[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 5, 2009
No. 08-13741 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00457-CR-JOF-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARION PITTS,
a.k.a. Holy,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 5, 2009)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Marion Pitts, proceeding pro se, appeals the district court’s denial of his
motion for a reduced sentence, which was filed pursuant to 18 U.S.C. § 3582(c)(2),
and based on Amendment 706 to the Sentencing Guidelines, which reduced the
base offense levels applicable to crack cocaine offenses. On appeal, Pitts argues
that the district court erred in denying his § 3582(c)(2) motion based on his
career-offender status because his offense level, calculated under U.S.S.G.
§ 2D1.1, actually was utilized to sentence him, because it was greater than his
offense level under U.S.S.G. § 4B1.1, the career-offender provision. He further
contends that, because the district court departed downward for his substantial
assistance under U.S.S.G. § 5K1.1 and Fed.R.Crim.P. 35(b), his offense level, after
applying Amendment 706, would be reduced to 29, and his sentencing range
would be lowered to 151 to 188 months’ imprisonment.
In a § 3582(c)(2) proceeding,“we review de novo the district court’s legal
conclusions regarding the scope of its authority under the Sentencing Guidelines.”
United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). “We review de novo
questions of statutory interpretation.” United States v. Maupin, 520 F.3d 1304,
1306 (11th Cir. 2008). A district court may modify a term of imprisonment in the
case of a defendant who was 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 be consistent with
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the Commission’s applicable policy statements, which similarly provide, inter alia,
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).
The district court in this case erroneously concluded that Pitts was not
eligible for a sentencing reduction because he was a career offender. Although
Pitts was a career offender, his applicable guideline range was determined by his
base offense level in § 2D1.1, because his otherwise applicable offense level of 39
was greater than the offense level prescribed by § 4B1.1. Nonetheless, the district
court ultimately reached the correct conclusion that Pitts was ineligible for a
sentencing reduction because although Amendment 706 would reduce his total
offense level from 39 to 37, it would not affect his sentencing range. An offense
level of 37, coupled with a criminal history category of VI, would give Pitts an
amended guideline range of 360 months to life imprisonment, the same applicable
guideline range upon which his original sentence was based. The downward
departures that Pitts received, under § 5K1.1 and Rule 35(b), do not affect this
analysis. See United States v. Vautier, 144 F.3d 756, 762 (11th Cir. 1998) (stating
that “the benefit accruing from a lower sentence range under an amended guideline
is independent of any prior substantial-assistance downward departure . . . .”).
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Accordingly, we affirm.
AFFIRMED.
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