United States v. Antonio Markeith Beverly

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 30, 2018
• Docket: 17-15059
• Status: Unpublished

Opinion

Case: 17-15059 Date Filed: 04/30/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15059 Non-Argument Calendar ________________________

D.C. Docket No. 9:13-cr-80034-KAM-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO MARKEITH BEVERLY, a.k.a. Tony,

Defendant-Appellant.

________________________

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

(April 30, 2018)

Before WILSON, JULIE CARNES, and HULL, Circuit Judges.

PER CURIAM: Case: 17-15059 Date Filed: 04/30/2018 Page: 2 of 4

Antonio Beverly appeals the district court’s denial of his second motion to

reduce his sentence under 18 U.S.C. § 3582(c)(2), based on Amendment 782 to the

United States Sentencing Guidelines. After careful consideration of the parties’

briefs and the record, we affirm.

In 2013, Beverly entered a guilty plea to conspiracy to possess with intent to

distribute 280 grams of cocaine, and conspiracy to possess with intent to distribute

five kilograms or more of cocaine hydrochloride. He was sentenced to 228 months

of imprisonment. Beverly appealed, but we affirmed his convictions and total

sentence. See United States v. Beverly, 580 F. App’x 899 (11th Cir. 2014) (per

curiam).

In 2014, Beverly filed his first § 3582(c)(2) motion. He sought a sentence

reduction under Amendment 782. He succeeded, and the district court reduced his

sentence to 216 months of imprisonment. In 2017, Beverly filed his second

§ 3582(c)(2) motion—at issue in this appeal—and again cited to Amendment 782

as the basis for his motion. The district court denied the motion, reasoning that the

motion challenged the validity of both his original sentence and the court’s

previous order reducing his sentence under § 3582(c)(2), issues that he should have

raised in a direct appeal.

Now appealing the district court’s denial of his second § 3582(c)(2) motion,

Beverly presents arguments that focus entirely on the district court’s guideline

2 Case: 17-15059 Date Filed: 04/30/2018 Page: 3 of 4

calculations at both his initial sentencing and resentencing. He argues that the

initial sentencing court erred in enhancing his offense level by two because he

possessed a firearm, and that the district court, in granting his first § 3582(c)(2)

motion, incorrectly concluded that his sentence should be reduced to 216 months

of imprisonment.

We cannot consider either argument. First, Beverly already appealed his

convictions and total sentence, which we affirmed. Second, Beverly failed to

appeal the district court’s rulings on his first § 3582(c)(2) motion. He cannot bring

those claims in this appeal. See United States v. Escobar-Urrego, 110 F.3d 1556,

1560–61 (11th Cir. 1997).

Even construed liberally, Beverly’s briefing does not present a challenge to

the district court’s denial of his second § 3582(c)(2) motion. See Marek v.

Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995) (“Issues not clearly raised in

the briefs are considered abandoned.”). But even if Beverly had presented a

challenge to the district court’s denial, he could not have prevailed. Beverly based

his second motion on the same guideline amendment that he prevailed under in his

first motion. See United States v. Caraballo-Martinez, 866 F.3d 1233, 1240 (11th

Cir. 2017) (“[I]f a defendant receives a sentence modification under § 3582(c)(2),

subsequent reduction based on the same amendment to the Guidelines is not

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available—the modified sentence is no longer based on the outdated Guidelines

range.”).

Accordingly, we affirm the district court’s denial of Beverly’s second

§ 3582(c)(2) motion.

AFFIRMED.