USA v. Deon Charle

Filing

FILED OPINION (FERDINAND F. FERNANDEZ, SUSAN P. GRABER and MARY H. MURGUIA) AFFIRMED. Judge: FFF Authoring, Judge: SPG , Judge: MHM . FILED AND ENTERED JUDGMENT. [9057988]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 12-50150

v.

D.C. No.
2:07-cr-00614-SJO-1

DEON ANDRE CHARLES,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
March 5, 2014—Pasadena, California
Filed April 15, 2014
Before: Ferdinand F. Fernandez, Susan P. Graber,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Fernandez

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UNITED STATES V. CHARLES
SUMMARY*

Criminal Law
Affirming the district court’s denial of a motion for
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2), the
panel held that retroactive Sentencing Guidelines Amendment
750 (Nov. 2011), which reduced the crack cocaine offense
levels set forth in U.S.S.G. § 2D1.1, does not apply to or help
defendants who were sentenced as career offenders pursuant
to U.S.S.G. § 4B1.1.
Consistent with this court’s prior holdings that the Fair
Sentencing Act of 2010 does not express an intent that its
ameliorative provisions apply retroactively to defendants who
were sentenced before its effective date, the panel rejected the
defendant’s contention that the Act itself mandates a
reduction in his sentence.

COUNSEL
Jay A. Nelson (argued), Coleman & Balogh LLP, San
Francisco, California; Benjamin L. Coleman, Coleman &
Balogh LLP, San Diego, California, for Defendant-Appellant.
Jean-Claude Andre (argued), Assistant United States
Attorney, Office of the United States Attorney, Los Angeles,
California; André Birotte Jr., United States Attorney, Denise
D. Willet, Assistant United States Attorney, Chief, Santa Ana
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. CHARLES

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Branch, Fred W. Slaughter, Assistant United States Attorney,
Office of the United States Attorney, Santa Ana, California,
for Plaintiff-Appellee.

OPINION
FERNANDEZ, Circuit Judge:
Deon Andre Charles, a federal prisoner serving a 204month sentence, appeals the district court’s denial of his
motion for a reduction of sentence. See 18 U.S.C.
§ 3582(c)(2). He contends that he is eligible for a sentence
reduction because of the Fair Sentencing Act of 2010
(“FSA”), Pub. L. No. 111-220, 124 Stat. 2372, and United
States Sentencing Guidelines (“Guidelines”) Amendment
750.1 We disagree and affirm.
BACKGROUND
On July 6, 2007, pursuant to a plea agreement, Charles
entered a guilty plea to the crimes of felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) (count one) and
possession with the intent to distribute at least 50 grams of
cocaine base in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(iii) (count two). His plea agreement stipulated a
total offense level of 32, absent a determination that Charles
was a career offender.
At sentencing the district court held that Charles was a
career offender. See USSG § 4B1.1(a) (Nov. 2007) (“Career

1

USSG App. C, amend. 750 (Nov. 2011) (“Amendment 750”).

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UNITED STATES V. CHARLES

Offender Guideline”). As a result, it determined that
Charles’s base offense level under the Career Offender
Guideline was 37, based on the statutory maximum sentence
of life imprisonment under 21 U.S.C. § 841. After a threelevel reduction for acceptance of responsibility, the court held
that Charles’s total offense level was 34. As a career offender
his criminal history category was VI. USSG § 4B1.1(b).
After considering the relevant factors under 18 U.S.C.
§ 3553(a), the court sentenced Charles as a career offender to
a below-Guidelines term of 204 months of imprisonment on
count two and 120 months on count one, to be served
concurrently.
Charles subsequently filed a notice of appeal and
challenged his sentence. He argued that the district court had
erred in finding that he was a career offender. On September
9, 2009, we affirmed his sentence and held that “the district
court did not commit plain error in determining that Charles
is a career offender under § 4B1.1.” United States v. Charles,
581 F.3d 927, 936 (9th Cir. 2009).
On February 17, 2012, Charles filed a motion to reduce
his sentence pursuant to 18 U.S.C. § 3582(c)(2). He argued
that, because the FSA reduced the maximum penalty for the
quantity of crack cocaine under 21 U.S.C. § 841 from life
imprisonment to 40 years, his career offender base offense
level under USSG § 4B1.1 should also be reduced. The
district court held that Charles was ineligible for a sentence
reduction because he was sentenced “based on the career
offender guideline range provided by U.S.S.G. § 4B1.1 and
not the range dictated by U.S.S.G. § 2D1.1 related to crack
cocaine offenses.” This timely appeal followed.

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JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742. We review de novo whether a district
court has jurisdiction to reduce a sentence under 18 U.S.C.
§ 3582. United States v. Wesson, 583 F.3d 728, 730 (9th Cir.
2009).
DISCUSSION
Charles contends that he is eligible for a reduction of his
sentence either because the FSA requires a reduction or
because of retroactive changes made to the Guidelines.
A. Direct FSA Reduction
Charles suggests that the FSA itself mandates a reduction
in his sentence. He is incorrect.
We have previously held that the FSA does not express an
intent that its ameliorative provisions apply retroactively to
defendants who were sentenced before its effective date —
August 3, 2010. See United States v. Augustine, 712 F.3d
1290, 1292–95 (9th Cir.), cert. denied, __ U.S. __, 134 S. Ct.
297, 187 L. Ed. 2d 213 (2013); United States v. Sykes,
658 F.3d 1140, 1148 (9th Cir. 2011); United States v. Baptist,
646 F.3d 1225, 1227–29 (9th Cir. 2011) (per curiam); see
also Dorsey v. United States, __ U.S. __, __, 132 S. Ct. 2321,
2335, 183 L. Ed. 2d 250 (2012). Other circuit courts of
appeals have reached the same conclusion. See, e.g., United
States v. Blewett, No. 12-5226, 2013 WL 6231727, at *1–2
(6th Cir. Dec. 3, 2013) (en banc), cert. denied, No. 13-8947,
2014 WL 859676, at *1 (Mar. 31, 2014); United States v.
Johnson, 732 F.3d 109, 115–16 (2d Cir. 2013); United States

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v. Hodge, 721 F.3d 1279, 1281 (10th Cir. 2013); United
States v. Reeves, 717 F.3d 647, 650–51 (8th Cir. 2013);
United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012)
(per curiam); United States v. Turlington, 696 F.3d 425,
428 (3d Cir. 2012); United States v. Bigesby, 685 F.3d 1060,
1066 (D.C. Cir. 2012), cert. denied, __ U.S. __, 133 S. Ct.
981, 184 L. Ed. 2d 764 (2013); United States v. Curet,
670 F.3d 296, 308 (1st Cir. 2012); United States v. Griffin,
652 F.3d 793, 802 (7th Cir. 2011); United States v. Bullard,
645 F.3d 237, 248–49 (4th Cir. 2011); United States v.
Doggins, 633 F.3d 379, 384 (5th Cir. 2011).
B. Amendment 750
Charles contends that he is eligible for a reduction
because Amendment 750, which was made retroactive in part
by Guideline Amendment 759,2 reduced the crack cocaine
offense levels set forth in USSG § 2D1.1.3 However, Charles
was sentenced under the Career Offender Guideline,4 and we
hold that Amendment 750 does not apply to that guideline.5

2

USSG App. C, amend. 759 (Nov. 2011) (“Amendment 759”).

3

Compare USSG § 2D1.1 (Nov. 2011), with USSG § 2D1.1 (Nov.
2007).
4

See USSG § 4B1.1 (Nov. 2007).

5
Of course, the district court’s authority to reduce his sentence was
dependent upon “applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). Those policy statements allowed
reductions based on changes made by Amendment 750. See USSG
§1B1.10(c) (Nov. 2011).

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We have previously held that retroactive amendments
regarding sentences under the drug guidelines do not affect
individuals who were sentenced as career offenders because,
as we said “[t]he two sentencing schemes are mutually
exclusive.” Wesson, 583 F.3d at 731. Similarly, we have
held that the retroactive6 changes wrought by Amendment
750 did not affect a sentence that was imposed pursuant to the
Career Offender Guideline. United States v. Pleasant,
704 F.3d 808, 811–12 (9th Cir.), cert. denied, __ U.S. __,
134 S. Ct. 824, 187 L. Ed. 2d 688 (2013). At the very least,
those cases suggest that we should conclude that Amendment
750 does not affect a defendant’s career offender sentence.
Other courts of appeals have reached that conclusion. See
United States v. Riley, 726 F.3d 756, 758–59 (6th Cir. 2013);
Hodge, 721 F.3d at 1280–81; Reeves, 717 F.3d at 650–51;
Berry, 701 F.3d at 376–77; Curet, 670 F.3d at 309–10;
Griffin, 652 F.3d at 803. As the Tenth Circuit Court of
Appeals said:
Mr. Hodge is not eligible for a reduction
under Amendment 750 because he was
sentenced under the career offender guideline
rather than the crack cocaine guideline. Both
Amendment 750 and Amendment 706
modified the Guidelines provisions pertaining
to crack cocaine. It is well settled that a
reduction in the offense level under
Amendment 706 has no effect on an
applicable career offender guideline range. In
multiple unpublished cases this court has
extended this holding to career offenders
6

See Amendment 759.

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UNITED STATES V. CHARLES
seeking relief under Amendment 750. We
find the reasoning in these cases persuasive.

Hodge, 721 F.3d at 1280–81 (citations omitted).
We now join the other courts of appeals and hold what is
at least implied in our prior published dispositions and made
explicit in our numerous unpublished dispositions:
Amendment 750 does not apply to or help defendants who
were sentenced as career offenders pursuant to USSG
§ 4B1.1. Thus, Charles is not eligible to be considered for a
sentence reduction.
CONCLUSION
Because Charles was sentenced before August 3, 2010,
the FSA does not affect his sentence. Because he was
sentenced as a career offender (USSG § 4B1.1), the
retroactive amendments to the drug guideline (USSG
§ 2D1.1) do not qualify him for sentence reduction
consideration. See 18 U.S.C. § 3582(c)(2); USSG § 1B1.10.
AFFIRMED.

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