     Case: 09-20254 Document: 00511311223 Page: 1 Date Filed: 12/03/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          December 3, 2010
                                     No. 09-20254
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

DEON TARRAL MCDANIEL,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:95-CR-235-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Proceeding pro se, Deon Tarral McDaniel, federal prisoner # 70091-079,
appeals the denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence.
He contends he is eligible for a sentence reduction based upon Amendment 599
(clarifying the circumstances sentencing enhancements should apply to use of
a firearm in relation to a crime of violence) to the commentary to Sentencing
Guideline § 2K2.4 (establishing Guideline sentence for, inter alia, defendants
convicted of violating 18 U.S.C. § 924(c)). The district court’s interpretation of

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-20254

the Guidelines is reviewed de novo. See, e.g., United States v. Conner, 537 F.3d
480, 489 (5th Cir. 2008).
      The Government maintains McDaniel’s notice of appeal was untimely and
this appeal is, therefore, subject to dismissal. The untimely filing of a notice of
appeal, however, is not jurisdictional and can be waived in a criminal case. See
United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007) (citing Bowles v.
Russell, 551 U.S. 205, 207-14 (2007)); F ED R. A PP. P. 4(b)(1)(A). Because the
Government evidences its intent to waive the issue, we need not decide it.
      In 1996, McDaniel pleaded guilty to armed bank robbery (count one), in
violation of 18 U.S.C. § 2113(a), (d), and to use and carrying of a firearm during,
and in relation to, a crime of violence (count two), in violation of § 924(c)(1).
After applying various offense-level enhancements and adjustments, including
a three-level adjustment, pursuant to Guideline § 3A1.2(a), for assaulting an
official victim, and a two-level obstruction of justice adjustment, pursuant to
Guideline § 3C1.2, for reckless endangerment, the district court sentenced
McDaniel to 235 months’ imprisonment for count one, to be served consecutively
with 120 months’ imprisonment for count two, for a total of 355 months’
imprisonment. The district court also determined that McDaniel was a career
offender pursuant to Guideline § 4B1.1.
      Amendment 599 amends the commentary to Guideline § 2K2.4, and
clarifies “under what circumstances defendants sentenced for violations of 18
U.S.C. § 924(c) in conjunction with convictions for other offenses may receive
weapon enhancements contained in the guidelines for those other offenses”.
U.S.S.G. app. C, amend. 599 (Nov. 2000).         The Amendment expanded the
commentary to clarify its application, “ consistent with the definition of ‘offense’
found in § 1B1.1 . . . and with general guideline principles”. Id.
      Section 3582(c)(2) permits the discretionary modification of defendant’s
sentence in certain cases where the sentencing range has been subsequently
lowered by the Sentencing Commission. See United States v. Doublin, 572 F.3d

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235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see also U.S.S.G.
§ 1B1.10(a).     Section 3582(c)(2) applies only to retroactive Guidelines
amendments, as set forth in the Guidelines policy statement. See U.S.S.G.
§ 1B1.10(a).   If an amendment “does not have the effect of lowering the
defendant’s applicable guideline range”, a sentence reduction is not consistent
with Guideline § 1B1.10 and is not authorized by § 3582(c)(2).           U.S.S.G.
§ 1B1.10(a)(2)(B); see also 18 U.S.C. § 3582(c)(2). The Government concedes
Amendment 599 applies retroactively. See also U.S.S.G. § 1B1.10(c).
      McDaniel contends that, in the light of Amendment 599 and his conviction
under § 924(c)(1) for using and carrying a firearm during, and in relation to, a
crime of violence, the district court should not have applied the two Chapter
Three adjustments. Because the facts supporting each adjustment involved the
use of a firearm, he claims those adjustments are more appropriately considered
specific offense characteristics; consequently, he contends application of these
adjustments along with his conviction for the firearm offense constituted
impermissible “double-counting”.
      At the time of McDaniel’s sentencing, the Guidelines provided:            if
sentences were to be imposed for both a violation of § 924(c) and for an
underlying offense, any specific offense characteristics for the possession, use,
or discharge of a firearm should not be applied to the underlying offense. See
U.S.S.G. § 2K2.4 cmt. n.2 (1991).      Although Amendment 599 altered and
clarified the text of the relevant Application Note, it did not change the general
rule against applying the firearms enhancements to the underlying offense
where the defendant also was convicted under § 924(c). See U.S.S.G. app. C,
amend. 599 (Nov. 2000).
      Moreover, in determining whether a defendant is eligible for a reduction
under § 3582(c)(2), a court must “consider the sentence it would have originally
imposed had the Guidelines, as amended, been in effect at that time”. United
States v.Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995) (quoting Guideline

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§ 1B1.10(b)). It must “substitute only the amendments listed in subsection (c)
for the corresponding guideline provisions that were applied when the defendant
was sentenced and shall leave all other guideline application decisions
unaffected”. U.S.S.G. § 1B1.10 (b)(1). Even if any Guidelines amendments were
applicable in McDaniel’s case, operation of the career-offender Guideline
prevents any reduction in his sentencing Guideline range.            See U.S.S.G.
§ 4B1.1(b).   Because Amendment 599 does not have the effect of lowering
McDaniel’s applicable Guideline range, a sentence reduction is not consistent
with Guideline § 1B.10 and is not authorized by § 3582(c)(2).             U.S.S.G.
§ 1B1.10(a); see also 18 U.S.C. § 3582(c)(2).
      To the extent McDaniel contends the district court inappropriately applied
the Chapter Three adjustments and was prohibited from concurrently applying
both adjustments because they involved the same conduct, he is merely
attempting to relitigate issues already raised and ruled upon at sentencing.
Issues relating to the original sentencing are beyond the scope of the Guidelines
amendment and are therefore not cognizable in a § 3582 motion. See United
States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009) (modification in original), cert.
denied, 130 S. Ct. 3462 (2010).
      No authority need be cited for the well-established rule that, because
McDaniel’s claim regarding Amendment 600 (clarifying application of career-
offender Guideline to defendants convicted under 18 U.S.C. § 924(c)) is raised for
the first time on appeal, and especially because it is raised in his reply brief, it
will not be considered.
      AFFIRMED.




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