US v. Keith Hopkins, No. 08-8157 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8157 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEITH L. HOPKINS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:95-cr-00073-JRS-3) Submitted: March 23, 2009 Decided: April 23, 2009 Before MOTZ, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Keith L. Hopkins, Appellant Pro Se. Assistant United States Attorney, Appellee. Gurney Wingate Grant, II, Richmond, Virginia, for Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Keith L. Hopkins appeals the district court s order denying his motion for § 3582(c)(2) (2006). was not entitled sentencing Hopkins Our to the benefit because review qualified of sentence, 18 U.S.C. The district court concluded that Hopkins guidelines offender. reduction as of he of the a was record career Amendment sentenced reveals offender, 706 as of a that, U.S. the career although Sentencing Guidelines Manual § 4B1.1 (1995), he was not sentenced based on this status. Nonetheless, application of Amendment 706 would not have the effect of lowering Hopkins guideline range. accordingly affirm. 519 (4th Cir. We See United States v. Smith, 395 F.3d 516, 2005) (holding we may affirm on any grounds apparent from the record ). I A 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 the amendment applicable. Guidelines is listed in the guidelines as retroactively 18 U.S.C. § 3582(c)(2); see also U.S. Sentencing Manual § 1B1.10, p.s. (2008). However, [a] reduction in the defendant s term of imprisonment is not . . . authorized under . . . § 3582(c)(2) if . . . [the amendment] 2 does not have the effect of lowering the defendant s applicable guideline range. USSG § 1B1.10(a)(2)(B), p.s. Amendment 706, the 2007 amendment to USSG § 2D1.1 that lowered the base offense levels for most retroactively. offenses involving crack cocaine, applies USSG § 1B1.10(c), p.s. II Hopkins was held responsible for ninety-eight grams of cocaine base and 447 grams equivalency of 2407 kilograms. of heroin, for a marijuana This resulted in a base offense level of 32 (at least 1000 kg but less than 3000 kg marijuana). See USSG § 2D1.1(c)(4). Two levels were added for each of the following: Hopkins role in the offense; his possession of a firearm; and level was 38. his obstruction of justice. His total offense As a career offender, Hopkins was in criminal history category VI, see USSG § 4B1.1; however, with seventeen criminal history independently of points, his Hopkins career qualified offender for status. category His VI advisory guideline range was 360 months-life in prison. Although Hopkins qualified as a career offender, the above calculations, rather than the table at USSG § 4B1.1, were used to determine his guideline range because his total offense level from the table would have been 37 less than the offense level above. See USSG § 4B1.1 ( If the offense level for a 3 career criminal from the table * below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. ). Application of Amendment 706 would not change Hopkins advisory guideline range of 360 months-life. Hopkins was responsible for a marijuana equivalency of 2407 kilograms, which continues to correspond to base offense level 32. § 2D1.1(c)(4) (2008). base offense See USSG Under Amendment 706, this is reduced to level 30. USSG See § 2D1.1, comment. (n.10(D) (i-ii)) (reduce base offense level by two levels if offense involves cocaine base and another controlled substance). With the three two-level adjustments described above, Hopkins total offense level is 36. Under USSG § 4B1.1(b), the offense level guideline s set forth in that table must be used. Therefore, under Amendment 706, Hopkins total offense level is 37, his criminal history category is VI, and his advisory guideline range remains 360 months-life in prison. Because Amendment 706 does not have the effect of lowering the defendant s applicable guideline range , USSG § 1B1.10(a)(2)(B), p.s., Hopkins is ineligible for a sentence reduction under § 3582(c)(2). We * accordingly affirm. We According to the table, because Hopkins offense statutory maximum was life in prison, see 21 U.S.C. § 841(b)(1)(A), his offense level as a career offender was 37. See USSG § 4B1.1. 4 dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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