United States v. Jimmy Lee Tucker, Jr. , 515 F. App'x 839 ( 2013 )

Case: 12-15365 Date Filed: 04/05/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15365
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cr-20673-DLG-25
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY LEE TUCKER, JR.,
a.k.a. Bob,
a.k.a. VT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 5, 2013)
Before BARKETT, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Case: 12-15365 Date Filed: 04/05/2013 Page: 2 of 3
Jimmy Lee Tucker, Jr., proceeding pro se, appeals the district court’s denial
of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 750 to the Sentencing Guidelines. The district court determined that
Tucker was not entitled to a sentence reduction because he had been sentenced as a
career offender under U.S.S.G. § 4B1.1.
We review de novo a district court’s conclusion that a defendant is not
eligible for § 3582(c)(2) relief. United States v. Glover, 686 F.3d 1203, 1206 (11th
Cir. 2012). A district court may modify a term of imprisonment if a defendant was
sentenced “based on a sentencing range that has subsequently been lowered by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Amendment 750 to the
Sentencing Guidelines retroactively lowered the sentencing range applicable to
crack cocaine offenses by revising the crack cocaine quantity tables listed in
U.S.S.G. § 2D1.1(c). See U.S.S.G. App. C, Amend. 750.
The record here shows that Tucker was sentenced as a career offender under
§ 4B1.1. Tucker’s base offense level under § 2D1.1 was 24 and his criminal
history category was VI. Because he qualified as a career offender under § 4B1.1,
his base offense level increased to 32. Tucker received a 3-point offense level
reduction for acceptance of responsibility, yielding a final offense level of 29.
Thus, his guideline sentencing range was 151 to 188 months. At sentencing, the
district court adopted the pre-sentence report’s calculations, including Tucker’s
2
Case: 12-15365 Date Filed: 04/05/2013 Page: 3 of 3
designation as a career offender, but granted a downward variance because of the
“small amount of drugs involved” in the offense. Tucker was sentenced to 139
months of imprisonment. After sentencing, the government filed a motion to
reduce the sentence under Fed. R. Crim. P. 35 based on Tucker’s substantial
assistance. The district court granted the motion and reduced Tucker’s sentence to
83 months.
Because Tucker’s sentence was based on the sentencing range determined
under § 4B1.1, Amendment 750 had no effect on the applicable sentencing range
and Tucker is ineligible for § 3582(c)(2) relief. See United States v. Lawson, 686
F.3d 1317, 1321 (11th Cir. 2012). The district court’s grant of a downward
variance and sentence reduction do not alter this conclusion. There is no indication
that the district court rejected Tucker’s classification as a career offender or that it
based Tucker’s sentence on the guideline range that would have applied absent the
career offender designation. See United States v. Moore, 541 F.3d 1323, 1329-30
(11th Cir. 2008). Instead, the district court simply granted a variance from the
career offender guideline range based on the circumstances of the offense and then
further reduced the sentence based on Tucker’s substantial assistance.
Accordingly, we affirm the district court’s denial of Tucker’s § 3582(c)(2) motion.
AFFIRMED.
3