United States v. Anthony F. Holstick

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 25, 2019
• Docket: 18-10074
• Status: Unpublished

Opinion

Case: 18-10074 Date Filed: 01/25/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10074 Non-Argument Calendar ________________________

D.C. Docket No. 3:94-cr-00114-WHA-CSC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY F. HOLSTICK,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Alabama ________________________

(January 25, 2019)

Before TJOFLAT, WILSON, and HULL, Circuit Judges.

PER CURIAM: Case: 18-10074 Date Filed: 01/25/2019 Page: 2 of 4

Anthony Holstick asks us to reduce his sentence pursuant to 18 U.S.C. §

3582(c)(2). He argues that Amendments 706, 750, and 782 to the Sentencing

Guidelines together lower his guideline range from 360 months to life to 292 to

365 months’ imprisonment. The District Court denied Holstick’s motion to reduce

his sentence, and denied his later attempt to supplement the motion. Holstick

appeals, and we affirm.

We review the District Court’s decision to deny a sentence reduction under

§ 3582(c)(2) for abuse of discretion. United States v. Smith, 568 F.3d 923, 926

(11th Cir. 2009).

Once pronounced, a district court’s authority to modify a sentence of

imprisonment is narrowly limited by statute. United States v. Phillips, 597 F.3d

1190, 1194–95 (11th Cir. 2010). Nevertheless, a district court may modify a

defendant’s term of imprisonment where the defendant was sentenced “based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). Where an amendment does not have the

effect of lowering a defendant’s applicable guideline range, § 3582(c)(2) relief is

unauthorized. Id.; United States Sentencing Commission, Guidelines Manual,

§ 1B1.10(a)(2)(B) (Nov. 2018).

At sentencing, Holstick had a guideline range of 360 months to life. He had

a criminal history category of V. The District Court attributed four kilograms of

2 Case: 18-10074 Date Filed: 01/25/2019 Page: 3 of 4

cocaine base to Holstick, which resulted in a base offense level of 38. Because of

his leadership role in the criminal activity, his base offense level increased by four

points for a total offense level of 42. Our task is to determine if Amendments 706,

750, and 782 to the Sentencing Guidelines lower Holstick’s guideline range.

Amendment 706 altered the Drug Quantity Table in USSG § 2D1.1(c).

USSG App. C, Amend. 706 (2007). It was made retroactive by Amendment 713 to

the Sentencing Guidelines. USSG App. C, Amend. 713 (2008). In effect,

Amendment 706 provided a two-level reduction in base offense levels for crack

cocaine offenses. United States v. Moore, 541 F.3d 1323, 1325 (11th Cir. 2008).

As a result, Holstick’s base offense level would be 36, and his total offense level

would be 40. With a total offense level of 40 and a criminal history category of V,

Holstick’s guideline range would be 360 years to life—i.e. the same. See USSG

Ch. 5, Pt. A (Sentencing Table).

Amendment 750 revised the crack cocaine quantity tables in USSG § 2D1.1

to conform to the Fair Sentencing Act of 2010. See USSG App. C., Amend. 750

(2011). It was made retroactive by Amendment 759 to the Sentencing Guidelines.

USSG App. C, Amend. 759 (2011). But Amendment 750 would have no effect on

Holstick’s offense level. The Sentencing Commission’s explanation for

Amendment 750 shows why:

[N]ot all crack cocaine offenders sentenced after November 1, 2011, will receive a lower sentence as a result of the change to the Drug 3 Case: 18-10074 Date Filed: 01/25/2019 Page: 4 of 4

Quantity Table. . . . [T]he amendment does not lower the base offense levels, and therefore does not lower the sentences, for offenses involving . . . at least 2.8 kilograms but less than 4.5 kilograms [of crack cocaine].

USSG App. C, Amend. 750 (Reason for Amendment). The District Court

attributed four kilograms of cocaine base to Holstick. Thus, he falls within the

noted quantity gap, and Amendment 750 would not change his offense level.

Amendment 782 provides a 2-level reduction in the base offense levels for

most drug quantities listed in the Drug Quantity Table in USSG § 2D1.1(c). USSG

Supp. App. C, Amend. 782 (2014). It was made retroactive by Amendment 788 to

the Sentencing Guidelines. USSG Supp. App. C., Amend. 788 (2014). Holstick’s

base offense level would thus be reduced from a 36—after the reduction from

Amendment 706—to a 34. See USSG § 2D1.1(c)(3). After the four-level role

enhancement, his total offense level would be 38. With an offense level of 38 and

a criminal history category of V, Holstick’s guideline range is still 360 months to

life. See USSG Ch. 5, Pt. A (Sentencing Table).

We conclude that the District Court did not err in denying Holstick’s motion

to supplement his § 3582(c)(2) motion because he failed to demonstrate that the

amendments he cites to, even when considered cumulatively, would have the effect

of lowering his guideline range.

AFFIRMED.