United States v. Cornell Devon Atwell , 172 F. App'x 266 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
MARCH 6, 2006
No. 05-10064
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 98-00065-CR-ORL-22-JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CORNELL DEVON ATWELL, a. k. a.
Banji,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 6, 2006)
Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Defendant-Appellant Cornell Devon Atwell, a federal prisoner appealing
pro se, appeals the district court’s denial of his section 18 U.S.C. §3582(c)(2)
motion seeking modification of his term of imprisonment. No reversible error has
been shown; we affirm.
Defendant was convicted in June 1998 of five counts: (1) conspiracy to
possess marijuana with intent to distribute, in violation of 21 U.S.C. §846; (2)
possession of marijuana with intent to distribute, in violation of 21 U.S.C.
§841(a)(1) and 18 U.S.C. §2; (3) conspiracy to use and carry a firearm during and
in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(o); (4)
using and carrying a firearm during and in relation to a drug trafficking offense, in
violation of 18 U.S.C. §§ 924(c)(1) and (2); and (5) possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The PSI first
calculated a total offense level of 26: the base offense level was 24 pursuant to
U.S.S.G. §§ 3D1.3(a) and 2K2.1, plus a two-level increase was imposed under §
2K2.1(b)(4) because the firearm with which Defendant was found was stolen. But
the PSI also determined that the career offender and armed career offender
provisions in U.S.S.G. §§4B1.2 and 4B1.4(b)(2), applied; under the career
offender provisions, the PSI recommended an enhanced offense level of 37, a
criminal history category of VI, and a guideline range of 360 months to life.
The district court determined that scoring under the career offender
provisions was proper but concluded that Defendant’s criminal history was over-
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represented. The district court decided to depart downward to a base offense level
of 30. Defendant was sentenced to a total of 270 months’ imprisonment.
Defendant moved pursuant to 18 U.S.C. 3582(c)(2) for a reduction of
sentence arguing that Amendment 599 to U.S.S.G. § 2K2.4 applied retroactively
to preclude his possession of a firearm from contributing to his sentence
calculation under more than one guideline section. The district court denied
Defendant’s motion without opinion.
We review denial of a motion to reduce sentence under 18 U.S.C. §
3582(c)(2) for abuse of discretion. See United States v. Brown, 332 F.3d 1341,
1343 (11th Cir. 2003). Under certain circumstances, a court may, after
consideration of sentencing factors set out in 18 U.S.C. § 3553(a), reduce the term
of imprisonment based on a later lowering of the sentencing range by the
Sentencing Commission “if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
Amendment 599 altered § 2K2.4 and clarified the circumstances under
which a court may impose a weapons enhancement on a defendant convicted of a
firearms offense under 18 U.S.C. § 924(c). See 2000 Federal Sentencing
Guidelines Manual, Appendix C; see also United States v. Pringle, 350 F.3d 1172,
1176 (11th Cir. 2003). But Defendant’s first sentence calculation that included
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scoring under § 2K2.4 was trumped by the greater sentence applicable to a career
offender under Chapter Four; § 2K2.4 had no effect on the sentence actually
imposed. Because Defendant was not sentenced under § 2K2.4 (the section
addressed by Amendment 599), Amendment 599 is inapposite. See United States
v. Sanders, 372 F.3d 1183, 1186 (10th Cir. 2004) (“Amendment 599 has nothing to
do with § 4B1.4 but instead applies to § 2K2.4 of the Guidelines.”). Amendment
599 can support no reduction in Defendant’s sentence. See United States v.
Armstrong, 347 F.3d 905, 907 (11th Cir. 2003) (Amendment 599 has no
application when a defendant’s sentence was not increased because of his
possession of a firearm). No abuse of discretion has been shown.1
AFFIRMED.
1
Defendant also argues that a reduction is due under Amendment 600. Amendment 600 revised
§ 2K2.4 to prohibit the use of 18 U.S.C. § 924(c) convictions “either to trigger application of the
career offender guideline, U.S.S.G. § 4B1.1, or to determine the appropriate offense level under that
guideline.” U.S.S.G. Manual Supp. to App. C (Nov. 1, 2002). Even assuming arguendo that this
issue is properly preserved on appeal -- Amendment 600 was not cited in Defendant’s motion --
Amendment 600 offers Defendant no relief. Retroactive application of a guidelines amendment is
consistent with Sentencing Commission policy only if the amendment is listed in U.S.S.G.§
1B1.10(c). See Armstrong, 347 F.3d at 907. Amendment 600 is not listed in U.S.S.G. § 1B1.10(c).
The district court’s failure to apply Amendment 600 retroactively to modify Defendant’s sentence
supports no abuse of discretion claim. Id.
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