USA v. Joseph Sampson Auguste

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12863
Non-Argument Calendar
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D.C. Docket No. 1:00-cr-00485-UU-4
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
JOSEPH SAMPSON AUGUSTE,
Defendant–Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 9, 2016)
Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Joseph Sampson Auguste, proceeding with counsel, appeals the district
court’s denial of his motion for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) and Amendment 782 to the Sentencing Guidelines. After careful
review, we affirm.
I. BACKGROUND
In 2001, a jury found Defendant guilty of conspiring to possess with intent
to distribute 5 kilograms or more of cocaine (“Count One”), and conspiring to use
and carry a firearm during a drug trafficking offense (“Count Two”), in violation
21 U.S.C. § 846 and 18 U.S.C. § 924(o).
In anticipation of sentencing, the probation officer prepared a Presentence
Investigation Report (“PSR”). The PSR assigned Defendant a base offense level of
38 pursuant to U.S.S.G. § 2D1.1(a)(3), (c)(1) because the offense involved more
than 150 kilograms of cocaine. Because a firearm was possessed during the drug
trafficking offense, Defendant also received a two-level increase under
§ 2D1.1(b)(1), which resulted in an adjusted offense level of 40. The PSR
indicated that Defendant was a career offender under U.S.S.G. § 4B1.1 because he
had two prior convictions for crimes of violence. Because the statutory maximum
for Defendant’s present offense was life imprisonment, the PSR stated that
Defendant’s guideline offense level would be a minimum of 37 under the career
offender provision. However, Defendant’s total offense level remained at 40, as
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his otherwise applicable offense level exceeded the offense level provided under
the career offender provision. See U.S.S.G. § 4B1.1(b). Due to his status as a
career offender, the PSR assigned Defendant a criminal history category of VI.
Based on a total offense level of 40 and a criminal history category of VI,
Defendant’s guideline range was 360 months to life.
At sentencing, the district court held Defendant accountable for 5 kilograms
of cocaine, and consequently assigned Defendant a base offense level of 32. The
district court adopted all other guidelines calculations from the PSR and applied
the career offender provision, which increased Defendant’s total offense level to
37. Based on a total offense level of 37 and a criminal history category of VI, the
resulting guideline range was 360 months to life. The district court sentenced
Defendant to 360 months’ imprisonment as to Count One, and 240 months’
imprisonment as to Count Two, to be served concurrently. We affirmed
Defendant’s convictions and sentences on appeal. United States v. Charles, 313
F.3d 1278, 1280 (11th Cir. 2002).
In February 2015, Defendant filed a pro se motion for a reduction of
sentence based on § 3582(c)(2) and Amendment 782. The district court denied
Defendant’s motion, concluding that, because Defendant was sentenced as a career
offender, he was not eligible for a sentence reduction.
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Through counsel, Defendant now appeals from that decision, arguing that
his classification as a career offender should not bar him from relief under
§ 3582(c)(2) because his base offense level, if not his total offense level, was based
on the Drug Quantity Table located at U.S.S.G. § 2D1.1. He also argues for the
first time on appeal that the policy statement set forth in U.S.S.G. § 1B1.10
violates the Separation of Powers Clause.
II. DISCUSSION
We review de novo a district court’s legal conclusions on the scope of its
authority under § 3582(c)(2). United States v. Jones, 548 F.3d 1366, 1368 (11th
Cir. 2008). Under § 3582(c)(2), a district court may modify a term of
imprisonment when the original sentencing range has subsequently been lowered
as a result of an amendment to the Guidelines by the Sentencing Commission. 18
U.S.C. § 3582(c)(2). To be eligible for a sentencing reduction under § 3582(c)(2),
a defendant must identify an amendment to the Sentencing Guidelines that is listed
in U.S.S.G. § 1B1.10(d). U.S.S.G. § 1B1.10(a)(1). A defendant is not eligible for
a sentence reduction if a guideline amendment “does not have the effect of
lowering the defendant’s applicable guideline range.” Id. § 1B1.10(a)(2)(B); id.
§ 1B1.10, comment. (n.1(A)).
Amendment 782 reduced the base offense level for most drug offenses by
two levels. See id. § 1B1.10(d); U.S.S.G. App. C., Amend. 782 (2014).
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Amendment 782 did not make any changes to U.S.S.G. § 4B1.1, the career
offender guideline. See U.S.S.G. App. C., Amend. 782.
When a defendant is sentenced as a career offender, his base offense level is
determined under § 4B1.1, not under the Drug Quantity Table set forth in
§ 2D1.1(c). U.S.S.G. § 4B1.1; United States v. Moore, 541 F.3d 1323, 1327 (11th
Cir. 2008). In Moore, we considered whether defendants who were sentenced as
career offenders under § 4B1.1 were eligible for § 3582(c)(2) relief in light of
Amendment 706, which lowered the 2D1.1(c) base offense levels for certain
quantities of crack cocaine. 541 F.3d at 1325. We held that the defendants did not
qualify for § 3582(c)(2) relief because Amendment 706 had no effect on their
applicable guideline ranges, which had been calculated under § 4B1.1. Id. at
1327–30; see also United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012)
(concluding that Moore remained binding precedent and that Amendment 750 did
not lower the guideline range for career offenders).
Here, the district court did not err when it concluded that Defendant was not
eligible for a sentence reduction. Defendant’s total offense level and applicable
guideline range were not based on the drug quantity offense levels in § 2D1.1, but
instead were based on the career offender level in § 4B1.1. Because Defendant’s
guideline range was not based on the drug quantity guidelines, Amendment 782
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did not lower the sentencing range upon which Defendant’s sentence was based.
See Lawson, 686 F.3d at 1321; Moore, 541 F.3d at 1327–30.
We turn next to Defendant’s argument that our decision in Moore has been
called into doubt by the Supreme Court’s decision in Freeman v. United States,
131 S. Ct. 2685 (2011). In Freeman, a four-justice plurality concluded that
§ 3582(c)(2) relief is available to a defendant sentenced pursuant to a Fed. R. Crim.
P. 11(c)(1)(C) plea agreement that includes an agreed-upon sentence that is
expressly based on a guideline range that was subsequently lowered by the
Sentencing Commission. Freeman, 131 S. Ct. at 2690. In her concurring opinion,
Justice Sotomayor explained that sentences imposed pursuant to a Rule 11(c)(1)(C)
plea agreement are based on the plea agreement itself, and not the applicable
guideline range. Id. at 2696. However, as Defendant properly concedes, his
argument is foreclosed by binding precedent because we have expressly
determined that Freeman did not overrule our decision in Moore. See Lawson, 686
F.3d at 1321. Nor is Freeman applicable to the issue we addressed in Moore—
whether defendants sentenced as career offenders were eligible for a § 3582(c)(2)
sentence reduction. Id.
Finally, Defendant argues for the first time on appeal that the policy
statement in U.S.S.G. § 1B1.10 violates the Separation of Powers doctrine. We
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review sentencing challenges raised for the first time on appeal for plain error.1
United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005). Defendant cannot
demonstrate plain error because he has not cited to, nor have we found, any
published decision holding that § 1B1.10 violates the Separation of Powers Clause.
See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (“[T]here
can be no plain error where there is no precedent from the Supreme Court or this
Court directly resolving [an issue].”). In fact, we have previously rejected similar
separation-of-powers arguments that have challenged § 1B1.10. See United States
v. Maiello, 805 F.3d 992, 1000–01 (11th Cir. 2015) (concluding that § 1B1.10(e),
which imposes a limitation on the effective date of an order granting § 3582(c)(2)
relief, did not violate the Separation of Powers Clause); United States v. Colon,
707 F.3d 1255, 1260–61 (11th Cir. 2013) (rejecting an argument that a post-
Amendment 759 version of § 1B1.10(b) violated the Separation of Powers doctrine
by limiting the district court’s ability to reduce a defendant’s sentence below the
amended guideline range, except in cases where the defendant received a reduction
for substantial assistance). Accordingly, the district court committed no error in
concluding that Defendant was ineligible for a sentence reduction under
§ 3582(c)(2) and Amendment 782.
1 Under plain error review, we will reverse where there is “(1) an error (2) that is plain and
(3) that has affected the defendant’s substantial rights; and . . . (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v. Madden, 733
F.3d 1314, 1322 (11th Cir. 2013).
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AFFIRMED.
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