Case: 14-12177   Date Filed: 05/13/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12177
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:12-cr-00393-RWS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

LEVORE JONES-TIDWELL,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (May 13, 2015)

Before ED CARNES, Chief Judge, MARCUS, and WILLIAM PRYOR, Circuit
Judges.

PER CURIAM:
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      In 2009, in the Northern District of Illinois, Levore Jones-Tidwell pleaded

guilty to one count of being a felon in possession of a firearm and one count of

possession with intent to distribute a controlled substance. In sentencing him for

those offenses, the district court used the 2008 Sentencing Guidelines Manual to

determine that he had ten criminal history points: seven points based on his prior

convictions, see U.S.S.G. § 4A1.1(a)–(c) (2008); two points because he committed

the offenses of conviction while on parole for another offense, see 

(2008); and one “recency” point because he committed the offenses of conviction

less than two years after he had been released from imprisonment, see 

(2008). Ten criminal history points meant that Jones-Tidwell’s

criminal history category was V. The court sentenced Jones-Tidwell to 42 months

imprisonment and 3 years supervised release. His term of supervised release began

in February 2012, and jurisdiction over his case was transferred to the Northern

District of Georgia in November 2012.

      In 2014, a probation officer petitioned the district court to revoke Jones-

Tidwell’s supervised release. At the revocation hearing, the district court

calculated an advisory guidelines range of 18 to 24 months imprisonment, which it

based on a criminal history category of V — the criminal history category

applicable at the time Jones-Tidwell was originally sentenced — and a violation




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grade of B. See U.S.S.G. § 7B1.4(a). It then sentenced Jones-Tidwell to 18

months imprisonment.

      Jones-Tidwell contends that his sentence is procedurally unreasonable

because the court erroneously calculated his advisory guidelines range based on a

criminal history category of V. He relies on the fact that, in 2010, the Sentencing

Commission prospectively eliminated the consideration of recency points under the

former § 4A1.1(e). See U.S.S.G. App. C, amend. 742 (2010); see also 

(2010) (showing that Amendment 742 does not apply retroactively).

Without that recency point, Jones-Tidwell would have had only nine criminal

history points and a criminal history category of IV when he was originally

sentenced. He argues that, in light of the Sentencing Commission’s elimination of

recency points, the court should have recalculated his criminal history category at

his revocation hearing and sentenced him based on an advisory guidelines range of

12 to 18 months instead of 18 to 24 months. See U.S.S.G. § 7B1.4(a). We review

the procedural reasonableness of Jones-Tidwell’s sentence only for an abuse of

discretion. United States v. Cunningham, 

, 1266 (11th Cir. 2010);

see Gall v. United States, 

, 51, 

, 597 (2007).

      Jones-Tidwell’s argument is meritless. The district court did not recalculate

his criminal history category for purposes of imposing a revocation sentence

because the sentencing guidelines specifically instruct that “[t]he criminal history


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category is not to be recalculated” for purposes of imposing a revocation sentence.

U.S.S.G. § 7B1.4 cmt. n.1. In calculating Jones-Tidwell’s advisory guidelines

range based on a criminal history category of V, the district court did exactly as the

sentencing guidelines say to do: It used the criminal history category “applicable

at the time [Jones-Tidwell] was originally sentenced to a term of supervision.” 

      Facing an uphill battle, Jones-Tidwell acknowledges that “a formalistic

reading of the text of [U.S.S.G.] § 7B1.4 might suggest that the district court need

not entertain subsequent favorable changes in the guidelines affecting the criminal

history score when a defendant is sentenced” for violating the conditions of his

supervised release. Nonetheless, he contends that the district court abused its

discretion in doing exactly as § 7B1.4 says for two reasons. First, he argues that

the district court’s failure to recalculate his criminal history score violated U.S.S.G.

§ 1B1.11’s instruction that the court “use the Guidelines Manual in effect on the

date that the defendant is sentenced,” which in his case was the 2013 Guidelines

Manual. But the court did use the 2013 Guidelines Manual in imposing Jones-

Tidwell’s revocation sentence, and that manual specifically instructs courts not to

recalculate a defendant’s criminal history score. U.S.S.G. § 7B1.4(a) & cmt. n.1

(2013).




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      Second, Jones-Tidwell argues that the court violated 18 U.S.C.

§ 3553(a)(5)’s instruction that the court consider relevant policy statements of the

Sentencing Commission, and he quotes at length the commentary accompanying

the amendment that eliminated recency points. That argument fails too. Although

the district court was free to consider the elimination of recency points under 18

U.S.C. § 3553(a)(5) as a basis for a downward variance, Jones-Tidwell did not

request a downward variance, and, even if he had, the court would not have been

required to grant one. The court did not abuse its discretion in using a criminal

history category of V to calculate Jones-Tidwell’s advisory guidelines range at his

revocation hearing.

      AFFIRMED.




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