    10-4776-cr
    United States v. Davis



                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 18th day of October, two thousand eleven.

    PRESENT:
                JOSEPH M. McLAUGHLIN,
                ROSEMARY S. POOLER,
                REENA RAGGI,
                      Circuit Judges.
    __________________________________________

    United States of America,

                       Appellee,

                              v.                                          10-4776-cr

    Anthony Davis, AKA Val,

                Defendant-Appellant.
    __________________________________________


    FOR APPELLANT:                 Anthony Davis, pro se, Fort Dix, NJ.


    FOR APPELLEES:                 Avi Weitzman, Katherine Polk Failla, Assistant United States
                                   Attorneys, of Counsel, for Preet Bharara, United States Attorney
                                   for the Southern District of New York, New York, NY.
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Kaplan, J.).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

       Appellant Anthony Davis, proceeding pro se, appeals from the district court’s order

denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment

706 to the United States Sentencing Guidelines. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       Pursuant to 18 U.S.C. § 3582(c)(2), a court may reduce the term of imprisonment 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.” Conversely, a sentence

reduction is not authorized under § 3582(c) if the Guidelines “amendment does not have the

effect of lowering the defendant’s applicable guideline range because of the operation of another

guideline or statutory provision.” U.S.S.G. § 1B1.10, Application Note 1(A). The amendment

at issue here, Amendment 706, effective November 2007 and was subsequently made

retroactive, and reduced by two levels the base offense level associated with crack cocaine

offenses. See U.S.S.G. § 2D1.1 (2007) (Amendment 706); U.S.S.G. § 1B1.10(c); United States

v. Regalado, 518 F.3d 143, 150 (2d Cir. 2008). We review de novo a district court’s

determination that a defendant is ineligible for relief under § 3582(c)(2). See United States v.

Martinez, 572 F.3d 82, 84 (2d Cir. 2009).

       Here, the district court correctly concluded that Davis is not eligible for relief under

§ 3582(c)(2), as his sentence was not based on a sentencing range that was subsequently lowered


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by Amendment 706 for two reasons. First, the applicable Guidelines range was based on Davis’s

status as a career offender under U.S.S.G. § 4B1.1, and not on the drug quantity table under

U.S.S.G. § 2D1.1. Because the career offender Guidelines were not affected by Amendment

706, “a defendant convicted of crack cocaine offenses but sentenced as a career offender under

U.S.S.G. § 4B1.1 is not eligible to be resentenced under [Amendment 706].” Martinez, 572 F.3d

at 85. Davis’s reliance on our decision in United States v. McGee is misplaced, as there, unlike

here, “the district court explicitly stated that it was departing from the career offender sentencing

range to the level that the defendant would have been in absent the career offender status

calculation and consideration,” effectively sentencing the defendant under the Guidelines range

applicable to crack cocaine offenses. See 553 F.3d 225, 227 (2d Cir. 2009)(internal quotation

marks omitted). Second, even if there was any ambiguity as to the above conclusion,

Amendment 706 was enacted in November 2007, and had already been incorporated into Davis’s

non-career offender Guidelines range when he was sentenced in May 2008.

        We have considered Davis’s other arguments on appeal and have found them to be

without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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