Filed: Jul. 14, 2009
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 08-12924 ELEVENTH CIRCUIT JULY 14, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 02-80123-CR-DTKH UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OMARI SHARIFA COLEY, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (July 14, 2009) Before CARNES, BARKETT and PRYOR, Circuit Judges. PER CURIAM: Omari Sh
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 08-12924 ELEVENTH CIRCUIT JULY 14, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 02-80123-CR-DTKH UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OMARI SHARIFA COLEY, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (July 14, 2009) Before CARNES, BARKETT and PRYOR, Circuit Judges. PER CURIAM: Omari Sha..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12924 ELEVENTH CIRCUIT
JULY 14, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 02-80123-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMARI SHARIFA COLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 14, 2009)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Omari Sharifa Coley appeals the district court’s denial of his 18 U.S.C. §
3582 motion for a reduced sentence.
I.
In 2003 Coley pleaded guilty to possessing crack cocaine with intent to
distribute it, in violation of 21 U.S.C. § 841, and carrying a firearm during a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). Coley was designated
as a career offender under § 4B1.1 based on prior convictions for selling cocaine
and carrying a concealed firearm.
Coley’s initial offense level was 23 based on the amount of crack cocaine he
possessed, and he had a criminal history category of III. But because of his career
offender status, Coley’s offense level increased to 31 and his criminal history
category to VI. Accordingly, Coley faced a prospective sentence of 188 to 235
months imprisonment on the crack cocaine count, plus a mandatory consecutive
minimum of 60 months on the firearm count. To reward Coley for testifying
against other defendants, the government filed a § 5K1.1 motion seeking a
downward departure in his sentence. That 5K1.1 motion freed the court from the
mandatory sentencing guidelines pre-Booker. See U.S.S.G. § 5K1.1 (“Upon
motion of the government stating that the defendant has provided substantial
assistance . . . the court may depart from the guidelines.”). At Coley’s sentencing
hearing, the district court asked defense counsel what Coley’s guidelines sentence
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would have been if not for the career offender status. Counsel answered that the
crack cocaine count would carry a guidelines range of 78 to 97 months under the
original calculation, based on the amount of crack cocaine involved.1 The court
eventually sentenced Coley to 84 months on the crack cocaine count, plus 36
consecutive months for the firearm count.
Amendment 706 to the sentencing guidelines reduced the offense levels that
apply based on the quantity of crack cocaine attributed to a defendant. After
Amendment 713 made that change retroactive, Coley filed a § 3582(c)(2) motion
seeking a reduction in his sentence. The district court denied that motion because
Coley was sentenced as a career offender under U.S.S.G. § 4B1.1, meaning that
Amendment 706 did not lower his applicable guidelines range. Accordingly, the
court found that Coley’s motion was outside the proper scope of § 3582(c)(2).
II.
“We review de novo a district court’s conclusions about the scope of its
legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d
983, 984 (11th Cir. 2008).
Coley contends that the district court erred in determining that he was not
1
Counsel miscalculated slightly by forgetting the three-level reduction for acceptance of
responsibility. The right answer would have been 57 to 71 months, not including the mandatory
consecutive 60 months for the firearm charge.
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eligible for § 3582(c)(2) relief because (1) he no longer qualifies as a career
offender after United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), and (2) his
sentence was based, at least in part, on his initial guideline range calculated under
U.S.S.G. § 2D1.1—the drug quantity guideline altered by Amendments 706 and
713.
Coley’s first argument is not cognizable under § 3582. His assertion that he
is no longer a career offender after Begay and Archer asks us to revisit the
application of § 4B1.1, not the crack cocaine quantity guideline at § 2D1.1.
Section 4B1.1, unlike § 2D1.1, has not been amended since Coley's sentencing,
and § 3582 proceedings do not encompass challenges to the application of
guidelines that have not been retroactively amended. See U.S.S.G. § 1B1.10(b)
(“the court shall substitute only [retroactively amended guidelines] . . . that were
applied when the defendant was sentenced and shall leave all other guideline
application decisions unaffected.”); United States v. Bravo, 203 F.3d 778, 781
(11th Cir. 2000) (“[W]e have held that all original sentencing determinations
remain unchanged with the sole exception of the guideline range that has been
amended since the original sentencing.”);
id. at 782 (stating that “extraneous
resentencing issues” are not cognizable in § 3582 motions, and must be brought as
§ 2255 collateral attacks on the sentence). Coley has brought a separate § 2255
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motion raising his Begay and Archer issue, and it is addressed in Coley v. United
States, 08-15962.
Coley’s second argument is that his actual sentence was based, in part, on
the application of the crack cocaine quantity guideline instead of the career
offender one. Section 3582(c)(2) states that:
[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . . the court may reduce the term of
imprisonment . . . if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
Coley appears to concede that ordinarily a prisoner whose guidelines range was set
by the career offender guideline rather than the crack cocaine quantity guideline is
not eligible for a sentence reduction under § 3582(c)(2). See United States v.
Moore, 541 F.3d 1323, 1330 (11th Cir. 2008) (holding that “although Amendment
706 would reduce the base offense levels applicable to [these] defendants, it would
not affect their guideline ranges because they were sentenced as career offenders
under § 4B1.1” and thus denying relief under § 3582(c)(2)).
Coley argues, however, that although his final guideline range was set by the
career offender guideline, his actual sentence was “based on a sentencing range
that has subsequently been lowered” under § 3582(c)(2). He points out that the
district court was freed from the constraints of the career offender guideline by the
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government’s § 5K1.1 motion for a downward departure. And in searching for
guidance about how much to depart in Coley’s case, the court asked his counsel
what his (crack cocaine) guidelines range would have been had the career offender
provision not applied. The court then sentenced Coley within that range on the
crack cocaine count.2 Coley’s theory, which is plausible, is that the district court
did “base” its actual sentence on what it believed his crack cocaine guideline was
at the time. That guideline has since been reduced two levels by Amendments 706
and 713, so Coley argues that he should be allowed a sentence reduction under §
3582(c)(2).
Coley correctly notes that Moore does not control. In Moore, one of the
defendants was sentenced under the career offender guideline range but received a
§ 5K1.1 downward departure, just like Coley. 541 F.3d at 1330. However, in
Moore there was no correlation between the actual sentence received and guideline
range calculated before adding on the defendant’s career offender status; the
district court in Moore apparently never asked what the original range had been.
We pointed out that there was no “indication that the court based Moore’s sentence
on the guideline range that would have applied absent the career offender
designation. Thus . . . there is no basis for concluding that the reduction of Moore’s
2
More specifically, within the range that counsel told the court would have applied to
Coley; counsel was slightly off. See supra note 1.
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base offense level lowered the sentencing range relied upon by the district court in
determining his sentence.” Id. at 1330. Moore did not say, and could not have
held, what would have happened if the district court in that case had relied on the
crack cocaine quantity guideline in deciding how much to reduce Moore’s
sentence.
But that question is answered by another requirement embedded in § 3582—
one that sinks Coley’s argument. Section 3582 requires that any application of that
statute be “consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). See United States v. Williams, 549 F.3d
1337, 1341 (11th Cir. 2008) (stating that “we must treat such commentary [in the
policy statements] as binding”).
The applicable policy statement is U.S.S.G. § 1B1.10, which states: “A
reduction in the defendant’s term of imprisonment is not consistent with this policy
statement and therefore is not authorized under 18 U.S.C. 3582(c)(2) if— . . . (B)
[a retroactive amendment]. . . does not have the effect of lowering the defendant's
applicable guideline range.” U.S.S.G. § 1B1.10(a)(2). Thus, the policy statement
requires Coley to show that his actual applicable guideline range was lowered by
Amendments 706 and 713. It is not enough for Coley to have made a plausible
argument that the district court, departing downward from his applicable guideline
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range, used Coley’s crack-cocaine-quantity-based guideline range as a suggestion
to inform its discretion in fashioning a sentence for Coley.
The simple fact is that Coley’s applicable guidelines range was 188 to 235
months, and it was based on § 4B1.1— the career offender guideline. That range
was not changed at all by Amendments 706 or 713, which changed only § 2D1.1—
the crack cocaine quantity guideline. See generally Williams, 549 F.3d at 1342
(observing that because the defendant “was subject to a statutory mandatory
minimum that replaced his original sentencing guideline range, he was not
sentenced according to the base offense level in § 2D1.1, even taking into account
the § 5K1.1 downward departure” and so he could not get a § 3582(c)(2) sentence
reduction based on the policy statements). Accordingly, the district court properly
denied Coley’s § 3582(c)(2) motion.
AFFIRMED.
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