United States v. Mark Bellamy
Opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-6235
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK BELLAMY, a/k/a Big Mark,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:03-cr-00474-RBH-3)
Submitted: June 14, 2018 Decided: June 27, 2018
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Mark Bellamy, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Mark Bellamy appeals from the district court’s text order denying his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2) (2012). The district court determined that
Bellamy’s career offender status under the Sentencing Guidelines left him ineligible for a
sentence reduction. Because we conclude that Bellamy was eligible for a sentence
reduction, we vacate the court’s text order and remand for further proceedings.
Bellamy pled guilty to conspiracy to possess with intent to distribute 50 grams or
more of cocaine base (crack cocaine), and 5 kilograms or more of cocaine. See 21 U.S.C.
§§ 841(b)(1)(A), 846 (2012). The presentence report indicated that Bellamy was
responsible for 11 kilograms of crack cocaine, resulting in a base offense level of 38. The
PSR further indicated that Bellamy was a career offender under U.S. Sentencing Guidelines
Manual § 4B1.1 (2002). However, his base offense level did not change because it was
higher than the career offender base offense level. Because 3 levels were deducted for
acceptance of responsibility, Bellamy’s total offense level was 35. Based on Bellamy’s
criminal history and his career offender status, he was placed in criminal history category
VI. With a total offense level of 35 and criminal history category of VI, Bellamy’s
Guidelines sentence was 292 to 365 months’ imprisonment. Bellamy was sentenced to life
imprisonment.
In 2006, Bellamy’s sentence was vacated and remanded to the district court for
resentencing after the Government indicated that there was an error in the 18 U.S.C. § 851
(2012) notice. The district court resentenced Bellamy to 292 months’ imprisonment, the
2 low end of the Guidelines sentence, which this court affirmed. United States v. Bellamy,
336 F. App’x 285 (4th Cir. 2009) (No. 06-5094).
In May 2017, Bellamy filed a motion for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2), claiming that he was entitled to resentencing based on retroactive application
of Amendment 782 to the Guidelines, which reduced the offense levels for crack cocaine
offenses. According to Bellamy, his total offense level should be 33 and his Guidelines
sentence should be 235 to 293 months’ imprisonment. The district court denied the motion,
stating that Bellamy’s career offender status prevented the court from reducing his
sentence.
A district court may reduce a prison sentence if the defendant’s Guidelines
sentencing range “has subsequently been lowered by the Sentencing Commission” and the
reduction “is consistent with applicable policy statements.” 18 U.S.C. § 3582(c)(2). “In
considering whether and by how much to reduce a sentence under § 3582(c)(2), a district
court follows a two-step inquiry.” United States v. Muldrow, 844 F.3d 434, 438 (4th Cir.
2016) (citing Dillon v. United States, 560 U.S. 817, 826 (2010)). The court first follows
the Sentencing Commission’s instructions in USSG § 1B1.10 (2016) to determine whether
the prisoner is eligible for a sentence reduction and the extent of the reduction authorized.
Id. A reduction is not authorized under § 3582(c)(2) if “[a]n amendment listed in
subsection (d) does not have the effect of lowering the defendant’s applicable guideline
range.” USSG § 1B1.10(a)(2)(B). “To determine whether a particular amendment has that
effect, the sentencing court must ‘substitute only the amendments’ rendered retroactive by
the Commission and ‘leave all other guideline application decisions unaffected.’” United
3 States v. Williams, 808 F.3d 253, 257 (4th Cir. 2015) (quoting USSG 1B1.10(b)(1)). The
district court must “determine the amended guideline range that would have been
applicable to the defendant if the amendment(s) to the guidelines listed in subsection (d)
had been in effect at the time the defendant was sentenced.” USSG § 1B1.10(b)(1). “At
step two, a district court considers relevant sentencing factors to determine whether, in its
discretion, a reduction ‘is warranted in whole or in part under the particular circumstances
of the case.’” Muldrow, 844 F.3d at 438 (quoting Dillon, 560 U.S. at 827). We review a
court’s decision for abuse of discretion and its ruling on the scope of its legal authority de
novo. Id. at 437.
Although Bellamy was determined to be a career offender, his Guidelines range was
determined with reference to the quantity of drugs attributed to him under USSG § 2D1.1
because the offense level relating to the career offender designation was lower. See USSG
§ 4B1.1(b) (“[I]f the offense level for a career offender . . . is greater than the offense level
otherwise applicable, the offense level [generated by the career offender designation] shall
apply.”). Bellamy’s offense level determined by reference to the drug quantity was 38; the
career offender guideline was 37. Thus, Bellamy’s sentence was, in fact, based on a
guideline range that was subsequently lowered by Amendment 782. Accordingly, the
district court’s finding that Bellamy was ineligible for a sentence reduction is erroneous.
Applying the amended drug quantity table in § 2D1.1 results in a base offense level
of 36, based on 11 kilograms of crack cocaine. Bellamy’s career offender guideline
requires a base offense level of 37. Because the offense level under the career offender
guideline is higher than the level determined by reference to the drug quantity, Bellamy’s
4 base offense level can be no lower than 37. After a 3-level reduction for acceptance of
responsibility, Bellamy’s total offense level would be 34 and, at criminal history category
VI, his Guidelines sentencing range would be 262 to 327 months. Because application of
Amendment 782 to Bellamy’s Guidelines sentence results in a sentencing range that is
lower than the range applicable before the amendment, Bellamy is eligible for a sentence
reduction under § 3582(c). Because the district court mistakenly concluded that it was not
so authorized, we vacate the district court’s order and remand for the district court to
determine whether the reduction should be applied in Bellamy’s case. * We dispense with
oral argument because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional process.
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