United States v. Jimmy Bernard Barkley , 615 F. App'x 557 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12231
Non-Argument Calendar
________________________
D.C. Docket No. 5:91-cr-00010-CAR-CHW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY BERNARD BARKLEY,
a.k.a. J.B.,
Defendant-Appellant.
________________________
No. 14-12255
Non-Argument Calendar
________________________
D.C. Docket No. 5:91-cr-00010-CAR-CHW-2
UNITED STATES OF AMERICA,
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Plaintiff-Appellee,
versus
JIMMY BERNARD BARKLEY,
a.k.a. J.B.,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Georgia
________________________
(June 23, 2015)
Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Jimmy Barkley, a federal prisoner proceeding pro se, appeals the district
court’s denial of his motions for a sentence reduction, based on Amendments 591,
706, 711, and 750 to the Sentencing Guidelines. After review, we affirm.
I. BACKGROUND FACTS
A. 1991 Conviction and 1992 Sentences
In 1991, after a jury trial, Barkley was convicted of conspiring to possess
cocaine base using individuals under the age of 18, in violation of 21 U.S.C.
§§ 845b and 846 (Count 1); possessing with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (Count 2); and using a firearm in relation to a
drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count 3).
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Barkley’s presentence investigation report (“PSI”) grouped Counts 1 and 2,
pursuant to U.S.S.G. § 3D1.2(b). Count 3, the firearm offense, required a
consecutive five-year sentence to any sentence imposed on Counts 1 and 2. The
PSI initially determined that the total offense level for Counts 1 and 2 was 35
based on the drug quantity involved and increased by one additional offense level
for the use of minors. See U.S.S.G. § 2D1.2(a)(2) (1991) (setting the offense level
for drug offenses involving minors as the offense level from the Drug Quantity
Table in § 2D1.1 plus one offense level). The PSI calculated 12 criminal history
points, which resulted in a criminal history category of V. See U.S.S.G. ch. 5, pt.
A (Sentencing Table) (1991).
However, because Barkley qualified as a career offender pursuant to
U.S.S.G. § 4B1.1, the PSI assigned Barkley a total offense level of 37, which was
greater than the offense level of 35 under § 2D1.2(a)(2). See U.S.S.G. § 4B1.1(A)
(1991) (providing for an offense level of 37 for offenses with a statutory maximum
of life if it is greater than the otherwise applicable offense level). Based on
Barkley’s career-offender status, the PSI also assigned a criminal history category
of VI. Id. (providing for a criminal history category of VI in every case) Thus,
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based on Barkley’s career-offender status, the PSI stated that Barkley’s guidelines
range was 360 months to life in prison. 1
Barkley objected to the PSI’s recitation of the offense conduct (paragraphs 9
through 25), maintaining that he had “no involvement” in the charged offenses,
and objected to the PSI’s drug quantity amount (paragraph 37) used to determine
his base offense level under § 2D1.1’s Drug Quantity Table. Barkley did not
object to his designation as a career offender or to his offense level and guidelines
range as calculated under § 4B1.1 (paragraphs 65, 66 and 72).
At his April 1992 sentencing, Barkley advised the district court that the PSI
Addendum correctly noted his objections, and he continued to deny his
involvement in the charged offenses. Barkley also asked for the “minimum
sentence,” pointing out that he had arrived in the Macon area only in the final
weeks of the charged conspiracy and was not a ringleader.
Without explicitly ruling on Barkley’s factual objections, adopting the PSI,
or calculating the applicable guidelines range, the district court imposed concurrent
life sentences on Counts 1 and 2, followed by the mandatory, consecutive five-year
sentence on Count 3. The district court explained, however, that it was
“sentencing [Barkley] to the top of the guidelines” because of “the magnitude of
1
If the career offender provision had not applied, Barkley’s initial offense level of 35 and
criminal history category of V would have yielded a guidelines range of 262 to 327 months in
prison. See U.S.S.G. ch. 5, pt. A (Sentencing Table) (1991).
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the crime that [Barkley was] involved in and the role that [Barkley] played.” The
district court asked for objections to “anything that the Court has done in the way
of sentencing,” and there were none.
Shortly thereafter, the district court entered a judgment consistent with its
oral pronouncement. In its statement of reasons, the district court stated that it
adopted the PSI’s factual findings and guidelines calculations, and found that the
total offense level was 37, the criminal history category was VI, and the guidelines
range was 360 months to life in prison, plus 60 consecutive months for Count 3.
The district court further indicated that it had imposed a sentence within the
guidelines range “based on the seriousness of the offense and prior criminal
conduct.” This Court affirmed Barkley’s convictions and sentences on appeal.
B. Section 3582(c)(2) Motions in 2011
In 2011, Barkley filed a pro se 18 U.S.C. § 3582(c)(2) motion to reduce his
sentence based on Amendment 706, as amended by Amendment 711, which
lowered the offense levels for cocaine base offenses in § 2D1.1’s Drug Quantity
Table.2 Barkley’s § 3582(c)(2) motion also relied on Amendment 591, which
clarified that the enhanced penalties for drug offenses involving minors applied
only where the offense of conviction (rather than uncharged relevant conduct) is
2
Specifically, Amendment 706 lowered the base offense level for most cocaine base
offenses by two levels, and Amendment 711 altered the method for determining drug quantity
outlined in Amendment 706 when multiple drugs were involved. See U.S.S.G. app. C. amends.
706, 711.
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referenced in § 2D1.2. See United States v. Moreno, 421 F.3d 1217, 1219 (11th
Cir. 2005); U.S.S.G. app. C, amend. 591.
The district court denied Barkley’s § 3582(c)(2) motion, concluding that he
was ineligible for a sentence reduction because “[i]t has been previously
determined that [Barkley] is a Career Offender pursuant to USSG § 4B1.1.”
Barkley filed a pro se motion for reconsideration, arguing that the district court
never found that he was a career offender. While his motion for reconsideration
was pending, Barkley filed a second pro se § 3582(c)(2) motion, this time citing
Amendment 750, which changed the base offense levels for cocaine base offenses
in the Drug Quantity Table to conform to the Fair Sentencing Act of 2010. See
U.S.S.G. app. C., amend. 750. Then, Barkley filed an amended, counseled
§ 3582(c)(2) motion that argued, inter alia, that it was not possible to determine
from the record whether Barkley was sentenced as a career offender, and thus he
was eligible for a sentence reduction.3
In May 2014, the district court denied Barkley’s motion for reconsideration
of his first, pro se § 3582(c)(2) motion. The district court concluded that there was
“ample evidence in the record” that Barkley was sentenced as a career offender.
The district court recounted that the sentencing court sentenced Barkley within the
career offender guidelines range as calculated in the PSI and adopted that range in
3
Amendments 591, 706, and 750 are all retroactively applicable and may be enforced
through a § 3582(c)(2) motion. See U.S.S.G. § 1B1.10(c), (d).
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its Statement of Reasons in the written judgment. In a separate order, the district
court denied Barkley’s second, counseled § 3582(c)(2) motion, again finding that
Barkley was not entitled to a sentence reduction because the record was clear that
Barkley was sentenced as a career offender.
II. DISCUSSION
Under § 3582(c)(2), the district court has the authority to reduce a
defendant’s prison sentence if it was “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); see also U.S.S.G. § 1B1.10(a)(1). If,
however, the defendant’s sentencing range is not lowered by the retroactively
applicable guideline amendment, the district court has no authority to reduce the
defendant’s sentence. United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.
2008); U.S.S.G. § 1B1.10(a)(2)(B). The Guidelines commentary explains that a
reduction under § 3582(c)(2) is not authorized where “an amendment . . . is
applicable to the defendant but the amendment does not have the effect of lowering
the defendant’s applicable guideline range because of the operation of another
guideline or statutory provision . . . .” U.S.S.G. § 1B1.10 cmt. n.1(A). For this
reason, defendants who were convicted of cocaine base offenses but sentenced as
career offenders are not eligible for § 3582(c)(2) relief based on amendments to
U.S.S.G. § 2D1.1’s Drug Quantity Table because these defendants’ “sentences
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were based on the guideline ranges applicable to career offenders under § 4B1.1”
and their “base offense levels under § 2D1.1 played no role in the calculation of
these ranges.” Moore, 541 F.3d at 1327 (involving a § 3582(c)(2) motion based on
Amendment 706).4
Here, Barkley is not eligible for a § 3582(c)(2) sentence reduction based on
Amendments 591, 706, and 750. Even assuming arguendo that the district court’s
oral pronouncement of Barkley’s sentence, standing alone, was ambiguous, other
evidence in the record makes clear that the district court sentenced Barkley as a
career offender. See United States v. Khoury, 901 F.2d 975, 977 (11th Cir. 1990)
(explaining that where the district court’s oral pronouncement of the sentence is
ambiguous, the reviewing court may consider extrinsic evidence, including the
commitment order, to discern the district court’s intent). Specifically, the district
court stated at sentencing that it was imposing life sentences at “the top of the
guidelines,” and the guidelines range calculated in the PSI pursuant to § 4B1.1’s
career offender provision was 360 months to life imprisonment. Further, the
district court’s Statement of Reasons in the written judgment stated that the district
court had adopted the PSI and then calculated the guidelines range in accordance
with career offender provision, finding a base offense level of 37 and a criminal
4
“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. Jones, 548 F.3d 1366, 1368 (11th Cir. 2008).
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history category of VI. We readily conclude that the district court’s intent was to
sentence Barkley as a career offender. 5
Barkley’s sentencing range and ultimate sentence were based on the offense
level of 37 from § 4B1.1(A), and not on his initial base offense level of 35 from
§ 2D1.2 and the Drug Quantity Table in § 2D1.1, the provisions affected by
Amendments 591, 706, and 750. Thus, those amendments did not lower his
applicable guidelines range. Because Barkley’s total sentence was not “based on”
an amended guidelines provision, he is ineligible for a § 3582(c)(2) sentence
reduction.
Barkley argues that the district court procedurally erred by not calculating
his amended base offense level under U.S.S.G. § 2D1.2 and the Drug Quantity
Table before denying his § 3582(c)(2) motion. See United States v. Bravo, 203
F.3d 778, 780 (11th Cir. 2000) (describing two-step process for evaluating a
§ 3582(c)(2) motion in which the district court first recalculates the amended
guidelines range using the new base offense level and then decides whether to
exercise its discretion to impose a sentence within the new sentencing range or
retain the original sentence). Barkley’s argument fails because he overlooks that
5
While Barkley now challenges his career-offender designation, he cannot challenge that
determination in his § 3582(c)(2) proceeding. See United States v. Bravo, 203 F.3d 778, 780
(11th Cir. 2000) (explaining that all original sentencing determinations other than the amended
guidelines provision remain unchanged in a § 3582(c)(2) proceeding); 18 U.S.C. § 3582(c)(2)
(limiting proceedings to cases in which a retroactive guidelines amendment affects the applicable
sentencing range).
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the first step under Bravo requires the district court to recalculate the amended
guidelines range keeping all other guideline decisions intact, including the decision
to apply the career offender guideline in § 4B1.1. Id. at 780. By virtue of § 4B1.1,
Barkley’s guidelines range did not change. As such, it was unnecessary for the
district court to specify Barkley’s amended base offense level under § 2D1.2 in its
orders.
In sum, because Barkley’s total sentence is not “based on” an amended
guidelines provision, he was ineligible for a sentence reduction. Accordingly, the
district court properly denied his § 3582(c)(2) motions and his motion for
reconsideration.
AFFIRMED.
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