[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 10, 2009
No. 08-15297 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00088-CR-ORL-31-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARVEY R. JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 10, 2009)
Before BLACK, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Harvey R. Johnson, a pro se federal prisoner, appeals the district court's
denial of his motion seeking modification of his term of imprisonment, pursuant to
18 U.S.C. § 3582(c)(2). On appeal, Johnson argues that, since Amendment 599
was designated for retroactive application, his sentence should be recalculated
without the “2 point increase for discharging a firearm during flight” because that
increase to his sentence computation was illegal.
We review a district court’s decision of whether to reduce a sentence
pursuant to § 3582(c)(2) for an abuse of discretion. United States v. Vautier, 144
F.3d 756, 759 n. 3 (11th Cir. 1998). According to § 3582(c)(2), a district court is
permitted to modify a defendant’s sentence if his sentencing range subsequently
has been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o).
Amendment 599 became effective November 1, 2000, and amended the
commentary to U.S.S.G. 2K2.4. U.S.S.G. App. C, Amendment 599. Section §
2K2.4 sets forth a base offense level for individuals who have violated, inter alia,
18 U.S.C. 924(c). Amendment 599 provides that, “[i]f a sentence under [ 2K2.4] is
imposed in conjunction with a sentence for an underlying offense, do not apply any
specific offense characteristics for possession, brandishing, use, or discharge of an
explosive or firearm when determining the sentence for the underlying offense.”
U.S.S.G. App. C., Amendment 599. In this instance, Johnson’s guideline range
was adjusted upward per U.S.S.G. § 3C1.2, for reckless endangerment during flight.
2
The district court did not abuse its discretion in denying Johnson’s motion to
modify, because his motion was procedurally improper. Section 3582(c)(2) only
permits a motion to modify when a sentencing range has “subsequently been
lowered” by an amendment by the Sentencing Commission. See 18 U.S.C.
3582(c)(2). Amendment 599 became effective November 1, 2000, prior to
Johnson’s sentencing. See U.S.S.G. App. C, Amendment 599. Furthermore, the
presentence investigation report applied the amendment by recommending no
Chapter Two specific offense characteristic enhancements on the basis that
Johnson discharged a firearm during the offense. Accordingly, we affirm.
AFFIRMED.1
1
Johnson’s request for oral argument is denied.
3