See U.S.S.G. § 2D1.1. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-41314

Summary Calendar

UNITED STATES OF AMERICA, 

Plaintiff - Appellee

v.

ANTHONY LEROY ANDERSON, 

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:

Anthony Leroy Anderson appeals the district court’s denial of his motion

to reduce his sentence under 18 U.S.C. § 3582(c). We affirm.

I.

Anderson pleaded guilty to conspiracy to possess with intent to distribute

five or more grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B)(iii), and 846. As a sentencing default, district courts use § 2D1.1 of

the Sentencing Guidelines to set the base offense level for drug criminals. The 1

United States Court of Appeals

Fifth Circuit

F I L E D

December 21, 2009

Charles R. Fulbruge III

Clerk
No. 08-41314

See U.S.S.G. § 2D1.1(c). 2

“A defendant is a career offender if (1) the defendant was at least eighteen 3

years old at the time the defendant committed the instant offense of conviction;

(2) the instant offense of conviction is a felony that is either a crime of violence

or a controlled substance offense; and (3) the defendant has at least two prior

felony convictions of either a crime of violence or a controlled substance offense.”

U.S.S.G. § 4B1.1(a).

See U.S.S.G. § 4B1.1(b). 4

2

greater the quantity of drugs, the higher the base level – and, in turn, the 2

longer the term of imprisonment.

Career offenders, though, may instead fall under § 4B1.1 of the Guidelines,

which can impose a lengthier sentence on recidivists. Specifically, if the base 3

level calculated under the career offender provision exceeds the base level

calculated under the general drug crimes provision, then the career offender

base level prevails. The base level calculation under the career offender

provision does not depend on the amount of drugs involved in the offense.

Rather, the base offense level is moored to the statutory maximum penalty of the

underlying crime.4

In 2003, the district court sentenced Anderson as a career offender under

§ 4B1.1 to 147 months in prison. The court had calculated Anderson’s base level

under the general drug guideline § 2D1.1 as 28 – and his base level under the

career offender guideline § 4B1.1 as 34. Because the career offender base level

exceeded the general base level, the career offender sentencing range governed.

Five years later, Anderson filed a motion under 18 U.S.C. § 3582(c)(2)

seeking to reduce his sentence – on the idea that a retroactive sentencing

amendment applied to his conviction involving crack cocaine. Specifically, the

United States Sentencing Commission – though Amendment 706 – reduced the
No. 08-41314

“The Sentencing Commission amended the guidelines applicable to 5

cocaine base (i.e., crack cocaine) offenses by raising the quantity required to

trigger each base offense level, effectively lowering each respective sentencing

range. . . . That amendment was then made retroactive by a subsequent

amendment to the guidelines.” United States v. Evans, 2009 WL 3647042, *1

n.1; 2009 U.S. App. LEXIS 24399, *2 n.1 (5th Cir. 2009).

See United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997) (“[W]e note 6

that the decision whether to reduce a sentence is left to the sound discretion of

the trial court. Thus, we review for abuse of discretion only.”).

U.S.S.G. § 1B1.10(a)(1). 7

3

applicable base levels under § 2D1.1 for crack cocaine offenses. Anderson 5

argued that his base level under § 2D1.1 would have been 26 – not 28. He

conceded, however, that his base level under § 4B1.1 would not change. The

district court summarily denied Anderson’s motion.

II.

A.

Anderson urges that the district court abused its discretion by not

reducing his sentence. He points to U.S.S.G. § 1B1.10, which states: “In a case 6

in which a defendant is serving a term of imprisonment, and the guideline range

applicable to that defendant has subsequently been lowered as a result of an

amendment to the Guidelines Manual . . . the court may reduce the defendant’s

term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).” Because 7

Amendment 706 lowered the guideline range applicable to crack cocaine

offenders – and because Anderson pleaded guilty to a crack cocaine violation –

he contends that he deserves a reduced sentence.

The district court, however, had not during sentencing applied the crack

cocaine guideline range to Anderson. Instead, the court had calculated

Anderson’s guideline range pursuant to his career offender status. The sentence

did not derive from the amount of crack cocaine involved in his offense. The
No. 08-41314

United States v. Jones, 328 F. App’x 916, 918 (5th Cir. 2009) 8

(unpublished).

See United States v. Tatum, 2009 WL 3241526; 2009 U.S. App. LEXIS 9

22381 (5th Cir. 2009) (unpublished); United States v. Jackson, 335 F. App’x 508

(5th Cir. 2009) (unpublished); United States v. Medlock, 335 F. App’x 430 (5th

Cir. 2009) (unpublished); United States v. Haynes, 335 F. App’x 420 (5th Cir.

2009) (unpublished); United States v. Bradford, 334 F. App’x 626 (5th Cir. 2009)

(unpublished); United States v. Bolden, 2009 WL 577719; 2009 U.S. App. LEXIS

4580 (5th Cir. 2009) (unpublished); United States v. Caldwell, 325 F. App’x 383

(5th Cir. 2009) (unpublished); United States v. Ingram, 325 F. App’x 382 (5th

Cir. 2009) (unpublished); United States v. Jones, 328 F. App’x 916 (5th Cir. 2009)

(unpublished); United States v. Woods, 321 F. App’x 344 (5th Cir. 2009)

(unpublished).

U.S.S.G. § 1B1.10(b)(2)(A). 10

See United States v. Booker, 543 U.S. 220 (2005). Anderson – at least 11

tangentially – raised his Booker argument in the district court. See Docket No.

37 at 11 n.7.

4

district court, consequently, did not abuse its discretion in denying Anderson’s

motion for resentencing, because he “was not sentenced based on a sentencing

range that was subsequently lowered by the Sentencing Commission.”8

The crack cocaine guideline amendments do not apply to prisoners

sentenced as career offenders. We note that – although this court has never

published a binding decision on the issue – this year we have uniformly rejected

arguments identical to Anderson’s in at least 10 persuasive unpublished

decisions. The claim has no merit in either law or logic. 9

B.

Anderson quizzically asserts – in the alternative – that the district court

erred by treating U.S.S.G. § 1B1.10 as mandatory. Section 1B1.10 states that

“the court shall not reduce the . . . term of imprisonment . . . to a term that is less

than the minimum of the amended guideline range.” He claims that this 10

provision violates Booker, which held the sentencing guidelines to be advisory.

11
No. 08-41314

United States v. Evans, 2009 WL 3647042, *1; 2009 U.S. App. LEXIS 12

24399, *4 (5th Cir. 2009) (citing United States v. Doublin, 572 F.3d 235, 238 (5th

Cir. 2009)) (internal quotation marks and citations omitted).

See United States v. Evans, 2009 WL 3647042, *2; 2009 U.S. App. LEXIS 13

24399, *5-6 (5th Cir. 2009).

The Public Defender’s briefs in Evans and in this case virtually mimic 14

each other. We do not mention this in an effort to criticize, as the lawyers could

not know which case the court would first resolve. Instead, we mean only to

illustrate that we have already answered the precise question that Anderson

5

It is unclear, as a threshold matter, that the district court relied on §

1B1.10, because no “amended guideline range” applies to Anderson. Regardless,

Anderson’s “argument is foreclosed by United States v. Doublin . . . in which we

joined the nearly unanimous position of our sister circuits in holding that Booker

does not alter the mandatory character of . . . § 1B1.10’s limitations on sentence

reductions. Thus, a district court cannot reduce a sentence below the minimum

provided in the amended guideline range.”12

C.

Lastly, Anderson urges that U.S.S.G. § 1B1.10’s mandatory nature violates

the separation of powers doctrine. Anderson did not present this argument to

the district court, but tries to escape plain error review by arguing that he never

had a chance to object to the district court’s summary denial.

Again, it is unclear how § 1B1.10 bears on this case in which no “amended

guideline range” applies to Anderson. Notwithstanding this threshold

impediment, circuit precedent would foreclose Anderson’s entire argument –

including that plain error should not attach. In United States v. Evans, the

prisoner made the exact same separation of powers sentencing appeal as

Anderson does here. The prisoner in Evans, too, tried to avoid plain error 13

review by suggesting that he had had no opportunity to object to the district

court’s summary denial of his § 3582(c)(2) motion. This court found the 14
No. 08-41314

raises.

See United States v. Evans, 2009 WL 3647042, *2-3; 2009 U.S. App. 15

LEXIS 24399, *7-8 (5th Cir. 2009) (internal citations and quotation marks

omitted).

6

prisoner’s contentions wanting; reviewed for plain error; and found none.

Anderson presents the same case:

The mandatory nature of § 1B1.10 was an issue that [Anderson]

could have anticipated. . . . [He] could have mentioned separation

of powers in his § 3582(c)(2) motion brief, but, for whatever reason,

he chose not to. And because he did not present it to the district

court, we review it for plain error. . . . Given the lack of precedent

suggesting a separation-of-powers problem with . . . § 1B1.10, the

alleged error was not obvious . . . .

15

III.

AFFIRMED.