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finding district court could not re-examine defendant's status as an armed career criminal because Amendment 599 did not apply to USSG § 4B1.4
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No. 09-15600 Non-Argument Calendar.
July 12, 2010.
David Slaughter, Coleman, FL, pro se.
Anne R. Schultz, Harriett R. Galvin, U.S. Attorney's Office, Miami, FL, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 96-00299-CR-ASG.
Before BLACK, BARKETT and FAY, Circuit Judges.
David Slaughter, pro se, appeals from the district court's grant of his § 3582(c)(2) motion for reduction of sentence based on Amendment 599 to the Guidelines. On appeal, Slaughter asserts the district court erred, after granting his § 3582(c)(2) motion, in treating him as an armed career criminal under 18 U.S.C. § 924(e) and by running his 18 U.S.C. § 924(c) mandatory 60-month sentence consecutive to his other sentences. After review, we affirm Slaughter's sentence.
We review for abuse of discretion a district court's decision whether to reduce a sentence pursuant to § 3582(c)(2). United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005). However, where the issue is the interpretation of Amendment 599 or the district court's legal conclusions regarding the scope of its authority under the sentencing guidelines, we conduct a de novo review. United States v. Pringle, 350 F.3d 1172, 1178 (11th Cir. 2003).
On October 1, 1996, pursuant to a written plea agreement, Slaughter pled guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (Count 1), robbing a 7-Eleven store by actual and threatened force and violence, 18 U.S.C. § 1951(a) (Count 2), and knowingly using and carrying a firearm during a crime of violence, 18 U.S.C. § 924(c)(1) (Count 3). In December 1996, after determining Slaughter qualified as an armed career criminal, the district court sentenced Slaughter to terms of imprisonment of 188 months on Count 1 and 120 months on Count 2 to run concurrently. The district court also imposed a 60-month imprisonment term on Count 3 to run consecutive to Counts 1 and 2, resulting in a total imprisonment term of 248 months.
In September 2009, Slaughter filed his pro se § 3582(c)(2) motion for reduction of sentence based on Amendment 599 to the Guidelines. The district court summarily granted Slaughter's § 3582(c)(2) motion and reduced Slaughter's total term of imprisonment from 248 to 240 months: 180 months' imprisonment on Count 1 to run concurrent with 112 months' imprisonment on Count 2, and 60 months' imprisonment on Count 3 to run consecutive to Counts 1 and 2.
Amendment 599 did not have the effect of lowering his applicable guideline range because Slaughter was sentenced based on his status as an armed career criminal, pursuant to U.S.S.G. § 4B1.4. See U.S.S.G. § 1B1.10, comment, (n. 1(A)). The government, does not challenge the eight-month reduction in Slaughter's sentence even though Slaughter was not eligible for a § 3582(c)(2) sentence reduction. Moreover, there is no other basis for relief under § 3582(c)(2).
A § 3582(c)(2) proceeding "does not constitute a de novo resentencing" and " all original sentencing determinations remain unchanged with the sole exception of the guideline range that has been amended since the original resentencing." United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (emphasis in original). Thus, the district court lacked authority to consider Slaughter's arguments. See Bravo, 203 F.3d at 781. First, the district court could not reexamine Slaughter's status as an armed career criminal because Amendment 599 did not apply and all the original sentencing determinations remained unchanged. Therefore, the district court did not err in resentencing him to a 15-year statutory minimum, pursuant to § 924(e). Id. Second, the retroactive Amendment 599 had no effect on the § 924(c) sentence per Count 3, as the district court was statutorily required to impose a consecutive 5-year mandatory sentence. See 18 U.S.C. § 924(c)(1)(A)(i); see also U.S.S.G. § 2K2.4, comment, (n. 2(A)) (stating a term of imprisonment under § 924(c) "shall run consecutively to any other term of imprisonment."). Accordingly, we affirm.