US v. John Proctor, No. 10-6055 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6055 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOHN RICHARD PROCTOR, Defendant Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:04cr-00160-RWT-1) Submitted: September 30, 2010 Decided: October 19, 2010 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Vacated and remanded by unpublished per curiam opinion. John Richard Proctor, Appellant Pro Se. Steven M. Dunne, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John Richard Proctor appeals from the district court s order denying his 18 reduction in Sentencing U.S.C. Guidelines. because sentence Proctor § 3582(c) pursuant The qualified as to motion Amendment district a (2006) court career 706 for of determined offender, he a the that, was not eligible for a reduction in sentence based on Amendment 706. Proctor distribute 50 pled grams guilty or more to possession of cocaine with base intent and unlawful possession of firearms and ammunition by a convicted felon. sentencing, Proctor was held accountable for to more than At 1.5 kilograms of crack cocaine, resulting in a base offense level of 38. Although Proctor qualified as a career offender, the offense level determined under U.S. Sentencing Guidelines Manual § 2D1.1(c)(1) Proctor s (2008) offense offender guideline. resulted level was in not a higher changed offense under level, the so career After a two-level reduction for acceptance of responsibility, Proctor s adjusted offense level was 36, his criminal history category VI, and his guideline range 324 to 405 months. The district court sentenced him to 324 months imprisonment. In November 2009, Proctor filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c), based on Amendment 706, which reduced the offense 2 levels applicable to crack cocaine offenses. The district court denied the motion, concluding that, because Proctor was sentenced under the career offender guideline, he cannot benefit from the amendment to the drug quantity table. On appeal from that order, Proctor contends that he was not sentenced as a career offender and therefore is eligible for a reduction under the amendment. We agree. Under § 3582(c)(2), the district court may modify the term of imprisonment of a defendant who has been sentenced . . . based on a sentencing range that has subsequently been lowered, if retroactively context of the amendment applicable. conviction Amendment involved 18 706, crack is listed U.S.C. a in § the 3582(c)(2). defendant cocaine is Guidelines In the offense whose eligible as of for a reduced sentence only if the amendment lowers the defendant s applicable guideline range. See United States v. Lindsey, 556 F.3d 238, 244 (4th Cir.), cert. denied, 130 S. Ct. 182 (2009). Although Proctor was determined to be a career offender, his guideline range was determined with reference to the quantity because the of drugs guideline designation was lower. attributed range to produced him by under the USSG career § 2D1.1 offender See USSG § 4B1.1(b) ( [I]f the offense level for a career offender . . . is greater than the offense level otherwise applicable, the offense level [generated by the 3 career offender designation] shall apply. ). Proctor s offense level determined by reference to the drug quantity was 38; the career offender guideline was 37. Because the offense level determined under the drug tables was higher, that level was used to determine Proctor s sentence. Thus, Proctor s sentence was, in range fact, based on a guideline lowered by Amendment 706. finding that Amendment that was subsequently Accordingly, the district court s 706 did not authorize a sentence reduction for Proctor because of his career offender designation was erroneous. See United States v. McGee, 553 F.3d 225, 230 (2d Cir. 2009) (concluding that a defendant who was designated as a career offender but ultimately explicitly sentenced based on a guideline range calculated by USSG § 2D1.1 was eligible for a sentence reduction). Applying the amended drug quantity table in § 2D1.1 results in an offense level of 36, based on 1.5 kilograms of crack cocaine. level 37, offense of The career offender guideline requires offense unless a higher conviction. level Because is the determined offense based the under level on the career offender guideline is higher than the level determined by reference to the drug quantity, Proctor s offense level would be 37. After responsibility, the his two-level total reduction offense level for would acceptance of be at 35 and, criminal history category VI, his guideline range would be 292 4 to 365 months. Because application of Amendment 706 to Proctor s sentencing results in a sentencing range that is lower than the 324 to 405 month range applicable before Amendment 706, a reduction in Proctor s sentence is authorized under § 3582(c). Because the district court mistakenly concluded that it was not so authorized, we vacate the district court s order and remand to the district court for a determination of whether the reduction should be applied in Proctor s case. * We dispense with oral contentions argument adequately because presented in the the facts and materials legal before the court are and argument would not aid the decisional process. VACATED AND REMANDED * We determine in this opinion that a reduction is authorized; we express no opinion as to whether a reduction in Proctor s sentence is warranted. See United States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010) (providing that determination of whether to grant reduction of sentence authorized under Amendment 706 is within discretion of the district court judge). 5

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