United States v. Antwun Ivory Wilson

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 18, 2018
• Docket: 17-11824
• Status: Unpublished

Opinion

Case: 17-11824 Date Filed: 06/18/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-11824 Non-Argument Calendar ________________________

D.C. Docket No. 1:08-cr-20650-MGC-15

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

ANTWUN IVORY WILSON,

Defendant-Appellee.

________________________

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

(June 18, 2018)

Before ED CARNES, Chief Judge, JILL PRYOR, and FAY, Circuit Judges.

PER CURIAM: Case: 17-11824 Date Filed: 06/18/2018 Page: 2 of 5

The government appeals the district court’s grant of federal prisoner Antwun

Wilson’s motion under 18 U.S.C. § 3582(c)(2). Wilson’s motion to reduce his

sentence relied on Amendment 782 to the United States Sentencing Guidelines,

which lowered the offense levels in the drug quantity table in § 2D1.1.

In July 2008 Wilson was charged with one count of conspiracy to possess

with the intent to distribute cocaine, in violation of 18 U.S.C. §§ 841(a)(1),

(b)(1)(C), and 846. He pleaded guilty in November 2008. He received an initial

base offense level of 20 under § 2D1.1 because he possessed 250 grams of cocaine.

See United States Sentencing Guidelines § 2D1.1 (Nov. 2008). But he qualified as

a career offender under § 4B1.1 because of his cocaine conviction and prior

Florida convictions for trafficking in cocaine; possession with intent to sell cocaine

near a school; and the sale, manufacture, or delivery of cocaine. See id. § 4B1.1

(providing that a defendant is a career offender if the “instant offense of

conviction” is a controlled substance offense and he has “at least two prior felony

convictions” for a controlled substance offense). Because he qualified as a career

offender, the presentence investigation report calculated his base offense level as

32. That base offense level and his criminal history category of VI yielded a

guidelines range of 210 to 240 months.

At the sentence hearing, the court applied a three-level reduction for

acceptance of responsibility; the government did not object. That reduction

2 Case: 17-11824 Date Filed: 06/18/2018 Page: 3 of 5

lowered Wilson’s base offense level to 29 and his guidelines range to 151 to 188

months. The government and Wilson jointly recommended a sentence at the

bottom of the guidelines range, so the court sentenced Wilson to 151 months

incarceration. The court also ordered that his sentence run concurrently with a

188-month sentence he received in an earlier related case (No. 07-20628-Cohn).1

In October 2016, Wilson filed a pro se motion to reduce his sentence under

18 U.S.C. § 3582(c)(2). He contended that Amendment 782 to the Sentencing

Guidelines, which retroactively reduced the base offense levels for drug offenders,

applied in his case. The government opposed the motion on the ground that

Amendment 782 did not lower his guidelines range because his offense level was

determined by the career offender guidelines provision, not the drug quantity table.

Wilson, represented by counsel, filed a reply. He acknowledged that he was a

career offender, but stated that the court had the authority to correct his sentence

and that the court intended that he serve a lower sentence than the one he served in

the earlier case.

The court granted Wilson’s motion. It stated that it had reviewed “the

record, Motion, related filings, relevant legal authorities, and factors listed under

18 U.S.C. § 3553(a)” and ordered that Wilson be resentenced to 120 months, to run

1 The sentence in his earlier case was later lowered to 120 months after Wilson received post-conviction relief under 28 U.S.C. § 2255. Wilson has completed that sentence. 3 Case: 17-11824 Date Filed: 06/18/2018 Page: 4 of 5

concurrently with his sentence in the earlier case. The government filed a motion

for reconsideration, which the court denied. This is the government’s appeal.

We review de novo the district court’s conclusions about the scope of its

legal authority under § 3582(c)(2). United States v. Colon, 707 F.3d 1255, 1258

(11th Cir. 2013). Section 3582(c)(2) provides that a court can modify a

defendant’s sentence “if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” A reduction is not authorized

under § 3582(c)(2) if the amendment “does not have the effect of lowering the

defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The

government contends that Amendment 782, which governs the drug quantity table

in § 2D1.1, does not authorize a reduction in this case because Wilson’s guideline

range was established under § 4B1.1.

The government is correct. We have held that “[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). That is the situation here: Amendment 782

reduced the base offense levels for drug quantities in § 2D1.1, but Wilson was

sentenced as a career offender under § 4B1.1. That means that Amendment 782

did not alter his guidelines range. See United States v. Lawson, 686 F.3d 1317,

4 Case: 17-11824 Date Filed: 06/18/2018 Page: 5 of 5

1321 (11th Cir. 2012) (denying a § 3582(c)(2) motion where the defendant was

“initially assigned a base offense level under § 2D1.1,” but his “total offense level

and guideline range . . . were based on § 4B1.1 . . . because he was a career

offender”). Wilson argues that we have not considered the situation where a

district court intended to sentence a defendant to a sentence no greater than the one

he faced in a related case. But Moore and Lawson are binding precedents, and he

cites no decision from the Supreme Court or this Court sitting en banc overruling

those precedents. See Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir.

2001) (“[Under the] prior panel precedent rule of this Circuit, the holding of the

first panel to address an issue is the law of this Circuit, thereby binding all

subsequent panels unless and until the first panel’s holding is overruled by the

Court sitting en banc or by the Supreme Court.”).

The district court erred in reducing Wilson’s sentence under § 3582(c)(2).

As a result, we vacate the court’s order reducing his custodial sentence and remand

with instructions that it reinstate his original 151-month sentence of imprisonment.

VACATED AND REMANDED.