United States v. Jerry Lee Brown

Case: 12-12399 Date Filed: 12/26/2012 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 12-12399
Non-Argument Calendar
________________________

D.C. Docket No. 5:93-cr-00050-CAR-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

JERRY LEE BROWN,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
________________________

(December 26, 2012)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
Case: 12-12399 Date Filed: 12/26/2012 Page: 2 of 6

Jerry Brown appeals from the district court’s denial of his motion to reduce his

sentence under 18 U.S.C. § 3582(c)(2). In the original proceeding, Brown pled guilty

pursuant to a written plea agreement to possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Using prior relevant

conduct, the presentence investigation report (“PSI”) attributed to Brown 2.5 pounds

of cocaine and 24 pounds of methamphetamine, calculated his base offense level

using U.S.S.G. § 2D1.1, and enhanced his range under U.S.S.G. § 3B1.1(a) for

Brown’s leadership role. The district court declined to consider all the relevant

conduct contained in the PSI, determined that Brown’s total beginning offense level

was 30, and then departed upward nine levels under U.S.S.G. § 5K2.0 based on a

murder-for-hire scheme involving four potential victims. The court sentenced Brown

to life imprisonment. In 2010, Brown filed a pro se § 3582(c)(2) pursuant to the

Sentencing Guidelines’ Amendment 591, which the district court denied.

On appeal, Brown argues: (1) that under Amendment 591, his sentence is over

the statutory maximum sentence of 40 years’ imprisonment found in § 841(b)(1)(B)

that he alleges applies to his offense; (2) that his trial counsel was ineffective because

counsel indicated that his sentence would be limited to 92 to 115 months, and counsel

did not understand the plea agreement; and (3) in his reply brief, that the government

misrepresented the facts to us, and, in light of DePierre v. United States, 564 U.S. __,

2
Case: 12-12399 Date Filed: 12/26/2012 Page: 3 of 6

131 S.Ct. 2225 (2011), the identity and quantity of drugs are elements of the offense

that must be proved beyond a reasonable doubt. After careful review, we affirm.

We review a district court’s decision whether to reduce a defendant’s sentence

pursuant to 18 U.S.C. § 3582(c)(2), based on a subsequent change to the Sentencing

Guidelines, for abuse of discretion. United States v. Brown, 332 F.3d 1341, 1343

(11th Cir. 2003).

When a defendant is sentenced based on a sentencing range that is

subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o),

the district court has discretion under 18 U.S.C. § 3582(c)(2) to reduce the

defendant’s term of imprisonment. United States v. Bravo, 203 F.3d 778, 780 (11th

Cir. 2000). However, § 3582(c)(2) does not grant the district court jurisdiction to

reconsider all original sentencing determinations. Id. at 781. Moreover, the district

court may not modify an imposed term of imprisonment upon a § 3582(c)(2) motion

unless the defendant’s sentencing range was subsequently lowered by an amendment

to the Sentencing Guidelines. Id. at 780-81.

Amendment 591 became effective on November 1, 2000, and is retroactively

applicable. U.S.S.G. § 1B1.10(c); U.S.S.G. App. C, Amend. 591. The amendment

added language to U.S.S.G. § 1B1.1(a) instructing the district court to “[d]etermine,

pursuant to § 1B1.2 (Applicable Guidelines), the offense guideline section from

3
Case: 12-12399 Date Filed: 12/26/2012 Page: 4 of 6

Chapter Two (Offense Conduct) applicable to the offense of conviction.” U.S.S.G.

App. C, Amend. 591. Furthermore, Amendment 591 changed U.S.S.G. § 1B1.2(a),

instructing the sentencing court to “[r]efer to the Statutory Index (Appendix A) to

determine the Chapter Two offense guideline, referenced in the Statutory Index for

the offense of conviction. . . . For statutory provisions not listed in the Statutory

Index, use the most analogous guideline.” Id.

In United States v. Moreno, we explained that Amendment 591

was designed to clarify whether enhanced penalties provided by
U.S.S.G. § 2D1.2 (relating to drug offenses near protected locations or
involving underage or pregnant individuals) apply only where the
offense of conviction is referenced to that guideline, or whether such
enhanced penalties can be used whenever a defendant’s relevant,
uncharged conduct includes drug sales in a protected location or drug
sales involving a protected individual. Specifically, in order for the
enhanced penalties in § 2D1.2 to apply, the defendant must be convicted
of an offense referenced to § 2D1.2, rather than simply have engaged in
conduct described by that guideline.

421 F.3d 1217, 1219 (11th Cir. 2005) (quotations and citation omitted). In

promulgating Amendment 591, the Sentencing Commission was aware that other

guideline sections faced issues similar to § 2D1.2. See U.S.S.G. App. C, Amend. 591

(“Reason for Amendment”). The Statutory Index of the Sentencing Guidelines

Manual indicates that § 2D1.1 is the applicable guideline section for § 841(a)

offenses. U.S.S.G. App. A.

4
Case: 12-12399 Date Filed: 12/26/2012 Page: 5 of 6

Amendment 591, however, only applies to the selection of the relevant offense

guideline, not the selection of a base offense level within the applicable offense

guideline. Moreno, 421 F.3d at 1219-20. Furthermore, Amendment 591 does not

constrain the use of judicially found facts to select a base offense level within the

relevant guideline. Id.

Here, the district court did not abuse its discretion in denying Brown’s §

3582(c)(2) motion. Brown’s base offense level was correctly determined by § 2D1.1,

which is the applicable guideline section for § 841(a) offenses. U.S.S.G. App. A. He

concurs that § 2D1.1 is the correct guideline, but asserts that his offense level should

have been 26. Although it is unclear whether the district court at sentencing assigned

a base offense level of 26 and then added 4 levels for Brown’s leadership role or

assigned a base offense level of 30, Amendment 591 neither affected the selection of

a base offense level within § 2D1.1, nor amended U.S.S.G. § 3B1.1. See Moreno,

421 F.3d at 1220; U.S.S.G. App. C, Amend. 591. The amendment also did not amend

departures under § 5K2.0. U.S.S.G. App. C, Amend. 591. Thus, § 3582(c) is

inapplicable to Brown’s arguments.

As for Brown’s claims regarding his sentence exceeding the statutory

maximum and ineffective assistance of counsel, these claims are not based on an

amendment to the Guidelines made retroactive by the Sentencing Commission.

5
Case: 12-12399 Date Filed: 12/26/2012 Page: 6 of 6

Therefore, the district court could not lower Brown’s sentence under § 3582(c)(2)

pursuant to these arguments. See Bravo, 203 F.3d at 780-81. Accordingly, we

affirm.1

AFFIRMED.

1
In addition, we do not consider Brown’s argument regarding DePierre because he raises
it for the first time in his reply brief. See United States v. Magluta, 418 F.3d 1166, 1185 (11th
Cir. 2005) (“[A]n appellant may not raise an issue for the first time in a reply brief.”). In any
event, Brown’s claim that the government misrepresented the facts and committed fraud does not
implicate a retroactive amendment to the Sentencing Guidelines, so that argument cannot be a
basis to lower his sentence under § 3582(c)(2). Bravo, 203 F.3d at 780-81.