USA v. Torrence Allen

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12692
Non-Argument Calendar
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D.C. Docket No. 0:95-cr-06008-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TORRENCE ALLEN,
a.k.a. Antonio P. Allen,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 30, 2015)
Before TJOFLAT, WILSON and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Torrence Allen, through counsel, appeals the District Court’s denial of his
18 U.S.C. § 3582(c)(2) motion to reduce his sentence, arguing that the court erred
by finding that he was ineligible for a sentence reduction pursuant to Amendment
782 of the Sentencing Guidelines because it did not specifically find that he was a
career offender or assign his offense level pursuant to U.S.S.G. § 4B1.1. He
further argues that this appeal should be vacated and the case remanded with the
instruction that the District Court determine whether he qualifies as a career
offender in light of the Supreme Court decisions of Johnson v. United States, 576
U.S. ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), and Descamps v. United
States, 133 S. Ct. 2276, 186 L Ed. 2d 438 (2013).
Under § 3582(c)(2), a district court may reduce the prison sentence 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.” 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). The
grounds upon which the court may reduce a defendant’s sentence pursuant to
§ 3582(c)(2) are narrow. United States v. Berry, 701 F.3d 374, 376 (11th Cir.
2012). For a defendant to be eligible for such a reduction, the Sentencing
Commission must have amended the guideline at issue, that amendment must have
lowered the defendant’s sentencing range, and the amendment must also be listed
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in U.S.S.G. § 1B1.10(d). See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1) &
comment. (n.1(A)).
“Where a retroactively applicable guideline amendment reduces a
defendant’s base offense level, but does not alter the sentencing range upon which
his or her sentence was based, § 3582(c)(2) does not authorize a reduction in
sentence.” United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008); see also
U.S.S.G. § 1B1.10, comment. (n.1(A)) (noting that a defendant is not eligible for
reduction, even if the amendment is listed in subsection (d), if “the amendment
does not have the effect of lowering the defendant’s applicable guideline range
because of the operation of another guideline or statutory provision (e.g., a
statutory mandatory minimum term of imprisonment)”).
Amendment 782 may serve, when applicable, as the basis for a sentence
reduction. See U.S.S.G. § 1B1.10(d). Effective November 1, 2014, Amendment
782 provides a two-level reduction in base offense levels for most drug quantities
listed in § 2D1.1(c). U.S.S.G. App. C, amend. 782.
Proceedings under § 3582 do not constitute a de novo resentencing and “all
original sentencing determinations remain unchanged.” United States v. Bravo,
203 F.3d 778, 781 (11th Cir. 2000). Section 3582(c)(2) does not grant the court
jurisdiction to consider extraneous resentencing issues, including collateral attacks
on a sentence. See id. at 782.
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The District Court did not err in denying Allen’s § 3582 motion for a
reduction of his sentence. Allen was not eligible for a reduction in sentence
because Amendment 782 did not have the effect of reducing his sentence range
under the Guidelines due to his status as a career offender and the operation of
§ 4B1.1. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1) & comment.
(n.1(A)). Although Allen contends that the court never explicitly concluded that
he qualified as a career offender, the presentence report, which framed the issues to
be resolved at sentencing, expressly stated that Allen qualified as a career offender,
and the court adopted the report’s factual findings and Guidelines applications
without objection. Moreover, his argument is precluded by our appellate decision
that he qualified as a career offender. See United States v. Allen, 333 F. App’x
448, 449 (11th Cir. 2009); see also Anderson, 772 F.3d at 668-69. Finally, his
argument based on the Supreme Court’s decisions in Johnson and Descamps is not
cognizable in a § 3582(c)(2) proceeding. See Bravo, 203 F.3d at 781.
AFFIRMED.
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