USA v. Arthur Jones

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12935
Non-Argument Calendar
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D.C. Docket No. 1:06-cr-20044-MGC-11
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR JONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 13, 2016)
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Arthur Jones appeals the denial of his motion to reduce his sentence. A
court can reduce a sentence if it was based on a sentencing range that has since
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been lowered by the Sentencing Commission, so long as the reduction “is
consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). Jones’s motion is based on Amendment
782, which the Sentencing Commission’s policy statement on sentence reductions
says applies retroactively. See USSG § 1B1.10(a)(1). However, that statement
also says a reduction “is not consistent with this policy statement and therefore is
not authorized” if Amendment 782 “does not have the effect of lowering the
defendant’s applicable guideline range.” Id. § 1B1.10(a)(2).
Amendment 782 “does not have the effect of lowering” Jones’s guideline
range. Jones’s presentence investigation report (PSI) calculated a base offense
level of 26 based on USSG § 2D1.1. After Amendment 782, Jones’s base offense
level under § 2D1.1 would be 24. Jones wasn’t sentenced based on § 2D1.1
though. Rather, he was sentenced using USSG § 4B1.1 (the career offender
guideline). The PSI calculated Jones’s offense level at 34 based on § 4B1.1,
lowered to 31 because Jones accepted responsibility for his crime. Jones didn’t
object to any of the facts in the PSI or to his career offender status, so the court
sentenced him at offense level of 31. A failure to object to facts in the PSI admits
those facts for sentencing purposes. See United States v. Beckles, 565 F.3d 832,
843 (11th Cir. 2009). Though Amendment 782 would reduce Jones’s base offense
level under USSG § 2D1.1, his offense level would still be 31 because of USSG
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§ 4B1.1. This means Amendment 782 wouldn’t lower his sentence, so the
Sentencing Commission’s policy statement in USSG § 1B1.10(a)(2)(B) bars a
reduction. See United States v. Lawson, 686 F.3d 1317, 1321 (11th Cir. 2012) (per
curiam) (holding that § 3582(c)(2) bars a sentence reduction when defendants
“were assigned a base offense level under” USSG § 2D1.1 but were then
“ultimately assigned a [higher] total offense level and guideline range” under
USSG § 4B1.1).
Jones claims that his plea agreement said the government wouldn’t argue for
career-offender status, so this status shouldn’t be assumed in deciding his § 3582
motion. But Jones’s plea agreement never mentions the career offender guideline.
All the plea agreement said on this topic is that the government would ask for a
sentence at the low end of the guideline range. This doesn’t change the fact that
Amendment 782 “does not have the effect of lowering the defendant’s applicable
guideline range” here. USSG § 1B1.10(a)(2)(B). The district court correctly
denied Jones’s motion.
AFFIRMED.
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