United States v. Hopkins

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-8157

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

KEITH L. HOPKINS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:95-cr-00073-JRS-3)

Submitted: March 23, 2009 Decided: April 23, 2009

Before MOTZ, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Keith L. Hopkins, Appellant Pro Se. Gurney Wingate Grant, II,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Keith L. Hopkins appeals the district court’s order

denying his motion for reduction of sentence, 18 U.S.C.

§ 3582(c)(2) (2006). The district court concluded that Hopkins

was not entitled to the benefit of Amendment 706 of the

sentencing guidelines because he was sentenced as a career

offender. Our review of the record reveals that, although

Hopkins qualified as a career offender, U.S. Sentencing

Guidelines Manual § 4B1.1 (1995), he was not sentenced based on

this status. Nonetheless, application of Amendment 706 would

not have the effect of lowering Hopkins’ guideline range. We

accordingly affirm. See United States v. Smith, 395 F.3d 516,

519 (4th Cir. 2005) (holding we “may affirm on any grounds

apparent from the record”).

A district court may modify the term of imprisonment

“of a defendant who has been sentenced . . . based on a

sentencing range that has subsequently been lowered,” if the

amendment is listed in the guidelines as retroactively

applicable. 18 U.S.C. § 3582(c)(2); see also U.S. Sentencing

Guidelines Manual § 1B1.10, p.s. (2008). However, “[a]

reduction in the defendant’s term of imprisonment is not . . .

authorized under . . . § 3582(c)(2) if . . . [the amendment]

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does not have the effect of lowering the defendant’s applicable

guideline range.” USSG § 1B1.10(a)(2)(B), p.s. Amendment 706,

the 2007 amendment to USSG § 2D1.1 that lowered the base offense

levels for most offenses involving crack cocaine, applies

retroactively. USSG § 1B1.10(c), p.s.

Hopkins was held responsible for ninety-eight grams of

cocaine base and 447 grams of heroin, for a marijuana

equivalency of 2407 kilograms. This resulted in a base offense

level of 32 (at least 1000 kg but less than 3000 kg marijuana).

See USSG § 2D1.1(c)(4). Two levels were added for each of the

following: Hopkins’ role in the offense; his possession of a

firearm; and his obstruction of justice. His total offense

level was 38. As a career offender, Hopkins was in criminal

history category VI, see USSG § 4B1.1; however, with seventeen

criminal history points, Hopkins qualified for category VI

independently of his career offender status. His advisory

guideline range was 360 months-life in prison.

Although Hopkins qualified as a career offender, the

above calculations, rather than the table at USSG § 4B1.1, were

used to determine his guideline range because his total offense

level from the table would have been 37 — less than the offense

level above. See USSG § 4B1.1 (“If the offense level for a

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career criminal from the table * below is greater than the offense

level otherwise applicable, the offense level from the table

below shall apply.”).

Application of Amendment 706 would not change Hopkins’

advisory guideline range of 360 months-life. Hopkins was

responsible for a marijuana equivalency of 2407 kilograms, which

continues to correspond to base offense level 32. See USSG

§ 2D1.1(c)(4) (2008). Under Amendment 706, this is reduced to

base offense level 30. See USSG § 2D1.1, comment.

(n.10(D) (i-ii)) (reduce base offense level by two levels if

offense involves cocaine base and another controlled substance).

With the three two-level adjustments described above, Hopkins’

total offense level is 36. Under USSG § 4B1.1(b), the offense

level set forth in that guideline’s table must be used.

Therefore, under Amendment 706, Hopkins’ total offense level is

37, his criminal history category is VI, and his advisory

guideline range remains 360 months-life in prison.

Because Amendment 706 “does not have the effect of

lowering the defendant’s applicable guideline range”, USSG

§ 1B1.10(a)(2)(B), p.s., Hopkins is ineligible for a sentence

reduction under § 3582(c)(2). We accordingly affirm. We

*
According to the table, because Hopkins’ offense statutory
maximum was life in prison, see 21 U.S.C. § 841(b)(1)(A), his
offense level as a career offender was 37. See USSG § 4B1.1.

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dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED