United States v. Carl Dennis Johnson

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14588 ELEVENTH CIRCUIT
JUNE 15, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 05-00114-CR-ORL-31-KRS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARL DENNIS JOHNSON,

Defendant-Appellant.

________________________

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

(June 15, 2009)

Before BARKETT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
 Carl Dennis Johnson, a federal prisoner convicted of a crack cocaine

offense, appeals the district court’s denial of his counseled 18 U.S.C. § 3582(c)(2)

motion for reduction of sentence based on Amendment 706 to U.S.S.G. § 2D1.1,

which lowered the base offense levels applicable to crack cocaine offenses. On

appeal, Johnson argues, through counsel, that he is entitled to a reduction under

Amendment 706 because he was sentenced pursuant to § 2D1.1, not pursuant to

the career-offender provision of U.S.S.G. § 4B1.1, given that the district court at

sentencing noted that the guideline range under § 4B1.1 was grossly

disproportionate to the seriousness of the offense and that the crack-to-cocaine

disparity was unwarranted. Johnson also argues that he falls within an exception

created in United States v. Moore, 541 F.3d 1323, 1327 (11th Cir. 2008), cert.

denied, McFadden v. United States, 129 S.Ct. 965 (2009), and cert. denied, (U.S.

Mar. 9, 2009) (No. 08-8554), wherein a defendant could receive a sentence

reduction if he was not sentenced as a career offender, even if he qualified as one.

“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). A district court may modify a term of imprisonment in

the case of a defendant who was sentenced based on a sentencing range that

subsequently has been lowered by the Sentencing Commission. 18 U.S.C.

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§ 3582(c)(2). Any reduction, however, must be “consistent with applicable policy

statements issued by the Sentencing Commission.” Id. A reduction of a term of

imprisonment is not “consistent with applicable policy statements issued by the

Sentencing Commission”—and is, therefore, not authorized under § 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).

A defendant whose original guideline sentencing range was based on the

career-offender guideline section of § 4B1.1 is precluded from receiving a sentence

reduction because Amendment 706 does not have the effect of lowering the

applicable guideline range. See Moore, 541 F.3d at 1327; see also U.S.S.G.

§ 1B1.10, comment. (n.1(A)) (stating that a reduction under § 3582(c)(2) is not

authorized where “the amendment . . . is applicable to the defendant but the

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

guideline range because of the operation of another guideline or statutory

provision”). Where the base offense levels under § 2D1.1 “play[] no role” in the

calculation of the guideline range, the defendant is not entitled to § 3582 relief

under Amendment 706. Moore, 541 F.3d at 1327.

Upon review of the record and the parties’ briefs, we discern no reversible

error. Johnson was determined to be a career offender, and the district court

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sentenced him as such. At sentencing, the court never stated that the PSI’s

career-offender determination was incorrect or overrepresented Johnson’s criminal

history. Rather, after explicitly discussing the § 3553(a) factors and the

crack-to-cocaine disparity, the district court used its discretion to vary downward

from the advisory career-offender guideline range. The crack-cocaine base offense

level of § 2D1.1 played no role in the calculation of Johnson’s guideline range, and

thus Amendment 706 did not lower that range. Accordingly, Johnson is not

entitled to a sentence reduction pursuant to § 3582. Id.

AFFIRMED.

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