United States v. Byers

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-7726

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHELLE DWAYNE BYERS, a/k/a Sld Dft 3:97-184-5, a/k/a
Michael Dwayne Byers, a/k/a Duke Byers,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:97-cr-00184-FDW-5)

Submitted: August 18, 2009 Decided: September 8, 2009

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Steven George Slawinski, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Michelle Dwayne Byers appeals the district court’s

denial of his 18 U.S.C. § 3582(c)(2) (2006) motion for a

reduction in sentence. In his motion, Byers sought to receive

the benefit of Amendment 706 to the U.S. Sentencing Guidelines

Manual (“USSG”). The Government has filed a motion to dismiss,

contending that Byers’s May 13, 2009 release from prison

effectively mooted this appeal. Because Byers is ineligible for

relief under Amendment 706, we affirm the judgment of the

district court without reaching the mootness issue.

Byers pled guilty, pursuant to a plea agreement, to

conspiracy to possess with intent to distribute and distribute

cocaine and cocaine base within 1,000 feet of a playground, in

violation of 21 U.S.C. §§ 841(a)(1), 846, 860 (2006). Prior to

sentencing, the probation officer prepared a presentence

investigation report (“PSR”), calculating Byers’s base offense

level at thirty-seven, which became a total offense level of

thirty-four after adjustment for acceptance of responsibility

under USSG § 3E1.1 (1997). When combined with Byers’s criminal

history category of VI, this yielded a guideline range of 262 to

327 months’ imprisonment. Additionally, the probation officer

determined that Byers was a career offender under USSG

§ 4B1.1(a). The base offense level under § 4B1.1(A) was also

thirty-seven, for a total offense level of thirty-four after

2
adjustment for acceptance of responsibility. Thus, because

Byers’s offense level under USSG § 4B1.1 was not greater than

the offense level otherwise applicable, Byers’s career offender

designation had no immediate effect on his sentence. USSG

§ 4B1.1. At sentencing, the district judge departed downward

upon the Government’s USSG § 5K1.1 motion, and sentenced Byers

to 144 months’ imprisonment on September 21, 1998.

Almost ten years later, Byers filed a § 3582(c)(2)

motion for reduction of sentence, seeking to receive the benefit

of Amendment 706 to the guidelines. Determining that Byers’s

career offender status rendered Byers ineligible for application

of Amendment 706, the district court denied Byers’s § 3582

motion. Byers filed a timely appeal.

We review for abuse of discretion a district court’s

decision denying a sentence reduction under § 3582(c)(2). See

United States v. Goines, 357 F.3d 469, 478 (4th Cir. 2004). The

district court may reduce the term of imprisonment of a

defendant who has been sentenced based on a guideline range that

has subsequently been lowered by an amendment to the guidelines,

so long as the amendment has been made retroactively applicable.

See USSG § 1B1.10(a)(1), p.s. (2008). However, “[a] reduction

in the defendant’s term of imprisonment is not consistent with

this policy statement and therefore is not authorized under

. . . § 3582(c)(2) if . . . an amendment . . . does not have the

3
effect of lowering the defendant’s applicable guideline range.”

USSG § 1B1.10(a)(2)(B).

In denying Byers’s motion, the district court

concluded that Byers’s designation as a career offender rendered

him ineligible for relief under Amendment 706. On appeal, Byers

contends that because his offense levels and criminal history

categories were the same under USSG §§ 2D1.1(c) and 4A1.1, as

they were pursuant to USSG § 4B1.1’s career offender

designation, Byers’s sentencing range, before the downward

departure under USSG § 5K1.1, p.s., was based on his crack

cocaine offense level, not his career offender offense level.

Therefore, Byers asserts, substituting the amended version of

USSG § 2D1.1 for the version applied during Byers’s sentencing

while leaving all other guideline decisions unaffected would

reduce Byers’s total offense level from thirty-four to thirty-

two.

Byers is correct that, had Amendment 706 been in

effect at the time of his sentencing, the probation officer

would have calculated his base offense level at thirty-five, see

USSG §§ 2D1.1(c)(3), 2D1.2(a)(2) (2008), which would have

resulted in a total offense level of thirty-two after adjustment

for acceptance of responsibility. When combined with Byers’s

criminal history category of VI, this would have yielded a

guidelines range of 210 to 262 months’ imprisonment. USSG ch.

4
5, pt. A (sentencing table). This, however, does not make

Byers’s case.

Byers overlooks the fact that, as a result of this

lessened crack cocaine offense level had Amendment 706 been

applicable at his sentencing, he would have been sentenced under

the career offender base offense level dictated by USSG § 4B1.1,

as his career offender offense level of thirty-seven would have

been more than his otherwise applicable offense level of thirty-

five. USSG § 4B1.1(b). Accordingly, even with the application

of Amendment 706, Byers’s base offense level would have remained

thirty-seven, which, after a three-level adjustment for

acceptance of responsibility, would have resulted in a total

offense level of thirty-four, and a guideline range of 262 to

327 months’ imprisonment, the same as the range originally

calculated by the probation officer. Therefore, because

Amendment 706 “d[id] not have the effect of lowering the

defendant’s applicable guideline range,” the district court did

not err in determining that Byers was ineligible to receive the

benefit of Amendment 706. USSG § 1B1.10(a)(2), p.s.

Accordingly, we deny the Government’s motion to

dismiss, deny Byers’s motion for appointment of counsel, and

affirm the judgment of the district court. We dispense with

oral argument because the facts and legal contentions are

5
adequately expressed in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

6