United States v. Richard Lee McCoy , 362 F. App'x 983 ( 2010 )


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  •                                                              [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________          FILED
    U.S. COURT OF APPEALS
    No. 09-14093         ELEVENTH CIRCUIT
    JANUARY 27, 2010
    Non-Argument Calendar
    JOHN LEY
    ________________________
    ACTING CLERK
    D. C. Docket No. 95-00003-CR-WLS-6
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RICHARD LEE MCCOY,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Georgia
    _________________________
    (January 27, 2010)
    Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
    PER CURIAM:
    Richard Lee McCoy appeals the district court’s denial of his 
    18 U.S.C. § 3582
    (c)(2) motion for a sentence reduction pursuant to Amendment 706 to the
    Sentencing Guidelines. On appeal, McCoy argues that even though at sentencing
    he qualified as a career offender under U.S.S.G. § 4B1.1, he was not sentenced as
    one because his base offense level was based on U.S.S.G. § 2D1.1. After a review
    of the record, we affirm.
    McCoy was convicted of conspiracy to possess with intent to distribute
    crack cocaine in 1997. In calculating McCoy’s sentencing range, the probation
    officer determined the base offense level to be 34 due to the amount of drugs
    involved. The probation officer then found that McCoy qualified as a career
    offender under U.S.S.G. § 4B1.1 based on his 2 prior controlled substance offenses
    and the adjusted offense level under § 4B1.1 remained 34. The applicable criminal
    history category was VI based on McCoy’s actual criminal history and as a result
    of the career-offender guideline. The resulting guidelines range was 262 to 327
    months’ imprisonment. McCoy did not object to the probation officer’s
    calculations. The court sentenced McCoy to the low end of this guidelines range.
    In imposing sentence, the court adopted the probation officer’s calculations, but
    did not specifically refer to the career-offender provision.
    McCoy filed a 
    28 U.S.C. § 2255
     motion to vacate sentence in 1999. The
    district court denied the motion, stating that although McCoy qualified as a career
    offender based on his criminal history, he had not specifically been sentenced as
    2
    one because he was sentenced under the normal guideline provisions.
    After the U.S. Sentencing Commission enacted Amendment 706 to reduce
    the base offense level for crack cocaine offenses in 2007 and made the reduction
    retroactive in Amendment 713 in 2008, McCoy filed a pro se motion for a sentence
    reduction under 
    18 U.S.C. § 3582
    (c)(2). The district court denied the motion,
    explaining that McCoy’s guidelines range was not affected by the amendment
    because McCoy was sentenced as a career offender. McCoy filed motions for
    reconsideration, one with the assistance of counsel. The district court denied the
    motions, and this appeal followed.
    We “review de novo a district court’s conclusions about the scope of its legal
    authority under 
    18 U.S.C. § 3582
    (c)(2).” United States v. James, 
    548 F.3d 983
    ,
    984 (11th Cir. 2008). Under § 3582(c)(2), a district court has discretion to reduce
    the term of imprisonment of an already incarcerated defendant if that defendant
    “has been sentenced to a term of imprisonment based on a sentencing range that
    has subsequently been lowered by the Sentencing Commission pursuant to 
    28 U.S.C. § 994
    (o).” 
    18 U.S.C. § 3582
    (c)(2).
    As this court has held, a defendant sentenced pursuant to an offense level
    determined by § 4B1.1 of the Guidelines is not entitled to § 3582(c)(2) relief
    because Amendments 706 and 713 do not lower the applicable guideline range for
    3
    career offenders. United States v. Moore, 
    541 F.3d 1323
    , 1327-28 (11th Cir.
    2008), cert. denied, McFadden v. United States, 
    129 S.Ct. 965
    , and cert. denied,
    
    129 S.Ct. 1601
     (2009).
    Although McCoy argues that he was not sentenced as a career offender, we
    conclude that he was and therefore our precedent bars his claim. According to the
    record, McCoy qualified as a career offender under U.S.S.G. § 4B1.1, and the
    district court adopted the probation officer’s calculation of him as one. Thus, the
    reduction under Amendment 706 would not have affected McCoy’s guidelines
    range and the district court properly denied McCoy’s § 3582(c) motion for a
    reduction of sentence.
    AFFIRMED.
    4
    

Document Info

Docket Number: 09-14093

Citation Numbers: 362 F. App'x 983

Judges: Kravitch, Per Curiam, Tjoflat, Wilson

Filed Date: 1/27/2010

Precedential Status: Non-Precedential

Modified Date: 8/2/2023