United States v. Dante Brown

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 12, 2010
No. 09-14187 JOHN LEY
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 93-06179-CR-UU

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANTE BROWN,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(July 12, 2010)

Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:

Dante Brown, a federal prisoner convicted of a crack cocaine offense,

appeals the denial of his 18 U.S.C. § 3582(c)(2) motion for a reduced sentence

based on Amendment 706 to the Sentencing Guidelines.1 No reversible error has

been shown; we affirm.

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 later has been lowered by the Sentencing Commission. 18 U.S.C. §

3582(c)(2). But a reduction of a term of imprisonment is unauthorized under

section 3582(c)(2) if 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).

Amendment 706 retroactively 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). U.S.S.G. App. C, Amend. 713 (Supp. 1 May 2008). The highest base

offense level of 38 now applies to a defendant responsible for at least 4.5

kilograms of crack cocaine; earlier, a base offense level of 38 applied to 1.5

kilograms or more of crack cocaine. See U.S.S.G. § 2D1.1(c)(1); United States v.

1
We review for an abuse of discretion a district court’s decision not to grant a sentence
reduction under section 3582(c)(2). United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir.
2005). And we review de novo the court’s legal conclusions about the scope of its authority in a
section 3582(c)(2) proceeding. United States v. James, 548 F.3d 983, 984 (11th Cir. 2008).

2
Jones, 548 F.3d 1366, 1369 (11th Cir. 2008), cert. denied, 129 S.Ct. 1657 (2009)

(explaining that “the guidelines now provide a base offense level of 36 for

defendants who are responsible for at least 1.5 kilograms but less than 4.5

kilograms of crack cocaine”).

At his original sentencing, Brown received a base offense level of 38 and,

with an upward adjustment for his role in the offense, had a total offense level of

41. Brown’s criminal history category was VI, and his guidelines range was 360

months to life imprisonment. The court sentenced Brown to 360 months. The

district court denied Brown’s section 3582(c)(2) motion, concluding that his base

offense level of 38 remained unchanged after Amendment 706 because his offense

involved over 75 kilograms of crack cocaine.

On appeal, Brown argues that the district court erred in concluding that he

was responsible for 75 kilograms of crack cocaine. At his original sentencing, the

court determined only that he was responsible for at least the 1.5 kilograms of

crack cocaine necessary to qualify him for a base offense level of 38. The

government concedes that the district court erred in its recent drug-quantity

determination.

Even assuming that the district court relied on an incorrect factual finding,

its ultimate conclusion -- that Amendment 706 did not lower Brown’s guidelines

3
range -- was correct. Amendment 706 would have reduced Brown’s base offense

level from 38 to 36. But, with his upward adjustment for his role in the offense

and his criminal history category of VI (both of which remained unchanged),

Brown’s guidelines range still was 360 months to life imprisonment. See U.S.S.G.,

Ch. 5, Pt. A, Sentencing Table; United States v. Bravo, 203 F.3d 778, 781 (11th

Cir. 2000) (explaining that, in a section 3582(c)(2) proceeding, “all original

sentencing determinations remain unchanged with the sole exception of the

guideline range that has been amended since the original sentencing”). So, because

Brown received the lowest possible guidelines sentence, his substantial rights were

unaffected; and the district court’s error was harmless. See Fed.R.Crim.P. 52(a)

(“[a]ny error . . . that does not affect substantial rights shall be disregarded”);

United States v. Newsome, 998 F.2d 1571, 1579 (11th Cir. 1993) (concluding that

a remand was unnecessary where defendants’ base offense levels were unaffected

by the court’s error and they received the lowest possible terms of imprisonment).

Because Amendment 706 did not have the effect of reducing Brown’s

guidelines range, Brown was unentitled to a sentence reduction. We affirm the

district court’s denial of his section 3582(c)(2) motion.

AFFIRMED.