US v. Wesley Blakeney, No. 13-7131 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7131 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WESLEY TAVERUS BLAKENEY, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:09-cr-00229-RBH-6) Submitted: September 26, 2013 Decided: September 30, 2013 Before SHEDD, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Wesley Taverus Blakeney, Appellant Pro Se. Sherard, Assistant United States Attorney, Carolina, for Appellee. Carrie Fisher Florence, South Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Wesley Taverus Blakeney appeals the district court s orders denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence and denying his motion to alter or amend judgment. We affirm. Blakeney intent to pled distribute guilty and to conspiracy distribute fifty to possess grams or with more of cocaine base and five kilograms or more of cocaine, in violation of 21 U.S.C. imprisonment Guideline, (2008). § 846 range U.S. (2006). was Blakeney s calculated Sentencing using Guidelines advisory the Guidelines career ( USSG ) Manual offender § 4B1.1 The district court granted a downward departure for substantial assistance to the Government and sentenced Blakeney in 2009 to 140 months imprisonment. Blakeney s sentence reduction Guidelines which 18 based revised U.S.C. on the § 3582(c)(2) Amendment offense 750 motion to levels the sought a Sentencing applicable to certain cocaine base quantities under USSG § 2D1.1(c) and the Fair Sentencing 124 Stat. 2372. Act of 2010 ( FSA ), Pub. L. No. 111-220, The district court determined that Blakeney was not entitled to relief under the FSA because he was sentenced before its effective date and that Amendment 750 had no effect on his Guidelines range because he was sentenced as a career 2 offender. Thus, the district court denied Blakeney s find reversible § 3582(c)(2) motion. After review of the record, we no error in the district court s denial of § 3582(c)(2) relief. Because Blakeney was sentenced in 2009, prior to the effective date of the FSA, the FSA does not apply to his sentence. United States v. Bullard, 645 F.3d 237, 246-49 (4th Cir. 2011). While Blakeney argues that United States v. Munn, 595 F.3d 183, 192 (4th Cir. 2010) (holding that a career offender designation did not bar a § 3582(c)(2) sentence reduction based on Amendment 706 to the Guidelines overrepresentation Guidelines in where departure calculating the sentencing court and relied the the extent on of granted cocaine the an base departure), authorized the district court to reduce his sentence, Blakeney s sentence is distinguishable from the situation in Munn because Blakeney has not demonstrated that the district court relied on the cocaine base Guidelines in calculating the extent of the departure. Further, following the ruling in Munn, the Sentencing Commission clarified that when a defendant is a career offender, the career offender range is the applicable guidelines range for sentencing purposes. United States v. Quarles, 889 F. Supp. 2d 783, 787 (E.D. Va. 2012) (noting that Amendment 759 to the Guidelines effectively abrogates the holding that a 3 defendant, despite being a career offender, is eligible for a [§ 3582(c)(2)] sentence reduction if, after a departure, his sentence falls squarely within the otherwise applicable [cocaine base] [G]uideline[s] range ), aff d, No. 12-7486, 2013 WL 2278777, at *1 (4th Cir. May 24, 2013); see USSG App. C, Amend. 759 (2011). Because we do not conclude that Blakeney s Guidelines range was based on USSG § 2D1.1(c), we cannot agree with Blakeney s contention Guidelines range. that Amendment 750 altered his Accordingly, we affirm the district court s order denying Blakeney s § 3582(c)(2) motion. We further conclude that the district court lacked the authority to revisit its order denying § 3582(c)(2) relief to Blakeney. (4th Cir. United court s 2010). order States v. Goodwyn, Accordingly, denying we Blakeney s 596 also motion F.3d affirm to 233, the alter 235 36 district or amend judgment. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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