USA v. Jimmy Lee Tucker, Jr., No. 12-15365 (11th Cir. 2013)
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Case: 12-15365 Date Filed: 04/05/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-15365 Non-Argument Calendar ________________________ D.C. Docket No. 1:09-cr-20673-DLG-25 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JIMMY LEE TUCKER, JR., a.k.a. Bob, a.k.a. VT, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (April 5, 2013) Before BARKETT, MARTIN and FAY, Circuit Judges. PER CURIAM: Case: 12-15365 Date Filed: 04/05/2013 Page: 2 of 3 Jimmy Lee Tucker, Jr., proceeding pro se, appeals the district court s denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to the Sentencing Guidelines. The district court determined that Tucker was not entitled to a sentence reduction because he had been sentenced as a career offender under U.S.S.G. § 4B1.1. We review de novo a district court s conclusion that a defendant is not eligible for § 3582(c)(2) relief. United States v. Glover, 686 F.3d 1203, 1206 (11th Cir. 2012). A district court may modify a term of imprisonment if a defendant was sentenced based on a sentencing range that has subsequently been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Amendment 750 to the Sentencing Guidelines retroactively lowered the sentencing range applicable to crack cocaine offenses by revising the crack cocaine quantity tables listed in U.S.S.G. § 2D1.1(c). See U.S.S.G. App. C, Amend. 750. The record here shows that Tucker was sentenced as a career offender under § 4B1.1. Tucker s base offense level under § 2D1.1 was 24 and his criminal history category was VI. Because he qualified as a career offender under § 4B1.1, his base offense level increased to 32. Tucker received a 3-point offense level reduction for acceptance of responsibility, yielding a final offense level of 29. Thus, his guideline sentencing range was 151 to 188 months. At sentencing, the district court adopted the pre-sentence report s calculations, including Tucker s 2 Case: 12-15365 Date Filed: 04/05/2013 Page: 3 of 3 designation as a career offender, but granted a downward variance because of the small amount of drugs involved in the offense. Tucker was sentenced to 139 months of imprisonment. After sentencing, the government filed a motion to reduce the sentence under Fed. R. Crim. P. 35 based on Tucker s substantial assistance. The district court granted the motion and reduced Tucker s sentence to 83 months. Because Tucker s sentence was based on the sentencing range determined under § 4B1.1, Amendment 750 had no effect on the applicable sentencing range and Tucker is ineligible for § 3582(c)(2) relief. See United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012). The district court s grant of a downward variance and sentence reduction do not alter this conclusion. There is no indication that the district court rejected Tucker s classification as a career offender or that it based Tucker s sentence on the guideline range that would have applied absent the career offender designation. See United States v. Moore, 541 F.3d 1323, 1329-30 (11th Cir. 2008). Instead, the district court simply granted a variance from the career offender guideline range based on the circumstances of the offense and then further reduced the sentence based on Tucker s substantial assistance. Accordingly, we affirm the district court s denial of Tucker s § 3582(c)(2) motion. AFFIRMED. 3
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