United States v. Garland Wayne Carr, Jr. , 189 F. App'x 907 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUL 13, 2006
No. 06-10899 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-00251-CR-T-26-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARLAND WAYNE CARR, JR.,
a.k.a. Rusty,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 13, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Garland Wayne Carr, Jr. appeals, pro se, the district court’s denial of his 18
U.S.C. § 3582(c)(2) motion to reduce his sentence pursuant to Amendment 591 to
the United States Sentencing Guidelines. On October 19, 1999, Carr was
sentenced to 240 months imprisonment after a jury found him guilty of (1)
conspiring to distribute a quantity of a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and
(2) distributing a quantity of a mixture or substance containing a detectable
amount of amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1).
The presentence investigation report set Carr’s base offense level at 32, holding
him accountable for at least 500 grams of methamphetamine pursuant to U.S.S.G.
§ 2D1.1(a)(c)(7), and the district court did hold him accountable for that amount at
sentencing. On January 13, 2006, the district court denied Carr’s motion to reduce
that sentence, which is the subject of this appeal.
Carr contends that Amendment 591 requires the district court to consider the
offense conduct charged in the indictment, a detectable amount of
methamphetamine (not 500 grams of methamphetamine), and to apply U.S.S.G. §
2D1.1(c)(13), which would reduce his sentence from 240 months to less than 120
months and result in a downward departure for an overstated criminal history. He
argues that holding him accountable for at least 500 grams of methamphetamine is
synonymous with holding him accountable for uncharged relevant conduct. Carr
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contends that the district court interpreted Amendment 591 too narrowly in finding
that it only applies to U.S.S.G. § 2D1.2. Carr’s contention that the district court
could not hold him accountable for at least 500 grams of methamphetamine in
determining his base offense level is incorrect.
We review a district court’s decision whether to reduce a defendant’s
sentence pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion. See United
States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003). We review de novo the
district court’s legal conclusions about the scope of its authority under the
Sentencing Guidelines. See United States v. Armstrong, 347 F.3d 905, 907 n.2
(11th Cir. 2003).
“Under 18 U.S.C. § 3582(c)(2), a district court has discretion to reduce the
term of imprisonment of an already incarcerated defendant when that defendant
was sentenced based on a sentencing range that was subsequently lowered by the
Sentencing Commission pursuant to 28 U.S.C. § 994(o).” United States v. Bravo,
203 F.3d 778, 780 (11th Cir. 2000). Section 3582(c)(2) grants the district court
jurisdiction to reconsider original sentencing determinations where the retroactive
reduction in sentence is “consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Amendment 591 is
retroactively applicable. U.S.S.G. § 1B1.10(c).
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Amendment 591 amends U.S.S.G. § 1B1.1(a) to instruct the district court to
“[d]etermine, pursuant to § 1B1.2 (Applicable Guidelines), the offense guideline
section from Chapter Two (Offense Conduct) applicable to the offense of
conviction.” U.S.S.G. App. C, Amend. 591. The amended commentary to § 1B1.2
reads: “This section provides the basic rules for determining the guidelines
applicable to the offense conduct under Chapter Two (Offense Conduct). The
court is to use the Chapter Two guideline section referenced in the Statutory Index
(Appendix A) for the offense of conviction.” Id. (amending U.S.S.G. § 1B1.2).
Nothing in the plain language of the amendment or its commentary supports the
district court’s finding that it applies only to § 2D1.2. Instead, the language reveals
that it applies to all guidelines sections available under Chapter Two. Although we
stated in United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005), that
Amendment 591 “was designed to clarify [when] enhanced penalties provided by
U.S.S.G § 2D1.2” apply, we did not hold or mean to imply that Amendment 591 is
only applicable where a defendant’s sentence is increased by § 2D1.2.
Carr still loses, however, because this case is controlled by our holding in
Moreno. In that case, the defendant, like Carr, had been convicted under 21 U.S.C.
§§ 846 and 841(a)(1). 421 F.3d at 1219. He appealed the district court’s denial of
his § 3582(c)(2) motion for a reduction of sentence. Id. at 1218. Also like Carr,
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the defendant argued that Amendment 591 prohibited the court “from selecting the
base offense level . . . where the judge (not the jury) found the requisite drug
quantity used in determining the appropriate base offense level under the
applicable offense guideline.” Id. at 1219.
We held that “Amendment 591 directs the district court to apply the
guideline dictated by the statute of conviction, but does not constrain the use of
judicially found facts to select a base offense level within the relevant guideline.”
Id. at 1219–20. Any argument to the contrary “‘confuses two distinct steps taken
to arrive at a guidelines sentence: [1] selection of the applicable offense guideline,
and [2] selection of the base offense level within that applicable offense
guideline.’” Id. at 1220 (quoting United States v. Rivera, 293 F.3d 584, 586 (2d
Cir. 2002)). We held that “because Amendment 591 only applies to the selection
of the relevant offense guideline, not the selection of a base offense level within
the applicable offense guideline, the district court did not abuse its discretion by
denying [the defendant’s] § 3582(c)(2) motion.” Id.
To the extent Carr argues that Moreno was wrongly decided and should be
overturned, his argument is foreclosed by the prior panel precedent rule. Smith v.
GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001) (“Under the well-established
prior panel precedent rule of this Circuit, the holding of the first panel to address
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an issue is the law of this Circuit, thereby binding all subsequent panels unless and
until the first panel’s holding is overruled by the Court sitting en banc or by the
Supreme Court.”).
Amendment 591 governs only the choice of the appropriate offense
guideline, not the base offense level within that guideline. Carr’s contention is
without merit, and we affirm the district court’s denial of his § 3582(c)(2) motion.
See Calhoun v. Lillenas Publ’g, 298 F.3d 1228, 1230 n.2 (11th Cir. 2002) (“We
may affirm the district court on different grounds as long as the judgment entered
is correct on any legal ground regardless of the grounds addressed, adopted or
rejected by the district court.”) (internal quotation marks omitted).
AFFIRMED.
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