US v. Robert Nicken

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:04-cr-30018-GEC-9 Copies to all parties and the district court/agency. [999908416].. [15-7967]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7967

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT LEE NICKENS, a/k/a Spoon,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Glen E. Conrad, Chief
District Judge. (5:04-cr-30018-GEC-9)

Submitted:

July 22, 2016

Decided:

August 11, 2016

Before WILKINSON, DUNCAN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant.
John P. Fishwick, Jr., United States Attorney,
Jennifer R. Bockhorst, Assistant United States Attorney, Ashwin
Shandilya, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert

Lee

Nickens

appeals

the

district

court’s

order

denying his 18 U.S.C. § 3582(c)(2) (2012) motion for a sentence
reduction based on Amendment 782.

The district court concluded

that Nickens was not eligible for a sentence reduction under
§ 3582(c)(2), because Amendment 782 did not have the effect of
lowering his applicable Guidelines range.

We affirm.

A district court may reduce a term of imprisonment if a
defendant’s Guidelines range has subsequently been lowered by
the Sentencing Commission and the reduction is consistent with
applicable policy statements.

18 U.S.C. § 3582(c)(2) (2012).

A

reduction is not consistent with applicable policy statements
and therefore not authorized under § 3582(c)(2) if “an amendment
listed in [U.S. Sentencing Guidelines Manual § 1B1.10(d) (2015)]
does not have the effect of lowering the defendant’s applicable
guideline range.”
“To
effect,

determine

USSG § 1B1.10(a)(2)(B).

the

whether

sentencing

a

particular

court

must

amendment

‘substitute

has

that

only

the

amendments’ rendered retroactive by the Commission and ‘leave
all other guideline application decisions unaffected.’”

United

States v. Williams, 808 F.3d 253, 257 (4th Cir. 2015) (quoting
USSG § 1B1.10(b)(1)).

We review the district court’s ruling as

to the scope of its legal authority de novo.

2

Id. at 256.

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We have reviewed the record and conclude that the district
court

correctly

determined

Nickens

was

not

eligible

for

a

sentence reduction under § 3582(c)(2), because Amendment 782 did
not have the effect of lowering his applicable Guidelines range.
Nickens was sentenced as a career offender in 2005.

He contends

that his Guidelines range would be lower if he were sentenced
today,

because

conviction

was

the

statutory

lowered

by

maximum

the

Fair

for

his

Sentencing

offense

Act

of

of

2010.

However, the Act does not apply retroactively to defendants who
were sentenced before its effective date of August 3, 2010.

See

United States v. Black, 737 F.3d 280, 285-87 (4th Cir. 2013).
Accordingly,
dispense

with

contentions

are

we

oral

affirm

the

argument

adequately

district

because

presented

in

court’s

the
the

facts

order.

We

and

legal

materials

before

this Court and argument would not aid the decisional process.

AFFIRMED

3