eligible for § 3582(c)(2)
relief because U.S.S.G. § 4B1.4’s armed career criminal enhancement applied only
to his firearm conviction (Count 1) and not to his two crack cocaine convictions
(Counts 2 and 3). At sentencing, the district court grouped all three counts for
purposes of calculating Thomas’s offense level, pursuant to U.S.S.G. § 3D1.2(c).
The court then determined that the applicable offense level was 34, pursuant to
U.S.S.G. § 4B1.4(b)(3)(A). Thus, Thomas’s offense level for all three counts was
based on § 4B1.4(b)(3)(A), which was not changed by Amendment 750.
For these reasons, the district court correctly concluded that Thomas was
ineligible for a § 3582(c)(2) sentence reduction.
AFFIRMED.
4