United States v. Maurice Lawrence Williams , 373 F. App'x 27 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14730 ELEVENTH CIRCUIT
APRIL 8, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 04-00046-CR-BAE-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICE LAWRENCE WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 8, 2010)
Before BIRCH, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Maurice Lawrence Williams, proceeding pro se, appeals the district court's
denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction. Williams’
motion was based on Amendment 709 to the Sentencing Guidelines, which is not a
retroactively applicable guideline amendment listed in U.S.S.G. § 1B1.10(c) and
therefore cannot serve as the basis for § 3582(c)(2) relief. Accordingly, we
AFFIRM.
I. BACKGROUND
Maurice Lawrence Williams pled guilty to distribution of cocaine base, a
violation of 21 U.S.C. § 841(a)(1), and using and carrying a firearm during a drug
trafficking crime, a violation of 18 U.S.C. § 924(c). R1-34. The presentence
investigation report determined that Williams’s total offense level was 17 and his
criminal history category was IV. The district court imposed a total sentence of
100 months: 40 months of imprisonment for the cocaine offense, followed by 60
months of imprisonment for the firearm offense. R1-35.
Subsequently, Williams filed a motion for a sentence reduction pursuant to
18 U.S.C. § 3582(c)(2), contending that he was entitled to a sentence reduction in
light of recent amendments to the Sentencing Guidelines. R1-54. Specifically, his
motion was based on Amendments 706 and 709. Id. The court determined that
Williams’ amended offense level was 15 and that his criminal history category
2
remained IV. R1-55. The court granted his motion and reduced his total sentence
to 97 months: 37 months of imprisonment for the cocaine offense, followed by
60 months of imprisonment for the firearm offense. Id. Williams appealed the
district court’s “denial of full relief.” R1-56.
On appeal, we vacated Williams’s sentence because the district court did not
demonstrate that it had considered the 18 U.S.C. § 3553 sentencing factors. R1-62.
On remand, the district court imposed the same sentence and clarified that it did so
after considering the relevant factors. R1-61.
Williams then filed the present § 3582(c)(2) motion, arguing that, in
resolving his earlier motion, the court erroneously failed to consider the effect of
Amendment 709. R1-63 at 2. He contended that Amendment 709, which concerns
counting offenses to determine a defendant’s criminal history score, is a clarifying
amendment that must be applied retroactively. Id. at 2-3. The district court denied
Williams’s motion, concluding that Amendment 709 is not retroactive. R1-66.
II. DISCUSSION
On appeal, Williams argues, pro se, that the district court abused its
authority by denying his 18 U.S.C. § 3582(c)(2) motion. He contends that the
court erroneously assigned him a criminal history category of IV, and that his true
3
criminal history category was II. Accordingly, his guideline range was calculated
incorrectly, and his sentence is unjust.
Williams’ pro se argument may be liberally construed as a contention that
the district court erred in concluding that Amendment 709 did not entitle him to a §
3582(c)(2) reduction. See Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998) (per curiam) (holding that pro se pleadings will be liberally
construed). 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) (per curiam). Pursuant to 18 U.S.C. § 3582(c)(2), a
district court may modify a defendant’s sentence that was based on a sentencing
range that subsequently has been lowered by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). Any reduction, however, must be “consistent with
applicable policy statements issued by the Sentencing Commission.” Id. The
applicable policy statement states that a sentence reduction is not authorized under
§ 3582(c)(2) unless an amendment listed in U.S.S.G. § 1B1.10(c) is applicable to
the defendant. U.S.S.G. § 1B1.10(a)(2)(A), p.s. (Nov. 2009). Amendment 709 is
not listed in U.S.S.G. § 1B1.10(c). See U.S.S.G. § 1B1.10(c), p.s.
Where an amendment is not listed in § 1B1.10(c), it cannot serve as the basis
for a § 3582(c)(2) reduction. United States v. Armstrong, 347 F.3d 905, 909 (11th
4
Cir. 2003) (holding that, although the amendment at issue was a “clarifying
amendment” and therefore applied retroactively in the context of direct appeals and
habeas petitions, it could not serve as the basis for a § 3582(c)(2) reduction
because it was not listed in § 1B1.10(c)).
III. CONCLUSION
Here, the district court correctly concluded that Williams was not eligible for
a § 3582(c)(2) sentence reduction based on Amendment 709, because Amendment
709 is not a retroactively applicable guideline amendment listed in § 1B1.10(c).
Accordingly, we AFFIRM.
5