US v. John Smith

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:02-cr-00064-GMG-7. Copies to all parties and the district court. [999691383]. Mailed to: Appellant. [15-7000]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7000

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN PAUL SMITH,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:02-cr-00064-GMG-7)

Submitted:

October 20, 2015

Decided:

November 3, 2015

Before KING, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John Paul Smith, Appellant Pro Se.
Paul Thomas Camilletti,
Assistant United States Attorney, Martinsburg, West Virginia;
Michael D. Stein, Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
John Paul Smith appeals the district court’s order denying
his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2)
(2012) based on Amendment 782.
find no reversible error.

We have reviewed the record and

Accordingly, we affirm.

A district court may reduce a prison term if a defendant’s
Guidelines range has subsequently been lowered by the Sentencing
Commission

and

the

policy statements.
is

not

therefore

is

consistent

with

18 U.S.C. § 3582(c)(2) (2012).

consistent
not

reduction

with

authorized

applicable
under

policy

§ 3582(c)(2)

applicable
A reduction

statements
if

“an

and

amendment

listed in [U.S. Sentencing Guidelines Manual § 1B1.10(d) (2014)]
does not have the effect of lowering the defendant’s applicable
guideline range.”

USSG § 1B1.10(a)(2)(B).

We review a district

court’s decision under § 3582(c)(2) for abuse of discretion and
its ruling as to the scope of its legal authority de novo.
United States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013).
In deciding whether to modify a prison term pursuant to a
retroactive amendment to the Sentencing Guidelines, the first
step is to “determine the amended guideline range that would
have been applicable to the defendant if the amendment(s) to the
guidelines listed in [USSG § 1B1.10(d)] had been in effect at
the time the defendant was sentenced.”

USSG § 1B1.10(b)(1);

Dillon v. United States, 560 U.S. 817, 827 (2010).
2

“In making

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such

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determination,

the

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court

shall

substitute

only

the

amendments listed in [USSG § 1B1.10(d)] for the corresponding
guideline provisions that were applied when the defendant was
sentenced

and

shall

leave

decisions unaffected.”
in

USSG

§ 1B1.10(d)

all

other

guideline

USSG § 1B1.10(b)(1).
include

not

only

application

Amendments listed

Amendment

782,

which

generally reduced base offense levels in USSG § 2D1.1, but also
Amendments

657

and

750,

which

changed

Tables for oxycodone and cocaine base.

the

Drug

Equivalency

See USSG § 1B1.10(d).

At sentencing, the district court adopted the presentence
report and found Smith responsible for a marijuana equivalency
of 2,664.92275 kilograms based on 85.55 grams of cocaine base,
115.2 grams of cocaine hydrochloride, 639.3631 grams of heroin,
and

583.0393

grams

of

oxycodone.

Under

the

2002

Sentencing

Guidelines Manual, the district court determined that Smith’s
base offense level was 32, and his total offense level was 34.
With

a

criminal

history

category

of

V

and

20-year

statutory

maximum, his Guidelines range was 235 to 240 months.
Applying the amendments listed in USSG § 1B1.10(d), Smith’s
Guidelines range has not been lowered.

Under Amendment 782, a

marijuana equivalency of 3,000 to 10,000 kilograms is now a base
offense level of 32.

Applying the Drug Equivalency Tables in

Amendments 657 and 750, Smith would now be responsible for a
marijuana equivalency of over 3,000 kilograms based on the drug
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quantity findings at sentencing. *

Accordingly, the Sentencing

Commission has not lowered Smith’s Guidelines range, and he is
not eligible for a reduction under 18 U.S.C. § 3582(c)(2).
We dispense with oral argument because the facts and legal
contentions

are

adequately

presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

*

We note that even if the stipulated drug amounts were
used, rather than the higher drug amounts found by the district
court at sentencing, the marijuana equivalency would still
exceed 3,000 kilograms based on the applicable amendments.

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