United States v. Patrick Thomas Enright , 260 F. App'x 155 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 14, 2007
No. 07-12590 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-00002-CR-KD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK THOMAS ENRIGHT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(December 14, 2007)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Patrick Enright, a pro se federal prisoner, appeals the denial of his motion
for a reduction of his sentence. See 18 U.S.C. § 3582(c)(2). In 1997 and 1998,
Enright pleaded guilty to three counts of bank robbery, see 18 U.S.C. § 2113(a),
and one count of possession of a firearm by a convicted felon, see 18 U.S.C. §
922(g), and was sentenced to 180 months of imprisonment. Enright argues that
Amendments 591 and 599 to the United States Sentencing Guidelines provide a
basis to reduce his sentence. We disagree with Enright and affirm.
We review the decision of a district court not to reduce a sentence, see 18
U.S.C. § 3582(c)(2), for an abuse of discretion. United States v. Moreno, 421 F.3d
1217, 1219 (11th Cir. 2005). A court ordinarily “may not modify a term of
imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). A court may,
however, reduce the term of imprisonment when the sentencing range on which the
sentence was based “has subsequently been lowered by the Sentencing
Commission,” the court has considered “the factors set forth in [18 U.S.C.] section
3553(a) to the extent that they are applicable,” and “a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.” Id. §
3582(c)(2).
The applicable policy statement, United States Sentencing Guideline §
1B1.10(a), provides that a reduction in sentence is warranted when a guideline
range has been lowered for a listed amendment:
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Where a defendant is serving a term of imprisonment, and the
guideline range applicable to that defendant has subsequently been
lowered as a result of an amendment to the Guidelines Manual listed
in subsection (c) below, a reduction in the defendant’s term of
imprisonment is authorized under 18 U.S.C. § 3582(c)(2). If none of
the amendments listed in subsection (c) is applicable, a reduction in
the defendant’s term of imprisonment . . . is not consistent with this
policy statement and thus is not authorized.
United States Sentencing Guidelines § 1B1.10(a) (Nov. 2006). Amendments 591
and 599 are listed as amendments covered by the policy statement. Id. §
1B1.10(c).
Enright first argues that the upward departure imposed by the district court
based on its finding that the criminal history category calculated in the presentence
investigation report did not “adequately reflect the seriousness of [Enright’s] past
criminal conduct or the likelihood that [Enright would] commit other crimes,” see
U.S.S.G. § 4A1.3 (Nov. 1997), violated Amendment 591. Amendment 591
became effective November 1, 2000, and modified section 1B1.1(a) of the
Sentencing Guidelines by replacing the existing language with the following rule
for the initial selection of the offense guideline: “Determine, pursuant to § 1B1.2
(Applicable Guidelines), the offense guideline section from Chapter Two (Offense
Conduct) applicable to the offense of conviction. See § 1B1.2.” U.S.S.G. app. C,
amend. 591 (Nov. 2006). “Amendment 591requires that the initial selection of the
offense guideline be based only on the statute or offense of conviction rather than
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on judicial findings of actual conduct not made by the jury.” Moreno, 421 F.3d at
1219.
The district court did not abuse its discretion when it rejected Enright’s
argument. Amendment 591 addressed only the initial selection of the appropriate
offense guideline from Chapter 2 of the Sentencing Guidelines and did not affect
the authority of a district court to depart upward from the Guidelines range under
Chapter 4 of the Sentencing Guidelines. The district court identified the applicable
Guidelines range from Chapter 2 based on Enright’s offenses of conviction and
then departed upward from that range under Chapter 4 of the Sentencing
Guidelines. To the extent Enright argues that the district court erred when it
calculated Enright’s criminal history and imposed an upward departure, these
arguments do not rely on an amendment to the Sentencing Guidelines and are
invalid bases for a reduction of Enright’s sentence under section 3582(c)(2).
Enright next argues that Amendment 599 lowered the sentencing range on
which his sentence was based. Amendment 599 became effective November 1,
2000, and amended the commentary to section 2K2.4, which provides the base
offense level for individuals who have committed certain firearm offenses. See
U.S.S.G. app. C, amend. 599; id. § 2K2.4 (provides base offense level for firearm
convictions under sections 844(h), 924(c), or 929(a). Amendment 599 was
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intended to prevent double counting for firearm use in a single criminal event,
United States v. Pringle, 350 F.3d 1172, 1180 (11th Cir. 2003), but does not apply
when the defendant’s sentence was not increased because of possession of a
firearm. See United States v. Armstrong, 347 F.3d 905, 908 (11th Cir. 2003).
The district court again did not abuse its discretion. Amendment 599 does
not apply to Enright. Enright did not receive a weapons enhancement on any of his
bank robbery charges and was not sentenced for committing any of the offenses to
which Amendment 599 applies. Enright instead was sentenced for possession of a
firearm by a felon under section 922(g).
The denial of Enright’s motion to reduce his sentence is
AFFIRMED.
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