USA v. Sammy Lee Potts, No. 08-15225 (11th Cir. 2009)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 08-15225 Non-Argument Calendar ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT APRIL 7, 2009 THOMAS K. KAHN CLERK D. C. Docket No. 02-80174-CR-KLR UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SAMMY LEE POTTS, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (April 7, 2009) Before TJOFLAT, BIRCH and DUBINA, Circuit Judges. PER CURIAM: Sammy Lee Potts appeals the district court s denial of his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). Potts was sentenced in September 2003 to 200 months of imprisonment for possession with intent to distribute at least five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Even though he was sentenced as a career offender, Potts contends that he is entitled to a sentence reduction because his base offense level was lowered by Amendment 706 to the Sentencing Guidelines. After careful review, we AFFIRM. We review de novo a district court s legal conclusions about the scope of its authority under § 3582(c)(2). See United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008). We review the denial of a § 3582(c)(2) motion for abuse of discretion. See United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005) (per curiam). A district court has the authority to reduce a sentence based on a guideline imprisonment range that has subsequently been lowered by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2). Amendment 706, effective retroactively as of 3 March 2008, permits a two-level reduction in the base offense levels under U.S.S.G. § 2D1.1(c) for certain crack cocaine offenses. See Moore, 541 F.3d at 1325. Amendment 706 does not affect the guideline ranges of defendants sentenced as career offenders under U.S.S.G. § 4B1.1, however. See 2 id. at 1330. Accordingly, even though Amendment 706 may reduce a defendant s base offense level under § 2D1.1(c), a defendant is not entitled to a sentence reduction if he is sentenced as a career offender under § 4B1.1. See id. Moore controls the outcome of this case. Potts was sentenced as a career offender under § 4B1.1 which yielded an offense level of 34. He was awarded a three-level downward adjustment for timely accepting responsibility and assisting authorities in the investigation or prosecution, resulting in a total offense level of 31. His offense level under the career offender section applied because it was greater than his base offense level of 28 under § 2D1.1. See U.S.S.G. § 4B1.1(b) (providing that if the offense level for a career offender . . . is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply ). Even though Amendment 706 would reduce Potts s base offense level under § 2D1.1 from 28 to 26, his guideline sentencing range would remain the same under the career offender provision. Thus, because Amendment 706 had no effect on Potts s sentencing range, § 3582(c)(2) did not authorize a sentence reduction. See Moore, 541 F.3d at 1330. Potts argues that an exception to Moore applies here. He points to a footnote in United States v. James, 548 F.3d 983, 985 n.2 (11th Cir. 2008) (per curiam), in which we acknowledged that Amendment 706 could apply to the 3 sentence of an armed career criminal where § 2D1.1(c) was applied at the original sentencing for an armed career criminal because it produced the highest offense level among the relevant calculations in § 4B1.4(b). As Potts concedes, he was not sentenced as an armed career criminal. Equally important, his base offense level under § 2D1.1(c) was not applied at his original sentencing because he had a greater offense level under the career offender provision. The exception noted in James is therefore inapplicable. For these reasons, we AFFIRM the district court s denial of Potts s motion for sentence reduction. AFFIRMED. 4
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