US v. John Proctor

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:04-cr-00160-RWT-1. Copies to all parties and the district court/agency. [998448651] [10-6055]

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US v. John Proctor Doc. 0 Case: 10-6055 Document: 14 Date Filed: 10/19/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6055 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOHN RICHARD PROCTOR, Defendant Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:04cr-00160-RWT-1) Submitted: September 30, 2010 Decided: October 19, 2010 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Vacated and remanded by unpublished per curiam opinion. John Richard Proctor, Appellant Pro Se. Steven M. Dunne, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-6055 Document: 14 Date Filed: 10/19/2010 Page: 2 PER CURIAM: John Richard Proctor appeals from the district court's order denying in his 18 U.S.C. 3582(c) to (2006) motion 706 for of a reduction Sentencing because sentence pursuant The as Amendment court the that, not Guidelines. qualified district a career determined he Proctor offender, was eligible for a reduction in sentence based on Amendment 706. Proctor distribute 50 pled guilty or more to of possession cocaine with intent to grams base and unlawful At 1.5 possession of firearms and ammunition by a convicted felon. sentencing, Proctor was held accountable for more than kilograms of crack cocaine, resulting in a base offense level of 38. Although Proctor qualified as a career offender, the offense level determined under U.S. Sentencing Guidelines Manual 2D1.1(c)(1) (2008) resulted was in not a higher changed offense under level, the so Proctor's offense level career offender guideline. After a two-level reduction for acceptance of responsibility, Proctor's adjusted offense level was 36, his criminal history category VI, and his guideline range 324 to 405 months. The district court sentenced him to 324 months' imprisonment. In November 2009, Proctor filed a motion for reduction of sentence pursuant to 18 U.S.C. 3582(c), based on Amendment 706, which reduced the offense 2 levels applicable to crack Case: 10-6055 Document: 14 Date Filed: 10/19/2010 Page: 3 cocaine offenses. The district court denied the motion, concluding that, because Proctor was sentenced under the career offender guideline, he cannot benefit from the amendment to the drug quantity table. On appeal from that order, Proctor contends that he was not sentenced as a career offender and therefore is eligible for a reduction under the amendment. agree. Under 3582(c)(2), the district court may modify the term of imprisonment "of a defendant who has been sentenced We . . . based on a sentencing range that has subsequently been lowered," if the amendment is 18 a listed U.S.C. in the Guidelines In as the of retroactively context of applicable. Amendment 706, 3582(c)(2). whose for defendant is offense a conviction involved crack cocaine eligible reduced sentence only if the amendment lowers the defendant's applicable guideline range. See United States v. Lindsey, 556 F.3d 238, 244 (4th Cir.), cert. denied, 130 S. Ct. 182 (2009). Although Proctor was determined to be a career offender, his guideline range was determined with reference to the quantity the of drugs attributed range to him by under the USSG 2D1.1 offender because guideline produced career designation was lower. See USSG 4B1.1(b) ("[I]f the offense level for a career offender . . . is greater than the offense level otherwise applicable, the offense level [generated by the 3 Case: 10-6055 Document: 14 Date Filed: 10/19/2010 Page: 4 career offender designation] shall apply."). Proctor's offense level determined by reference to the drug quantity was 38; the career offender guideline was 37. Because the offense level determined under the drug tables was higher, that level was used to determine Proctor's sentence. in fact, based on a guideline Thus, Proctor's sentence was, range that was subsequently lowered by Amendment 706. finding that Amendment 706 Accordingly, the district court's did not authorize a sentence reduction for Proctor because of his career offender designation was erroneous. See United States v. McGee, 553 F.3d 225, 230 (2d Cir. 2009) (concluding that a defendant who was designated as a career offender but ultimately explicitly sentenced based on a guideline range calculated by USSG 2D1.1 was eligible for a sentence reduction). Applying the amended drug quantity table in 2D1.1 results in an offense level of 36, based on 1.5 kilograms of crack cocaine. level 37, of The career offender guideline requires offense a higher level is the determined offense based on the the unless offense conviction. Because level under career offender guideline is higher than the level determined by reference to the drug quantity, Proctor's offense level would be 37. After the his two-level total reduction level for would acceptance be 35 and, of at responsibility, offense criminal history category VI, his guideline range would be 292 4 Case: 10-6055 Document: 14 Date Filed: 10/19/2010 Page: 5 to 365 months. Because application of Amendment 706 to Proctor's sentencing results in a sentencing range that is lower than the 324 to 405 month range applicable before Amendment 706, a reduction in Proctor's sentence is authorized under 3582(c). Because the district court mistakenly concluded that it was not so authorized, we vacate the district court's order and remand to the district court for a determination of whether the reduction should be applied in Proctor's case. * oral argument because in the the facts and legal before We dispense with contentions the court are and adequately presented materials argument would not aid the decisional process. VACATED AND REMANDED We determine in this opinion that a reduction is authorized; we express no opinion as to whether a reduction in Proctor's sentence is warranted. See United States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010) (providing that determination of whether to grant reduction of sentence authorized under Amendment 706 is within discretion of the district court judge). 5 *

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