United States v. Thomas Dewayne White

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 01-11773 September 19, 2002
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 92-04034-CR-WS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS DWAYNE WHITE,

Defendant-Appellant.

________________________

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

(September 19, 2002)

Before BIRCH and BLACK, Circuit Judges, and PROPST*, District Judge.

PER CURIAM:

*
Honorable Robert B. Propst, U.S. District Judge for the Northern District
of Alabama, sitting by designation.
Appellant Thomas Dwayne White, a federal prisoner, appeals the district

court’s denial of his motion, pursuant to 18 U.S.C. § 3482(c)(2), to apply Amendment

599 of the United States Sentencing Guidelines to reduce his sentence. Appellant was

originally sentenced to 200 months’ imprisonment for armed assault and attempted

robbery of a United States Postal Service worker, in violation of 18 U.S.C. § 2114,

and 60 months’ imprisonment for use of a firearm during a crime of violence, in

violation of 18 U.S.C. § 924(c), to run consecutively.

I. BACKGROUND

In October 1992, Appellant was convicted of two counts related to his

attempted robbery of a postal employee. At sentencing, the district court applied the

1992 version of the Sentencing Guidelines. Pursuant to U.S.S.G. § 2B3.1(a), the

district court assigned Appellant a base offense level of 20 for the underlying robbery

offense. The court then increased his offense level based on a variety of specific

offense characteristics, including a seven-level enhancement because a firearm was

discharged, pursuant to U.S.S.G. § 2B3.1(b)(2)(A). The court ultimately reached a

final adjusted offense level of 35, which combined with Appellant’s criminal history

category of III to yield a guideline range of 210 to 262 months’ imprisonment for

Count One. Ordinarily, application note two of § 2K2.4 would have prevented a

sentencing court from imposing a weapon enhancement in cases, like Appellant’s,

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where the defendant was also convicted of a § 924(c) offense. Appellant’s case,

however, fell within the proviso to application note two. That proviso responded to

the relatively rare cases in which the failure to impose a weapon enhancement resulted

in a lower aggregate sentence for both the underlying offense and the § 924(c) offense

than the sentence that would have been imposed for only the underlying offense with

the weapon enhancement. In such instances, the proviso directed the sentencing court

to impose the weapon enhancement but subtract 60 months from the guideline range

for the underlying offense to reflect the 60-month mandatory sentence for the § 924(c)

offense, thereby avoiding double-counting the same offense conduct for sentencing

purposes. See U.S.S.G. § 2K2.4, comment. (n.2) (Nov. 1992). Because the proviso’s

subtraction procedure applied to Appellant, his final adjusted guideline sentencing

range was 150 to 202 months’ imprisonment. The district court sentenced Appellant

to 200 months’ imprisonment for Count One, to be followed by a consecutive 60-

month prison term for Count Two.

Appellant filed a direct criminal appeal in this Court. In March 1994, this Court

affirmed his conviction and sentence in an unpublished opinion. United States v.

White, No. 93-2030 (11th Cir. March 22, 1994) (per curiam).

Amendment 489 to the Sentencing Guidelines, which became effective after

Appellant was sentenced, altered application note two of U.S.S.G. § 2K2.4. It

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abolished the subtraction procedure used in those cases, like Appellant’s, where

convictions for both an underlying offense and a § 924(c) offense produced a lower

aggregate sentence than for the underlying offense alone. In place of the subtraction

procedure, Amendment 489 forbids sentencing courts from imposing any weapons

enhancement and instead invites courts to impose an upward departure, thereby

avoiding any double-counting while still reaching an appropriate sentence. The

Sentencing Commission did not render Amendment 489 retroactive. U.S.S.G. §

1B1.10.

On November 1, 2000, Amendment 599 of the Sentencing Guidelines became

effective, further altering application note two of U.S.S.G. § 2K2.4. Amendment 599

sought to clarify the cases in which a defendant sentenced for a violation of 18 U.S.C.

§ 924(c) in conjunction with convictions for other underlying offenses may

nonetheless receive weapon enhancements under the guidelines for those underlying

offenses. The first sentence of the amended commentary, though slightly altered,

repeats the long-standing prohibition against duplicative punishment for the same

offense conduct: “If a sentence under this guideline is imposed in conjunction with

a sentence for an underlying offense, do not apply any specific offense characteristic

for possession, brandishing, use, or discharge of an explosive or firearm when

determining the sentence for the underlying offense.” U.S.S.G. § 2K2.4, comment.

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(n.2). Amendment 599 has retroactive effect pursuant to U.S.S.G. § 1B1.10, allowing

a defendant to rely on that amendment to seek relief under 18 U.S.C. § 3582(c)(2).

Appellant filed a pro se § 3582(c)(2) motion on January 17, 2001. He claimed

Amendment 599 directs that no weapon enhancement be applied when determining

a sentence for an underlying robbery offense when a defendant is also convicted of a

separate firearms charge under § 924(c). According to Appellant, Amendment 599

should remove his seven-level enhancement for discharge of a firearm and enable him

to argue to the sentencing court that no upward departure should be imposed under the

current commentary to U.S.S.G. § 2K2.4. The district court denied Appellant’s

motion, and this appeal followed. After this case was set for oral argument, the Court

appointed counsel to represent Appellant, and counsel for both parties filed

supplemental briefs.

II. DISCUSSION

In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), we review

de novo the district court’s legal conclusions regarding the scope of its authority under

the Sentencing Guidelines. United States v. Pelaez, 196 F.3d 1203, 1205 (11th Cir.

1999). We review a district court’s decision whether to reduce a sentence pursuant

to § 3582(c)(2) for abuse of discretion. United States v. Vautier, 144 F.3d 756, 759

n.3 (11th Cir. 1998).

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Appellant argues the district court erred by denying his § 3582(c)(2) motion.

He contends Amendment 599 forbids the seven-level enhancement for the discharge

of a firearm when a defendant is charged with both (1) an underlying robbery offense

and (2) a § 924(c) offense arising out of the same offense conduct.

The district court did not err in denying Appellant’s § 3582(c)(2) motion

because Amendment 599 did not materially change the relevant language of § 2K2.4’s

application note two. Appellant relies upon the first sentence of Amendment 599, but

that sentence merely reiterates the rule against double-counting offense conduct for

sentencing purposes. United States v. Diaz, 248 F.3d 1065, 1106–07 (11th Cir. 2001)

(noting that “[t]he first sentence of the new application note reinforces what courts

have always known,” i.e., double-counting is not permissible). In fact, the first

sentence of Amendment 599 does not differ significantly from the corresponding

portion of the 1992 version of the Guidelines, which stated, “[w]here a sentence under

this section is imposed in conjunction with a sentence for an underlying offense, any

specific offense characteristic for the possession, use, or discharge of a firearm (e.g.

§ 2B3.1(b)(2)(A)–(F) (Robbery)), is not to be applied in respect to the guideline for

the underlying offense.” U.S.S.G. § 2K2.4, comment. (n.2) (Nov. 1992). Amendment

599 changed the language of the application note from passive to active voice, but it

did not make any substantive change that would affect Appellant’s sentence.

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Appellant argues alternatively that Amendment 599 must be read in conjunction

with Amendment 489, and that under the combined amendments, he is entitled to

relief. Whatever effect Amendment 489’s substitution of an upward departure for the

subtraction procedure might have on Appellant’s sentence, Amendment 489 has not

been made retroactive. U.S.S.G. § 1B1.10(c). Appellant cannot clothe an argument

based upon Amendment 489 in the garb of Amendment 599 in order to take advantage

of Amendment 599’s retroactivity. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10.

AFFIRMED.