US v. John Proctor

Filing

UNPUBLISHED PER CURIAM OPINION filed.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]

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6055 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. JOHN RICHARD PROCTOR, Defendant ­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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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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

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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

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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

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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

*