[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 5, 2009
No. 08-15393 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-00001-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRELL GAULDEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 5, 2009)
Before EDMONDSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Derrell Gaulden, a pro se federal prisoner convicted of crack cocaine and
firearm offenses, appeals the district court’s denial of his motion for a sentence
reduction, 18 U.S.C. § 3582(c)(2). No reversible error has been shown; we affirm.
Gaulden’s original total offense level of 38 derived from a base offense level
of 36 for possession of at least 500 grams, but less than 1.5 kilograms of crack
cocaine, and a two-level enhancement for possession of a dangerous weapon. With
a criminal history category of II, Gaulden’s guidelines range was 262 to 327
months. The district court sentenced him to 327 months in addition to a
consecutive 60 months for carrying a firearm during and in relation to a drug
trafficking crime, 18 U.S.C. § 924(c).1
In his section 3582(c)(2) motion, Gaulden sought a sentence reduction
pursuant to both Amendments 599 and 706. The district court calculated
Gaulden’s new offense level at 36 with a resulting guidelines range of 210 to 262
months. After considering the 18 U.S.C. § 3553(a) factors relied on at Gaulden’s
original sentencing -- the large quantity of crack cocaine involved in his offenses
and the danger he presented to the community evidenced by his repeated and
threatened acts of violence -- the court chose not to lower Gaulden’s sentence.
On appeal, Gaulden argues he qualified for a reduction under Amendment
1
Gaulden also was convicted of a drive-by shooting offense and possession with intent to
distribute cocaine, for which his sentences ran concurrently to his crack cocaine sentences.
2
599 and that the district court erred by failing to consider the applicability of this
amendment. He also argues that the district court abused its discretion by not
lowering his sentence pursuant to Amendment 706.2 We review de novo the district
court’s legal conclusions about the scope of its authority under the Sentencing
Guidelines in a section 3582(c)(2) proceeding. United States v. James, 548 F.3d
983, 984 (11th Cir. 2008). If a sentence reduction is authorized, we review the
district court’s decision to grant or deny a reduction for an abuse of discretion. Id.
at 984 n.1.
Under section 3582(c)(2), a district court has discretion to reduce a term of
imprisonment of an already incarcerated defendant if that defendant “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). Amendment 599 retroactively prohibited certain firearm
enhancements under U.S.S.G. § 2K2.4. See U.S.S.G. § App. C, Amend. 599; see
also id. at Reason for Amend. (“[t]he amendment directs that no guideline weapon
enhancement should be applied when determining the sentence for the crime of
violence or drug trafficking offense underlying the [section] 924(c) conviction”).
2
Gaulden also argues that the district court violated his Sixth Amendment rights by not
appointing counsel for him in his section 3582(c)(2) proceedings. But a defendant does not have
a constitutional right to appointment of counsel to represent him on a motion to reduce sentence.
See United States v. Webb, 565 F.3d 789, 795 (11th Cir. 2009).
3
And Amendment 706 -- which became retroactive on 3 March 2008, U.S.S.G.
App. C, Amend. 713 (Supp. 1 May 2008) -- reduced by two the base offense levels
in crack cocaine sentences calculated pursuant to the drug quantity table, U.S.S.G.
§ 2D1.1(c).
A “district court must make two distinct determinations before deciding
whether to reduce a defendant’s sentence under” section 3582(c)(2). United States
v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998). First, the court must determine the
sentence it would have imposed, given the defendant’s amended guidelines range
and holding constant all other guidelines determinations made at the original
sentencing hearing. Id. Then, the court must consider the factors in section
3553(a) and determine, in its discretion, whether to reduce the defendant’s
sentence. Id.
Here, the district court made no mention of Amendment 599 in its order
denying Gaulden’s motion; but a review of the record makes clear that this
amendment did not apply to him. Gaulden received a two-level firearm
enhancement for several weapons discovered near his crack cocaine laboratory and
for the firearm involved in the drive-by shooting offense: these firearms were
connected to his crack cocaine offenses. See U.S.S.G. § 2D1.1(b)(1). But he did
not receive an enhancement for his conviction for possession with intent to
4
distribute cocaine, which was the underlying offense for his section 924(c)
conviction. See United States v. Armstrong, 347 F.3d 905, 908 (11th Cir. 2003) (if
the defendant’s underlying sentence is not enhanced based on the involvement of a
weapon, Amendment 599 does not apply). So, because Amendment 599 did not
apply, the district court’s failure to address it was harmless error; and Gaulden’s
substantial rights were not affected. See United States v. Mathenia, 409 F.3d 1289,
1292 (11th Cir. 2005) (we will not remand based on a harmless error); United
States v. Hernandez, 160 F.3d 661, 670 (11th Cir. 1998) (“[t]o find harmless error,
we must determine that the error did not affect the substantial rights of the
part[y]”).
And we conclude that the district court abused no discretion in refusing to
reduce Gaulden’s sentence under Amendment 706. The court calculated correctly
Gaulden’s amended guidelines range by reducing his base offense level to the
corresponding drug quantity and keeping constant other sentencing calculations.
See U.S.S.G. § 2D1.1(c)(3). And the court considered certain section 3553(a)
factors -- specifically, the large quantity of drugs involved and the danger Gaulden
posed to the community based on his previous violence -- in concluding that
Gaulden was unentitled to a sentence reduction. The district court was permitted to
consider factors previously considered in imposing Gaulden’s original sentence.
5
See Vautier, 144 F.3d at 762 (upholding a district court’s decision to deny a
section 3582(c)(2) motion for the same reasons it relied on to establish the original
sentence).
The district court complied with the required two-step resentencing
procedure and sufficiently explained why the court refused to reduce Gaulden’s
sentence.3
AFFIRMED.
3
Gaulden’s challenges to his criminal history category and the drug quantity attributable
to him are beyond scope of a section 3582(c)(2) proceeding. See United States v. Bravo, 203
F.3d 778, 781 (11th Cir. 2000) (explaining that a sentencing reduction under section 3582(c)(2)
is not a de novo resentencing and “all original sentencing determinations remain unchanged with
the sole exception of the guideline range that has been amended since the original sentencing”).
6