Summary Calendar UNITED STATES OF AMERICA v. Anthony Leroy Anderson

See U.S.S.G. § 2D1.1.1
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-41314
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ANTHONY LEROY ANDERSON,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:
Anthony Leroy Anderson appeals the district court’s denial of his motion
to reduce his sentence under 18 U.S.C. § 3582(c). We affirm.
I.
Anderson pleaded guilty to conspiracy to possess with intent to distribute
five or more grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B)(iii), and 846. As a sentencing default, district courts use § 2D1.1 of
the Sentencing Guidelines to set the base offense level for drug criminals. The1
United States Court of Appeals
Fifth Circuit
F I L E D
December 21, 2009
Charles R. Fulbruge III
Clerk

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No. 08-41314
See U.S.S.G. § 2D1.1(c).2
“A defendant is a career offender if (1) the defendant was at least eighteen3
years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence
or a controlled substance offense; and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1(a).
See U.S.S.G. § 4B1.1(b).4
2
greater the quantity of drugs, the higher the base level – and, in turn, the2
longer the term of imprisonment.
Career offenders, though, may instead fall under § 4B1.1 of the Guidelines,
which can impose a lengthier sentence on recidivists. Specifically, if the base3
level calculated under the career offender provision exceeds the base level
calculated under the general drug crimes provision, then the career offender
base level prevails. The base level calculation under the career offender
provision does not depend on the amount of drugs involved in the offense.
Rather, the base offense level is moored to the statutory maximum penalty of the
underlying crime.4
In 2003, the district court sentenced Anderson as a career offender under
§ 4B1.1 to 147 months in prison. The court had calculated Anderson’s base level
under the general drug guideline § 2D1.1 as 28 – and his base level under the
career offender guideline § 4B1.1 as 34. Because the career offender base level
exceeded the general base level, the career offender sentencing range governed.
Five years later, Anderson filed a motion under 18 U.S.C. § 3582(c)(2)
seeking to reduce his sentence – on the idea that a retroactive sentencing
amendment applied to his conviction involving crack cocaine. Specifically, the
United States Sentencing Commission – though Amendment 706 – reduced the

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No. 08-41314
“The Sentencing Commission amended the guidelines applicable to5
cocaine base (i.e., crack cocaine) offenses by raising the quantity required to
trigger each base offense level, effectively lowering each respective sentencing
range. . . . That amendment was then made retroactive by a subsequent
amendment to the guidelines.” United States v. Evans, 2009 WL 3647042, *1
n.1; 2009 U.S. App. LEXIS 24399, *2 n.1 (5th Cir. 2009).
See United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997) (“[W]e note6
that the decision whether to reduce a sentence is left to the sound discretion of
the trial court. Thus, we review for abuse of discretion only.”).
U.S.S.G. § 1B1.10(a)(1).7
3
applicable base levels under § 2D1.1 for crack cocaine offenses. Anderson5
argued that his base level under § 2D1.1 would have been 26 – not 28. He
conceded, however, that his base level under § 4B1.1 would not change. The
district court summarily denied Anderson’s motion.
II.
A.
Anderson urges that the district court abused its discretion by not
reducing his sentence. He points to U.S.S.G. § 1B1.10, which states: “In a case6
in which a defendant is serving a term of imprisonment, and the guideline range
applicable to that defendant has subsequently been lowered as a result of an
amendment to the Guidelines Manual . . . the court may reduce the defendant’s
term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).” Because7
Amendment 706 lowered the guideline range applicable to crack cocaine
offenders – and because Anderson pleaded guilty to a crack cocaine violation –
he contends that he deserves a reduced sentence.
The district court, however, had not during sentencing applied the crack
cocaine guideline range to Anderson. Instead, the court had calculated
Anderson’s guideline range pursuant to his career offender status. The sentence
did not derive from the amount of crack cocaine involved in his offense. The

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No. 08-41314
United States v. Jones, 328 F. App’x 916, 918 (5th Cir. 2009)8
(unpublished).
See United States v. Tatum, 2009 WL 3241526; 2009 U.S. App. LEXIS9
22381 (5th Cir. 2009) (unpublished); United States v. Jackson, 335 F. App’x 508
(5th Cir. 2009) (unpublished); United States v. Medlock, 335 F. App’x 430 (5th
Cir. 2009) (unpublished); United States v. Haynes, 335 F. App’x 420 (5th Cir.
2009) (unpublished); United States v. Bradford, 334 F. App’x 626 (5th Cir. 2009)
(unpublished); United States v. Bolden, 2009 WL 577719; 2009 U.S. App. LEXIS
4580 (5th Cir. 2009) (unpublished); United States v. Caldwell, 325 F. App’x 383
(5th Cir. 2009) (unpublished); United States v. Ingram, 325 F. App’x 382 (5th
Cir. 2009) (unpublished); United States v. Jones, 328 F. App’x 916 (5th Cir. 2009)
(unpublished); United States v. Woods, 321 F. App’x 344 (5th Cir. 2009)
(unpublished).
U.S.S.G. § 1B1.10(b)(2)(A).10
See United States v. Booker, 543 U.S. 220 (2005). Anderson – at least11
tangentially – raised his Booker argument in the district court. See Docket No.
37 at 11 n.7.
4
district court, consequently, did not abuse its discretion in denying Anderson’s
motion for resentencing, because he “was not sentenced based on a sentencing
range that was subsequently lowered by the Sentencing Commission.”8
The crack cocaine guideline amendments do not apply to prisoners
sentenced as career offenders. We note that – although this court has never
published a binding decision on the issue – this year we have uniformly rejected
arguments identical to Anderson’s in at least 10 persuasive unpublished
decisions. The claim has no merit in either law or logic.9
B.
Anderson quizzically asserts – in the alternative – that the district court
erred by treating U.S.S.G. § 1B1.10 as mandatory. Section 1B1.10 states that
“the court shall not reduce the . . . term of imprisonment . . . to a term that is less
than the minimum of the amended guideline range.” He claims that this10
provision violates Booker, which held the sentencing guidelines to be advisory.11

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No. 08-41314
United States v. Evans, 2009 WL 3647042, *1; 2009 U.S. App. LEXIS12
24399, *4 (5th Cir. 2009) (citing United States v. Doublin, 572 F.3d 235, 238 (5th
Cir. 2009)) (internal quotation marks and citations omitted).
See United States v. Evans, 2009 WL 3647042, *2; 2009 U.S. App. LEXIS13
24399, *5-6 (5th Cir. 2009).
The Public Defender’s briefs in Evans and in this case virtually mimic14
each other. We do not mention this in an effort to criticize, as the lawyers could
not know which case the court would first resolve. Instead, we mean only to
illustrate that we have already answered the precise question that Anderson
5
It is unclear, as a threshold matter, that the district court relied on §
1B1.10, because no “amended guideline range” applies to Anderson. Regardless,
Anderson’s “argument is foreclosed by United States v. Doublin . . . in which we
joined the nearly unanimous position of our sister circuits in holding that Booker
does not alter the mandatory character of . . . § 1B1.10’s limitations on sentence
reductions. Thus, a district court cannot reduce a sentence below the minimum
provided in the amended guideline range.”12
C.
Lastly, Anderson urges that U.S.S.G. § 1B1.10’s mandatory nature violates
the separation of powers doctrine. Anderson did not present this argument to
the district court, but tries to escape plain error review by arguing that he never
had a chance to object to the district court’s summary denial.
Again, it is unclear how § 1B1.10 bears on this case in which no “amended
guideline range” applies to Anderson. Notwithstanding this threshold
impediment, circuit precedent would foreclose Anderson’s entire argument –
including that plain error should not attach. In United States v. Evans, the
prisoner made the exact same separation of powers sentencing appeal as
Anderson does here. The prisoner in Evans, too, tried to avoid plain error13
review by suggesting that he had had no opportunity to object to the district
court’s summary denial of his § 3582(c)(2) motion. This court found the14

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No. 08-41314
raises.
See United States v. Evans, 2009 WL 3647042, *2-3; 2009 U.S. App.15
LEXIS 24399, *7-8 (5th Cir. 2009) (internal citations and quotation marks
omitted).
6
prisoner’s contentions wanting; reviewed for plain error; and found none.
Anderson presents the same case:
The mandatory nature of § 1B1.10 was an issue that [Anderson]
could have anticipated. . . . [He] could have mentioned separation
of powers in his § 3582(c)(2) motion brief, but, for whatever reason,
he chose not to. And because he did not present it to the district
court, we review it for plain error. . . . Given the lack of precedent
suggesting a separation-of-powers problem with . . . § 1B1.10, the
alleged error was not obvious . . . .15
III.
AFFIRMED.

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