[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 23, 2009
No. 08-16557 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 02-00450-CR-T-24-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIAN DELEON MONROE,
a.k.a. Julu,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 23, 2009)
Before BARKETT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Julian Deleon Monroe appeals the district court’s denial of his pro se 18
U.S.C. § 3582(c)(2) motion. In August 2003, Monroe pleaded guilty to possession
with intent to distribute cocaine base, 21 U.S.C. § 841 (a)(1) and (b)(1)(B)(iii). At
the original sentencing hearing, the district court found that Monroe was a career
offender, but noted that his total offense level - 31 - would be the same under either
the drug quantity guideline, U.S.S.G. § 2D1.1(c), or the career offender guideline,
§4B1.1(b). The court sentenced Monroe to 188 months’ imprisonment.
In 2008, Monroe filed the present § 3582(c)(2) motion, requesting a sentence
reduction based on Amendment 706 to the Sentencing Guidelines. The district
court noted that, although Amendment 706 reduced Monroe’s total offense level
under § 2D1.1(c) from 31 to 29, it did not have any effect on Monroe’s § 4B1.1(b)
offense level, which remained at 31. Therefore, the district court concluded that
Amendment 706 did not have the effect of lowering Monroe’s guideline range, and
denied his § 3582(c)(2) motion. Monroe now appeals, arguing that he was
originally sentenced under the drug quantity guideline, and, therefore, is eligible
for a sentence reduction based on Amendment 706.
We “review de novo a district court’s conclusions regarding 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).
Section 3582(c)(2) gives federal courts the authority to consider reducing the
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sentence “of a defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission.” A district court must follow a two-step process in ruling on a
§ 3582(c)(2) motion. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000).
First, the court must recalculate the defendant’s sentence “by “substituting the
amended guideline range for the originally applied guideline range, and then using
that new base offense level to determine what ultimate sentence it would have
imposed.” Id. In other words, the court “shall determine the amended guideline
range that would have been applicable to the defendant if the amendment(s) . . .
had been in effect at the time that the defendant was sentenced.” U.S.S.G.
§ 1B1.10(b)(1) (Supp. May 1, 2008). Under the second step, the court must decide
whether to retain the original sentence or to resentence the defendant under the
amended guideline range. Id. at 781.
A career offender’s base offense level is determined by using either the
offense level which would ordinarily apply under Chapters 2 and 3, or, if it results
in a higher offense level, the table in § 4B1.1(b). U.S.S.G. § 4B1.1(b) (emphasis
added). Thus, where, as here, a defendant’s offense level would be the same,
sentencing under Chapters 2 and 3 is contemplated.
In United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), we held that
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defendants who were originally sentenced under § 4B1.1(b)'s career offender table
were not eligible for § 3582(c)(2) relief because their guideline ranges were not
based on the drug quantity offense levels which had been lowered by Amendment
706. Moore, 541 F.3d at 1327-29. The Moore decision, however, did not address
the applicability of Amendment 706 to a career offender who was originally
sentenced based on the drug quantity guideline.
In this case, Monroe was originally sentenced as a career offender, but his
base offense level was determined under § 2D1.1(c) because application of
§ 4B1.1(b) did not result in a higher offense level. Because of Monroe’s status as a
career offender, the district court, in determining whether Amendment 706 reduced
Monroe’s guideline range, was required to consider not only whether the
amendment reduced his drug quantity base offense level, but also whether
§ 4B1.1(b) produced a higher offense level than his amended drug quantity offense
level. Amendment 706 reduced Monroe’s drug quantity base offense level from 34
to 32, but did not affect his career offender offense level, which remained at 34.
Therefore, Amendment 706 did not have the effect of reducing Monroe’s guideline
range. Accordingly, the district court did not err in denying Monroe’s § 3582(c)(2)
motion.
AFFIRMED.
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