USA v. Byron Keith Thomas, No. 11-15896 (11th Cir. 2012)

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS No. 11-15896 Non-Argument Calendar ________________________ ELEVENTH CIRCUIT APRIL 16, 2012 JOHN LEY CLERK D.C. Docket No. 9:98-cr-08105-DTKH-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BYRON KEITH THOMAS, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (April 16, 2012) Before CARNES, HULL and WILSON, Circuit Judges. PER CURIAM: Byron Keith Thomas, a federal prisoner convicted of two crack cocaine offenses and a firearm offense, appeals the denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction. After review, we affirm.1 Under § 3582(c)(2), a district court has the authority to modify a defendant s term of imprisonment if the defendant s sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o). 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). However, if the retroactively applicable amendment to the guidelines reduce[d] a defendant s base offense level, but does not alter the sentencing range upon which his or her sentence was based, § 3582(c)(2) does not authorize a reduction in sentence. United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008); see also U.S.S.G. § 1B1.10(a)(2)(B). A sentence reduction is not authorized if the amendment does not lower a defendant s applicable guidelines range because of the operation of another guideline or statutory provision. U.S.S.G. § 1B1.10 cmt. n.1(A). Thus, when defendant s applicable guidelines range is determined by his status as an armed career criminal, pursuant to U.S.S.G. § 4B1.4, and not by the amount of crack 1 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). 2 cocaine involved in his offense, pursuant to U.S.S.G. § 2D1.1(c), the defendant is not eligible for § 3582(c)(2) relief based on recent amendments to the base offense levels in § 2D1.1(c) for crack cocaine offenses. See, e.g., United States v. Thomas, 545 F.3d 1300, 1301-02 (11th Cir. 2008) (involving § 3582(c)(2) motion based on Amendment 706). Here, the district court did not err in denying Thomas s § 3582(c)(2) motion. Thomas s motion was based on Amendment 750, which changed the drug quantity tables in U.S.S.G. § 2D1.1(c) to conform to the Fair Sentencing Act of 2010. See U.S.S.G. app. C, amends. 750, 759 (making Amendment 750 retroactive); U.S.S.G. § 1B1.10(c) (listing Amendment 750 as an amendment for which a defendant may file a § 3582(c)(2) motion). Because Thomas was designated an armed career criminal at his original sentencing, his offense level was based on U.S.S.G. § 4B1.4, not on the drug quantity tables in U.S.S.G. § 2D1.1(c). See Thomas, 545 F.3d at 1301.2 Thus, Amendment 750 had no effect on Thomas s ultimate sentencing range. 2 Thomas involved a prior § 3582(c)(2) motion filed by the same defendant, Byron Keith Thomas, but brought pursuant to Amendment 706, a 2007 amendment that lowered the offense levels in U.S.S.G. § 2D1.1(c) for crack cocaine offenses. In Thomas, we affirmed the district court s denial of Thomas s § 3582(c)(2) motion because Thomas was sentenced as an armed career criminal under U.S.S.G. § 4B1.4. 545 F.3d at 1301. Thomas concedes that our earlier Thomas opinion controls, but states that he brings his challenge to preserve it for possible future appeals. 3 We find no merit to Thomas s argument that he is eligible for § 3582(c)(2) relief because U.S.S.G. § 4B1.4 s armed career criminal enhancement applied only to his firearm conviction (Count 1) and not to his two crack cocaine convictions (Counts 2 and 3). At sentencing, the district court grouped all three counts for purposes of calculating Thomas s offense level, pursuant to U.S.S.G. § 3D1.2(c). The court then determined that the applicable offense level was 34, pursuant to U.S.S.G. § 4B1.4(b)(3)(A). Thus, Thomas s offense level for all three counts was based on § 4B1.4(b)(3)(A), which was not changed by Amendment 750. For these reasons, the district court correctly concluded that Thomas was ineligible for a § 3582(c)(2) sentence reduction. AFFIRMED. 4

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