USA v. Arnell Devon Elrod

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 4, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-13647
Non-Argument Calendar
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D. C. Docket No. 06-00464-CR-T-17-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNELL DEVON ELROD,
a.k.a. Nellie,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 4, 2010)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:

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Arnell Devon Elrod appeals from the district court’s order finding that he
was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and
Amendment 706 to the Sentencing Guidelines, which retroactively reduced the
base offense levels applicable to crack cocaine offenses. On appeal, he argues that
the district court erred in concluding that he was not eligible for a sentence
reduction based on its finding that he was responsible for at least 4.5 kilograms of
crack cocaine. He asserts that, at his original sentencing hearing, the court found
only that he was responsible for 1.5 kilograms or more of crack cocaine, and did
not specify a greater drug quantity. Elrod also argues that, even if he were
responsible for at least 4.5 kilograms of crack cocaine, he was still eligible for a
sentence reduction because the Sentencing Guidelines should be treated as
advisory in § 3582(c)(2) proceedings.
For the reasons set forth below, we affirm.
I.
In June 2007, Elrod pled guilty to: (1) conspiracy to possess with intent to
distribute 50 grams or more of crack cocaine and a detectable quantity of cocaine,
in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(iii), and (b)(1)(C)
(“Count 1”); and (2) using and carrying a firearm during and in relation to a drug
trafficking offense, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (“Count 3”).
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Count 1 of the indictment alleged that the conspiracy to distribute cocaine and
crack cocaine involved Elrod and nine other defendants, including Trinidad
Hamilton.
In September 2007, the district court held a sentencing hearing regarding
codefendant Hamilton. The court and the parties agreed that Hamilton was
responsible for eight kilograms of crack cocaine. Specifically, the court stated,
“[The] [c]ourt will make a finding of eight kilograms in this defendant’s case. And
you can refer to that in other sentencings.”
According to Elrod’s presentence investigation report (“PSI”), he and his co-
conspirators operated a drug trafficking scheme in which they converted powder
cocaine into crack cocaine, and then delivered the crack cocaine to customers.
Elrod was responsible for taking and delivering drug orders. The officer
determined that each co-conspirator should be responsible for the entire amount of
crack cocaine distributed by the group because they were all part of a joint scheme
to sell crack cocaine. The probation officer found that Elrod was responsible for at
least 1.5 kilograms of crack cocaine, which rendered a base offense level of 38
under U.S.S.G. § 2D1.1(c). After reducing Elrod’s base offense level by three
levels for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b), the
officer reached a total offense level of 35 which, when combined with Elrod’s
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criminal history category of III, produced a guideline range of 210 to 262 months’
imprisonment.
At his sentencing hearing in October 2007, Elrod stated that he had no
objections to the PSI, and the court adopted the PSI’s factual findings and
guideline applications. After reducing Elrod’s offense level for his substantial
assistance to the government, the court sentenced him to 97 months’ imprisonment
as to Count 1, and to a mandatory consecutive term of 7 years’ imprisonment as to
Count 3, pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). Accordingly, Elrod was
sentenced to a total term of 181 months’ imprisonment.
In March 2009, the district court sua sponte entered an order noting that
Elrod could be eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and
Amendment 706 to the Sentencing Guidelines. Both the U.S. Probation Office and
the government responded that Elrod was not eligible for a sentence reduction
because he was responsible for at least 4.5 kilograms of crack cocaine. The
Probation Office and the government, however, cited different facts and arguments
in support of their contentions that Elrod’s case involved 4.5 kilograms of crack
cocaine.
The court entered an order finding that Elrod was not eligible for a sentence
reduction under § 3582(c)(2) and Amendment 706. The court explained that it
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found the responses filed by the government and probation to be persuasive, and
incorporated these responses into its order.
III.
“We review de novo a district court’s conclusions about the scope of its legal
authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983,
984 (11th Cir. 2008). A district court may modify a term of imprisonment in the
case of a defendant who was 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). Any reduction, however, must be
“consistent with applicable policy statements issued by the Sentencing
Commission.” Id. Even after the Supreme Court’s decision in Kimbrough, a
district court’s discretion in a § 3582(c)(2) proceeding is limited by the Sentencing
Commission’s policy statements. United States v. Melvin, 556 F.3d 1190, 1192-94
(11th Cir.), cert. denied, 129 S.Ct. 2383 (2009).
Where a defendant’s guideline range remains unchanged by Amendment
706 because his offense involved 4.5 kilograms or more of crack cocaine, a district
court is not authorized to reduce the defendant’s sentence under § 3582(c)(2).
Jones, 548 F.3d at 1369. In a § 3582(c)(2) proceeding, a district court may rely on
the undisputed factual findings set forth in the PSI used at the defendant’s original
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sentencing. United States v. Davis, No. 08-16617, manuscript op. at 6 (11th Cir.
Nov. 18, 2009). We may affirm a district court’s decision based on any ground
supported by the record. United States v. Simmons, 368 F.3d 1335, 1342 (11th Cir.
2004).
Here, the district court’s reason for finding that Elrod was not eligible for a
sentence reduction is not clear. While the court incorporated the government’s and
the U.S. Probation Office’s responses into its order denying relief, the government
and the U.S. Probation Office relied on different facts and arguments in their
responses, and the court’s order does not indicate which of these arguments it
found to be persuasive.
We, however, may still affirm the district court’s order based on the record.
During Hamilton’s sentencing, the court found that the conspiracy involved eight
kilograms of crack cocaine. In addition, at Elrod’s original sentencing, he did not
object to the probation officer’s recommendation that each co-conspirator be held
responsible for the entire amount of crack cocaine involved in the conspiracy. As a
result, the record shows that Elrod was responsible for at least 4.5 kilograms of
crack cocaine. Finally, Elrod’s argument that the district court had authority to
reduce his sentence under an advisory Guideline system and Kimbrough is
foreclosed by our decision in Melvin.
AFFIRMED.
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