United States v. Kevin Lamar Ratliff

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 14, 2020
• Docket: 20-12175
• Status: Unpublished

Opinion

Case: 20-12175 Date Filed: 09/14/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12175 Non-Argument Calendar ________________________

D.C. Docket No. 4:08-cr-00038-RH-GRJ-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEVIN LAMAR RATLIFF,

Defendant-Appellant.

________________________

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

(September 14, 2020)

Before WILSON, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

Kevin Ratliff, a federal prisoner proceeding pro se, appeals the district court’s

denial of his motion to reduce sentence under 18 U.S.C. § 3582(c)(2). The district Case: 20-12175 Date Filed: 09/14/2020 Page: 2 of 6

court concluded that Ratliff was ineligible for a sentence reduction because, as his

guideline range was based on his career offender enhancement, Amendment 782 did

not lower his guideline range. The government has moved for summary affirmance

and to stay the briefing schedule.

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). 1

When appropriate, we will review de novo the district court’s legal

conclusions about the scope of its authority under 18 U.S.C. § 3582(c)(2). United

States v. Lawson, 686 F.3d 1317, 1319 (11th Cir. 2012). However, if § 3582(c)(2)

applies, we review the district court’s decision to grant or deny a sentence reduction

only for abuse of discretion. United States v. Caraballo-Martinez, 866 F.3d 1233,

1238 (11th Cir. 2017). Claims not briefed on appeal are deemed abandoned and

issues raised for the first time on appeal are deemed waived. Access Now, Inc. v.

Sw. Airlines Co., 385 F.3d 1324, 1330-31 (11th Cir. 2004).

1 We are bound by cases decided by the former Fifth Circuit before October 1, 1981. Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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A district court may modify a defendant’s term of imprisonment if 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). A defendant is

eligible for a sentence reduction under § 3582(c)(2) when an amendment listed in

U.S.S.G. § 1B1.10(d) lowers his guideline range as calculated by the sentencing

court. U.S.S.G. § 1B1.10 comment. (n.1(A)). Under § 3582(c)(2), a district court

must first recalculate the defendant’s sentence under the amended guideline range

and, in doing so, “[a]ll other guideline application decisions made during the original

sentencing remain intact.” United States v. Bravo, 203 F.3d 778, 780 (11th Cir.

2000).

A district court is not authorized to reduce a defendant’s sentence under

§ 3582(c)(2) where a retroactively applicable guidelines amendment reduces his

base offense level but does not alter the guideline range upon which his sentence

was based. United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008).

Specifically, when a drug offender is sentenced under the career offender guideline

in § 4B1.1, his guideline range is calculated based on § 4B1.1, not § 2D1.1. Lawson,

686 F.3d at 1321. Because an amendment to § 2D1.1 does not affect a career

offender’s guideline range, he is ineligible for a sentence reduction under

§ 3582(c)(2) based on an amendment to that guideline. See id. (affirming the denial

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of a § 3582(c)(2) motion based on Amendment 750 to the Sentencing Guidelines,

U.S.S.G. App. C., Amend. 750 (2011)).

Section 2D1.1(c) of the Sentencing Guidelines provides base offense levels

for drug offenses based on the type and quantity of drug involved. See U.S.S.G.

§ 2D1.1(c). Amendment 782 to the Sentencing Guidelines altered the base offense

levels applicable to certain drug offenses. See U.S.S.G. App. C, Amend. 782 (2014).

As an initial matter, Ratliff has abandoned any challenge to the district court’s

denial of his § 3582(c)(2) motion based on Amendments 706 and 750 2 by failing to

present any arguments as to those amendments on appeal. See Access Now, Inc.,

385 F.3d at 1330-31. Ratliff also waived our consideration of his Alleyne v. United

States 3 and Molina-Martinez v. United States 4 argument by raising it for the first

time on appeal. See Access Now, Inc., 385 F.3d at 1330-31. And we may not

consider the arguments based on Sessions v. Dimaya 5 and United States v. Davis6

that Ratliff raised for the first time in response to the government’s motion to

dismiss. See Access Now, Inc., 385 F.3d at 1330-31.

2 U.S.S.G. App. C, Amend. 706, 750. 3 570 U.S. 99 (2013). 4 136 S. Ct. 1338 (2016). 5 138 S. Ct. 1204 (2018). 6 139 S. Ct. 2319 (2019).

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Even if we considered these arguments, however, they are without merit.

Section 3582(c)(2) authorizes only a limited resentencing based on an amendment

to the applicable guideline range and, therefore, the district court was without

authority to consider claims based on Supreme Court decisions in such a proceeding.

See Bravo, 203 F.3d at 780-81.

Moreover, the government’s position that Ratliff was ineligible for a sentence

reduction based on Amendment 782 due to his career offender enhancement is

correct as a matter of law. See Groendyke Transp., Inc., 406 F.2d at 1162. Ratliff

is correct that Amendment 782 may have reduced his base offense level under

§ 2D1.1 as it was calculated based on attributable drug quantity. However, his

guideline range was unaffected by Amendment 782 because his total adjusted

offense level and criminal history category were determined under § 4B1.1 rather

than § 2D1.1. See Lawson, 686 F.3d at 1321. Thus, because Amendment 782 did

not impact the career offender guideline in § 4B1.1, Ratliff was ineligible for a

sentence reduction under § 3582(c)(2) based on that amendment. See Moore, 541

F.3d at 1330.

There is no substantial question that the district court lacked authorization to

reduce Ratliff’s sentence based on Amendment 782 and properly denied Ratliff’s

§ 3582(c)(2) motion. See Groendyke Transp., Inc., 406 F.2d at 1162. We therefore

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GRANT the government’s motion for summary affirmance and DENY AS MOOT

its motion to stay the briefing schedule.