US v. Kerry Lee, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00024-JPJ-7. Copies to all parties and the district court/agency [1000036835]. Mailed to: Kerry Donnell Lee, Jr. [16-7311]

Appeal: 16-7311

Doc: 8

Filed: 03/07/2017

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7311

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KERRY DONNELL LEE, JR., a/k/a Skinny,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.
James P. Jones, District
Judge. (1:08-cr-00024-JPJ-7)

Submitted:

February 27, 2017

Decided:

March 7, 2017

Before NIEMEYER and SHEDD, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Kerry Donnell Lee, Jr., Appellant Pro Se.
Jennifer R.
Bockhorst, Zachary T. Lee, Assistant United States Attorneys,
Mary Kathleen Carnell, OFFICE OF THE UNITED STATES ATTORNEY,
Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 16-7311

Doc: 8

Filed: 03/07/2017

Pg: 2 of 4

PER CURIAM:
Kerry Donnell Lee, Jr., appeals the district court’s order
denying his 18 U.S.C. § 3582(c)(2) (2012) motion for a reduction
of his sentence.
Amendment

782

Lee sought relief under Amendment 750 and

(collectively

“the

Amendments”)

of

the

U.S.

Sentencing Guidelines Manual (“USSG”), both of which lowered the
base offense levels for drug offenses involving cocaine base.
See USSG § 2D1.1(c) (2015); USSG app. C, amends. 750, 782.

The

district

the

court

concluded

that

Lee

was

not

entitled

to

benefit of the Amendments because he was sentenced as a career
offender.

Our review of the record reveals that, although Lee

qualified as a career offender, see USSG § 4B1.1 (2007), he was
not

sentenced

as

a

career

offender.

Nevertheless,

for

the

reasons that follow, we conclude that the Amendments would not
have the effect of lowering Lee’s Guidelines sentencing range.
We accordingly affirm.

See United States v. Smith, 395 F.3d

516, 519 (4th Cir. 2005) (holding that we “may affirm on any
grounds apparent from the record”).
Under

§ 3582(c)(2),

the

district

court

may

reduce

the

sentence of a defendant who “has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently
been lowered by the Sentencing Commission.”

United States v.

Williams, 808 F.3d 253, 257 (4th Cir. 2015) (internal quotation
marks omitted).

To determine whether a particular amendment has
2

Appeal: 16-7311

the

Doc: 8

effect

Filed: 03/07/2017

of

lowering

a

Pg: 3 of 4

defendant’s

applicable

Guidelines

sentencing range, “the sentencing court must substitute only the
amendments rendered retroactive by the Commission and leave all
other

guideline

application

decisions

(internal quotation marks omitted).

unaffected.”

Id.

“Guidelines Amendments 750

and 782 lowered the base offense levels assigned to different
amounts of cocaine base,” and both amendments are retroactive.
United States v. Peters, 843 F.3d 572, 575 (4th Cir. 2016).
“Amendment 750 increased the minimum quantity of cocaine base
necessary to trigger the maximum base offense level [of 38] from
4.5 to 8.4 kilograms.”

Id.

“Amendment 782 again raised the

requisite amount of cocaine base from 8.4 to 25.2 kilograms.”
Id.

Thus,

kilograms

“[f]or

of

defendants

cocaine

base,

responsible

Amendment

782

for
has

at

least
effect;

no

25.2
the

maximum base offense level (38 levels) still applies.”

Id.

Lee was held responsible for 51.35 kilograms of cocaine
base;

thus,

neither

Amendment

750

effect on his base offense level.

nor

Amendment

782

has

any

Simply stated, Lee’s sentence

was not “based on a sentencing range that has subsequently been
lowered

by

the

§ 3582(c)(2).

Sentencing

Commission.”

See

18

U.S.C.

Had Lee been sentenced after the Amendments went

into effect, his base offense level would remain 38, the career
offender
sentencing

enhancement
range

would

would

not

remain

the
3

apply,
same.

and

his

Guidelines

Therefore,

neither

Appeal: 16-7311

Doc: 8

Filed: 03/07/2017

Pg: 4 of 4

Amendment 750 nor Amendment 782 has the effect of lowering Lee’s
Guidelines

sentencing

range,

and

Lee

is

not

entitled

to

a

sentence reduction.
Because Lee is ineligible for a sentence reduction under
§ 3582(c)(2), we affirm the district court’s denial of relief on
this alternate ground.

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

4