FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 5, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15393

Non-Argument Calendar

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D. C. Docket No. 99-00001-CR-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DERRELL GAULDEN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

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(October 5, 2009)

Before EDMONDSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:
Derrell Gaulden, a pro se federal prisoner convicted of crack cocaine and

firearm offenses, appeals the district court’s denial of his motion for a sentence

reduction, 18 U.S.C. § 3582(c)(2). No reversible error has been shown; we affirm.

Gaulden’s original total offense level of 38 derived from a base offense level

of 36 for possession of at least 500 grams, but less than 1.5 kilograms of crack

cocaine, and a two-level enhancement for possession of a dangerous weapon. With

a criminal history category of II, Gaulden’s guidelines range was 262 to 327

months. The district court sentenced him to 327 months in addition to a

consecutive 60 months for carrying a firearm during and in relation to a drug

trafficking crime, 18 U.S.C. § 924(c).

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In his section 3582(c)(2) motion, Gaulden sought a sentence reduction

pursuant to both Amendments 599 and 706. The district court calculated

Gaulden’s new offense level at 36 with a resulting guidelines range of 210 to 262

months. After considering the 18 U.S.C. § 3553(a) factors relied on at Gaulden’s

original sentencing -- the large quantity of crack cocaine involved in his offenses

and the danger he presented to the community evidenced by his repeated and

threatened acts of violence -- the court chose not to lower Gaulden’s sentence.

On appeal, Gaulden argues he qualified for a reduction under Amendment

Gaulden also was convicted of a drive-by shooting offense and possession with intent to 1

distribute cocaine, for which his sentences ran concurrently to his crack cocaine sentences. 

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599 and that the district court erred by failing to consider the applicability of this

amendment. He also argues that the district court abused its discretion by not

lowering his sentence pursuant to Amendment 706. We review de novo the district

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court’s legal conclusions about the scope of its authority under the Sentencing

Guidelines in a section 3582(c)(2) proceeding. United States v. James, 548 F.3d

983, 984 (11th Cir. 2008). If a sentence reduction is authorized, we review the

district court’s decision to grant or deny a reduction for an abuse of discretion. Id.

at 984 n.1.

Under section 3582(c)(2), a district court has discretion to reduce a term of

imprisonment of an already incarcerated defendant if that defendant “has been

sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” 18 U.S.C. §

3582(c)(2). Amendment 599 retroactively prohibited certain firearm

enhancements under U.S.S.G. § 2K2.4. See U.S.S.G. § App. C, Amend. 599; see

also id. at Reason for Amend. (“[t]he amendment directs that no guideline weapon

enhancement should be applied when determining the sentence for the crime of

violence or drug trafficking offense underlying the [section] 924(c) conviction”).

Gaulden also argues that the district court violated his Sixth Amendment rights by not 2

appointing counsel for him in his section 3582(c)(2) proceedings. But a defendant does not have

a constitutional right to appointment of counsel to represent him on a motion to reduce sentence. 

See United States v. Webb, 565 F.3d 789, 795 (11th Cir. 2009).

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And Amendment 706 -- which became retroactive on 3 March 2008, U.S.S.G.

App. C, Amend. 713 (Supp. 1 May 2008) -- reduced by two the base offense levels

in crack cocaine sentences calculated pursuant to the drug quantity table, U.S.S.G.

§ 2D1.1(c).

A “district court must make two distinct determinations before deciding

whether to reduce a defendant’s sentence under” section 3582(c)(2). United States

v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998). First, the court must determine the

sentence it would have imposed, given the defendant’s amended guidelines range

and holding constant all other guidelines determinations made at the original

sentencing hearing. Id. Then, the court must consider the factors in section

3553(a) and determine, in its discretion, whether to reduce the defendant’s

sentence. Id.

Here, the district court made no mention of Amendment 599 in its order

denying Gaulden’s motion; but a review of the record makes clear that this

amendment did not apply to him. Gaulden received a two-level firearm

enhancement for several weapons discovered near his crack cocaine laboratory and

for the firearm involved in the drive-by shooting offense: these firearms were

connected to his crack cocaine offenses. See U.S.S.G. § 2D1.1(b)(1). But he did

not receive an enhancement for his conviction for possession with intent to

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distribute cocaine, which was the underlying offense for his section 924(c)

conviction. See United States v. Armstrong, 347 F.3d 905, 908 (11th Cir. 2003) (if

the defendant’s underlying sentence is not enhanced based on the involvement of a

weapon, Amendment 599 does not apply). So, because Amendment 599 did not

apply, the district court’s failure to address it was harmless error; and Gaulden’s

substantial rights were not affected. See United States v. Mathenia, 409 F.3d 1289,

1292 (11th Cir. 2005) (we will not remand based on a harmless error); United

States v. Hernandez, 160 F.3d 661, 670 (11th Cir. 1998) (“[t]o find harmless error,

we must determine that the error did not affect the substantial rights of the

part[y]”).

And we conclude that the district court abused no discretion in refusing to

reduce Gaulden’s sentence under Amendment 706. The court calculated correctly

Gaulden’s amended guidelines range by reducing his base offense level to the

corresponding drug quantity and keeping constant other sentencing calculations.

See U.S.S.G. § 2D1.1(c)(3). And the court considered certain section 3553(a)

factors -- specifically, the large quantity of drugs involved and the danger Gaulden

posed to the community based on his previous violence -- in concluding that

Gaulden was unentitled to a sentence reduction. The district court was permitted to

consider factors previously considered in imposing Gaulden’s original sentence.

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See Vautier, 144 F.3d at 762 (upholding a district court’s decision to deny a

section 3582(c)(2) motion for the same reasons it relied on to establish the original

sentence).

The district court complied with the required two-step resentencing

procedure and sufficiently explained why the court refused to reduce Gaulden’s

sentence.

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AFFIRMED.

Gaulden’s challenges to his criminal history category and the drug quantity attributable 3

to him are beyond scope of a section 3582(c)(2) proceeding. See United States v. Bravo, 203

F.3d 778, 781 (11th Cir. 2000) (explaining that a sentencing reduction under section 3582(c)(2)

is not a de novo resentencing and “all original sentencing determinations remain unchanged with

the sole exception of the guideline range that has been amended since the original sentencing”). 

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