[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11204 ELEVENTH CIRCUIT
JULY 1, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 98-00433-CR-T-24-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL BURNEY,
a.k.a. Jimmy,
a.k.a. Burney,
a.k.a. Bean,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 1, 2009)
Before MARCUS, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Darrell Burney, through counsel, appeals the district court’s denial of his
motion for a sentencing reduction, pursuant to 18 U.S.C. § 3582(c)(2). For the
reasons set forth below, we affirm.
I.
In 1999, a jury found Burney and other codefendants guilty of conspiracy to
possess with intent to distribute 50 grams or more of crack cocaine, in violation of
21 U.S.C. §§ 846 and 841(a)(1). In preparing a pre-sentence investigation report
(“PSI”), the probation officer conservatively estimated that Burney was responsible
for 22.5 kilograms of crack cocaine. As a result, the probation officer determined
that Burney had a base offense level of 38 under U.S.S.G. § 2D1.1 because he was
accountable for “1.5 kilograms or more” of crack cocaine.1 This became Burney’s
total adjusted offense level, as no enhancements or adjustments were applied. The
probation officer determined that Burney had a criminal history category of II,
which, when combined with his offense level of 38, gave Burney an applicable
guideline range of 262-327 months’ imprisonment.
Burney raised two objections at sentencing. First, he argued that he was
entitled to a minor-role reduction under U.S.S.G. § 3B1.2, but, notably, in
1
The probation officer used this metric because, at the time of sentencing – before the
promulgation of Amendment 706 – a defendant received a base offense level of 38 if he was held
accountable for 1.5 kilograms or more of crack cocaine. See U.S.S.G. § 2D1.1(c)(1) (1998).
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presenting this objection at sentencing, Burney did not reference the probation
officer’s drug-quantity calculation. The district court rejected Burney’s argument,
noting, inter alia, that Burney “distributed a substantial amount of cocaine.”
Second, Burney argued that he was entitled to a downward departure under
U.S.S.G. § 4A1.3 based on the over-representation of his criminal history. The
district court agreed and granted Burney a one-level downward departure to a
criminal history category of I, which gave Burney an applicable guideline range of
235-293 months’ imprisonment. The court asked defense counsel if there were any
additional objections, and counsel responded that there were not. The district court
thereafter adopted the factual findings and guideline calculations in the PSI and
sentenced Burney to 235 months’ imprisonment. We affirmed Burney’s
conviction and sentence on direct appeal.
In October 2008, and relying on Amendment 706 to the Guidelines, Burney
filed a pro se motion for a sentencing reduction, pursuant to 18 U.S.C.
§ 3582(c)(2). The district court appointed Burney counsel, who then submitted a
memorandum in support of Burney’s motion. Counsel, inter alia, implicitly
acknowledged that Burney might be ineligible for a sentencing reduction if he had
been held accountable for 4.5 kilograms or more of crack cocaine, but he argued
that Burney should be held accountable only for 1.5 kilograms or more because the
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district court never made a specific drug-quantity finding at sentencing.
The district court denied Burney’s motion, concluding that, because he was
held accountable for 22.5 kilograms of crack cocaine, his offense level remained
38 and, therefore, Amendment 706 would not reduce his applicable guideline
range. This appeal followed.
II.
“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). Under § 3582(c)(2), a district court may modify a
defendant’s term of imprisonment where he “has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by
the Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2). Any such reduction
must also be consistent with the Commission’s applicable policy statements, which
similarly provide that a sentencing reduction is not permitted where 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).
III.
The district court correctly concluded that Burney was ineligible for a
sentencing reduction because he was held accountable for 4.5 kilograms or more of
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crack cocaine and, therefore, Amendment 706 would not affect his offense level of
38 or his applicable guideline range. See United States v. Jones, 548 F.3d 1366,
1369 (11th Cir. 2008) (holding that a defendant is ineligible for a sentencing
reduction under Amendment 706 where he is held accountable for 4.5 kilograms or
more of crack cocaine), cert. denied, 129 S.Ct. 1657 (2009); see also U.S.S.G.
§ 2D1.1(c)(1) (2008) (providing for a base offense level of 38 where the defendant
is held accountable for 4.5 kilograms or more of crack cocaine).
Though Burney is correct that the sentencing court did not expressly make
any drug-quantity findings, it did adopt the factual findings of the PSI, which
included the finding that Burney was accountable for 22.5 kilograms of crack
cocaine. In addition, Burney did not object to this factual finding at sentencing,
thereby admitting it for purposes of sentencing. See United States v. Wade, 458
F.3d 1273, 1277 (11th Cir. 2006) (“It is the law of this circuit that a failure to
object to allegations of fact in a PSI admits those facts for sentencing purposes.”).
In this respect, Burney counters that he did object to the probation officer’s
drug-quantity calculation by requesting a minor-role reduction. However, the most
that can be said is that, in rejecting Burney’s request for a minor-role reduction, the
district court noted that Burney “distributed a substantial amount of cocaine;”
Burney himself never referred, let alone objected, to the probation officer’s
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drug-quantity calculation.
Accordingly, we affirm the district court’s denial of Burney’s motion for a
sentencing reduction.2
AFFIRMED.
2
Burney’s remaining arguments on appeal are entirely without merit.
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