United States v. Trevin Nunnally , 472 F. App'x 901 ( 2012 )

Case: 11-13786 Date Filed: 07/17/2012 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13786
Non-Argument Calendar
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D.C. Docket No. 5:05-cr-00045-RS-GRJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TREVIN NUNNALLY,
a.k.a. Rick,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(July 17, 2012)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 11-13786 Date Filed: 07/17/2012 Page: 2 of 3
Trevin Nunnally, a federal prisoner proceeding pro se, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion that sought a sentence
reduction pursuant to Amendments 516, 518, and 667 to the Sentencing
Guidelines. On appeal, Nunnally argues that the district court erred by failing to
grant him relief under Amendments 518 and 667, and by construing his motion as
one seeking relief under Amendment 750.1
We review “a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343
(11th Cir. 2003). We review “de novo the district court’s legal conclusions
regarding the scope of its authority under the Sentencing Guidelines.” United
States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002).
Section 3582 provides that a court may reduce a defendant’s term of
imprisonment where a defendant was sentenced based on a sentencing range that
was subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C.
§ 994(o). 18 U.S.C. § 3582(c)(2); see also United States v. Stossel, 348 F.3d
1320, 1322 n.2 (11th Cir. 2003).
1
In his initial brief, Nunnally does not mention Amendment 516, and thus he has
waived any argument that his sentence should be reduced on this basis. See United States v.
Wright, 607 F.3d 708, 713 (11th Cir. 2010).
2
Case: 11-13786 Date Filed: 07/17/2012 Page: 3 of 3
Here, the district court properly denied Nunnally’s motion to reduce his
sentence under Amendments 518 and 667. Nunnally was sentenced in 2006, but
Amendment 518 became effective in 1995, see U.S.S.G. App. C, Amend. 518,
while Amendment 667 became effective in 2004, see id., Amend. 667. Because
these Amendments became effective before Nunnally’s sentencing date, they
cannot serve as the basis for relief under § 3582(c)(2), which is available only
where the sentencing guidelines were amended subsequent to sentencing. See 18
U.S.C. § 3582(c)(2).
Nunnally contends that the district court erred by construing his motion as
additionally seeking relief under Amendment 750. However, the district court
merely concluded that this issue was not yet ripe and dismissed it without
prejudice.2 Because Nunnally suffered no harm from this decision, we need not
address this issue further.
AFFIRMED.3
2
We note that during the pendency of this appeal, Amendment 750’s retroactivity
was incorporated into the Guidelines. See U.S.S.G. § 1B1.10(c); U.S.S.G. App. C, Amend. 759.
If he complies with the district court’s orders, see dkt. 273 at 2-3, dkt. 392 at 1, Nunnally is free
to file a new motion for relief that specifically addresses his arguments, if any, under these
Amendments.
3
Nunnally’s request for oral argument is DENIED.
3