UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-7311

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KERRY DONNELL LEE, JR., a/k/a Skinny,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of Virginia, at Abingdon. James P. Jones, District 

Judge. (1:08-cr-00024-JPJ-7)

Submitted: February 27, 2017 Decided: March 7, 2017

Before NIEMEYER and SHEDD, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Kerry Donnell Lee, Jr., Appellant Pro Se. Jennifer R. 

Bockhorst, Zachary T. Lee, Assistant United States Attorneys, 

Mary Kathleen Carnell, OFFICE OF THE UNITED STATES ATTORNEY, 

Abingdon, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Kerry Donnell Lee, Jr., appeals the district court’s order 

denying his 18 U.S.C. § 3582(c)(2) (2012) motion for a reduction 

of his sentence. Lee sought relief under Amendment 750 and 

Amendment 782 (collectively “the Amendments”) of the U.S. 

Sentencing Guidelines Manual (“USSG”), both of which lowered the 

base offense levels for drug offenses involving cocaine base. 

See USSG § 2D1.1(c) (2015); USSG app. C, amends. 750, 782. The 

district court concluded that Lee was not entitled to the 

benefit of the Amendments because he was sentenced as a career 

offender. Our review of the record reveals that, although Lee 

qualified as a career offender, see USSG § 4B1.1 (2007), he was 

not sentenced as a career offender. Nevertheless, for the 

reasons that follow, we conclude that the Amendments would not 

have the effect of lowering Lee’s Guidelines sentencing range. 

We accordingly affirm. See United States v. Smith, 395 F.3d 

516, 519 (4th Cir. 2005) (holding that we “may affirm on any 

grounds apparent from the record”).

Under § 3582(c)(2), the district court may reduce the 

sentence of a defendant who “has been sentenced to a term of 

imprisonment based on a sentencing range that has subsequently 

been lowered by the Sentencing Commission.” United States v. 

Williams, 808 F.3d 253, 257 (4th Cir. 2015) (internal quotation 

marks omitted). To determine whether a particular amendment has 
3

the effect of lowering a defendant’s applicable Guidelines 

sentencing range, “the sentencing court must substitute only the 

amendments rendered retroactive by the Commission and leave all 

other guideline application decisions unaffected.” Id.

(internal quotation marks omitted). “Guidelines Amendments 750 

and 782 lowered the base offense levels assigned to different 

amounts of cocaine base,” and both amendments are retroactive. 

United States v. Peters, 843 F.3d 572, 575 (4th Cir. 2016). 

“Amendment 750 increased the minimum quantity of cocaine base 

necessary to trigger the maximum base offense level [of 38] from 

4.5 to 8.4 kilograms.” Id. “Amendment 782 again raised the 

requisite amount of cocaine base from 8.4 to 25.2 kilograms.” 

Id. Thus, “[f]or defendants responsible for at least 25.2 

kilograms of cocaine base, Amendment 782 has no effect; the 

maximum base offense level (38 levels) still applies.” Id.

Lee was held responsible for 51.35 kilograms of cocaine 

base; thus, neither Amendment 750 nor Amendment 782 has any 

effect on his base offense level. Simply stated, Lee’s sentence 

was not “based on a sentencing range that has subsequently been 

lowered by the Sentencing Commission.” See 18 U.S.C. 

§ 3582(c)(2). Had Lee been sentenced after the Amendments went 

into effect, his base offense level would remain 38, the career 

offender enhancement would not apply, and his Guidelines 

sentencing range would remain the same. Therefore, neither 
4

Amendment 750 nor Amendment 782 has the effect of lowering Lee’s 

Guidelines sentencing range, and Lee is not entitled to a 

sentence reduction.

Because Lee is ineligible for a sentence reduction under 

§ 3582(c)(2), we affirm the district court’s denial of relief on 

this alternate ground. We dispense with oral argument because 

the facts and legal contentions are adequately presented in the 

materials before this court and argument would not aid the 

decisional process.

AFFIRMED