              Case: 19-14804     Date Filed: 07/23/2020   Page: 1 of 5



                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 19-14804
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 5:95-cr-05016-LC-EMT-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JAMES KEITH JOHNSON,
a.k.a. Thunder Eagle Ghost Dancer,

                                                              Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________

                                  (July 23, 2020)

Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:

      James Keith Johnson, proceeding pro se, appeals the district court’s denial

of his request for a total sentence reduction in light of Amendment 599 to the
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guidelines, pursuant to 18 U.S.C. § 3582(c)(2). He contends that Amendment 599

was retroactively applicable, it lowered his offense level by five levels, the record

was silent as to whether he was a career offender, and the court erred in not

weighing the § 3553(a) sentencing factors. The government moves for summary

affirmance, and contends that even if Amendment 599 were applicable, it did not

change Johnson’s guideline range due to his status as a career offender.

      Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

      In a § 3582(c)(2) proceeding, “we review de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines.”

United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008). A district court’s

decision whether to reduce a sentence pursuant to § 3582(c)(2) is reviewed for an

abuse of discretion. United States v. White, 305 F. 3d 1264, 1267 (11th Cir. 2002).

      It is well-established that a district court has no inherent authority to modify

a defendant’s sentence and may do so “only when authorized by statute or rule.”

United States v. Puentes, 803 F.3d 597, 605-06 (11th Cir. 2015). A district court


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may “modify an imposed term of imprisonment to the extent . . . expressly

permitted by statute.” 18 U.S.C. § 3582(c)(1)(B). Under 18 U.S.C. § 3582(c)(2), a

district court may reduce a prisoner’s term of imprisonment where a prisoner was

sentenced based on a sentencing range that was subsequently lowered by the

Sentencing Commission. 18 U.S.C. § 3582(c)(2). However, “[a]ny retroactive

reduction in sentence subsequent to a motion filed under § 3582(c)(2) must be

‘consistent with applicable policy statements issued by the Sentencing

Commission.”’ United States v. Armstrong, 347 F.3d 905, 907 (11th Cir. 2003)

(quoting 18 U.S.C. § 3582(c)(2)).

      The Sentencing Commission’s policy statement on retroactive reduction of

sentences, U.S.S.G. § 1B1.10, provides the following:

            (a) Authority—

                       (1) In General—In a case in which a defendant is serving
                       a term of imprisonment, and the guideline range
                       applicable to that defendant has subsequently been
                       lowered as a result of an amendment to the Guidelines
                       Manual listed in subsection (d) below, the court may
                       reduce the defendant’s term of imprisonment as provided
                       by 18 U.S.C. § 3582(c)(2).

                       (2) Exclusions—a reduction in the defendant’s term of
                       imprisonment is not consistent with this policy statement
                       and therefore is not authorized under []§ 3582(c)(2) if:

                             (A) none of the amendments listed in subsection
                             (d) is applicable to the defendant
            [ . . .]


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             (d) Covered Amendments—Amendments covered by this
             policy statement [include] . . . 599 . . . .

U.S.S.G. §§ 1B1.10(a)(1)-(2), (d) (emphasis added). Thus, as outlined above, “for

a sentence to be reduced retroactively under § 3582(c)(2), a court must determine

whether there has been an amendment to the sentencing guidelines that has

lowered the guideline range applicable to that sentence and is listed under §

1B1.10([d]).” Armstrong, 347 F.3d at 907. Amendment 599 is a listed amendment

in § 1B1.10(d). See U.S.S.G. § 1B1.10(d).

      However, “[w]here a retroactively applicable guideline amendment reduces

a defendant’s base offense level but does not alter the sentencing range upon which

his or her sentence was based, § 3582(c)(2) does not authorize a reduction in

sentence.” United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008); see also

U.S.S.G. § 1B1.10, comment (n.1(A)(ii)) (a reduction is not authorized where “the

amendment does not have the effect of lowering the defendant’s applicable

guideline range because of the operation of another guideline or statutory

provision.”). A § 3582(c)(2) proceeding does not constitute a de novo

resentencing, and all original sentencing determinations remain unchanged with

the sole exception of the guideline range that has been amended since the original

sentencing.” Unite State v. Bravo, 203 F. 3d 778, 781 (11th Cir. 2000) (emphasis

omitted).



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      “Amendment 599 was enacted in order to clarify under what circumstances a

weapons enhancement may properly be applied to an underlying offense when the

defendant has also been convicted of the use or possession of a firearm pursuant to

18 U.S.C. § 924(c).” United States v. Pringle, 350 F. 3d 1172, 1179 (11th Cir.

2004); see U.S.S.G. App. C., Amend. 599. The purpose of this amendment was to

“prevent ‘double counting’ for firearms use in any one criminal event.” Pringle,

350 F. 3d at 1180 (emphasis in original). The Sentencing Guidelines explicitly

state that Amendment 599 can be retroactively applied upon a motion under §

3582(c)(2). U.S.S.G. § 1B1.10(a), (c).

      Here, the district court did not abuse its discretion by denying Johnson’s

motion to reduce his total sentence. Even though Amendment 599 might have

applied to his case, the PSI expressly observed that he alternatively would have

qualified as a career offender, under § 4B1.1, which would have yielded the same

offense level. See U.S.S.G. § 1B1.10, comment. (n.1(A)(ii)). Therefore, the

application of Amendment 599 would not have changed his guideline range, and

his motion was properly denied. Moore, 541 F. 3d at 1330.

      Accordingly, because the government’s position is clearly correct as a matter

of law, we GRANT the government’s motion for summary affirmance and DENY

as moot its motion to stay the briefing schedule.




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