United States v. Keating , 101 F. App'x 394 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6066
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROHAN ST. JOSEPH KEATING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District
Judge. (CR-93-66-2)
Submitted: May 28, 2004 Decided: June 15, 2004
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rohan St. Joseph Keating, Appellant Pro Se. Janet S. Reincke,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Rohan St. Joseph Keating appeals from the district
court’s denial of his 18 U.S.C. § 3582(c)(2) (2000) motion.
Keating sought reduction of his sentence based on Amendment 591 to
the sentencing guidelines. Finding no error, we affirm.
We review the denial of a motion to modify sentence for
abuse of discretion. United States v. Turner, 59 F.3d 481, 483
(4th Cir. 1995). The sentencing court may reduce a defendant’s
term of imprisonment if his sentence was based on a sentencing
range subsequently lowered by the Sentencing Commission. 18 U.S.C.
§ 3582(c)(2). Section 1B1.10 of the sentencing guidelines provides
that, where the guidelines range applicable to a defendant has
subsequently been lowered as a result of an amendment listed in
subsection (c), a reduction is authorized under § 3582(c)(2). U.S.
Sentencing Guidelines Manual § 1B1.10 (2003).
Amendment 591 is one of the listed amendments that
applies retroactively. USSG § 1B1.10(c). Amendment 591 requires
the sentencing court to apply the offense guideline referenced in
the Statutory Index in Appendix A for the statute of conviction.
USSG App. C, Amend. 591. The amendment clarified USSG §§ 1B1.1 and
1B1.2, which some circuits previously interpreted as permitting a
court to use an offender’s actual conduct in selecting the offense
guideline, even if that conduct was not charged in the indictment.
See United States v. Rivera, 293 F.3d 584, 586-87 (2d Cir. 2002).
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We find that the district court acted in accordance with USSG
§§ 1B1.1 and 1B1.2 at sentencing when it consulted the Statutory
Index and referred to USSG § 2D1.1 as the proper guideline for
Keating’s convictions under 21 U.S.C. §§ 841, 846 (2000). See
USSG, App. A.
Keating argues that his guideline range was improperly
based on quantities and types of drugs determined by the sentencing
court, resulting in a base offense level higher than the offense
level supported by the facts alleged in the indictment or found by
the jury. Keating is confused, however, because Amendment 591 does
not impact how the base offense level is calculated within the
appropriate guideline. Instead, Amendment 591 affects which
guideline will be used in determining the base offense level.
Here, Keating does not challenge the guidelines used by the
district court; he simply challenges the court’s application of the
guideline, an issue not addressed by Amendment 591.
Accordingly, we affirm the district court’s denial of
Keating’s motion. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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