Argued and Submitted, Pasadena, California March 5,
Appeal from the United States District Court for the Central District of California. D.C. No. 2:07-cr-00614-SJO-1. S. James Otero, District Judge, Presiding.
Jay A. Nelson (argued), Coleman & Balogh LLP, San Francisco, California; Benjamin L. Coleman, Coleman & Balogh LLP, San Diego, California, for Defendant-Appellant.
Jean-Claude Andre (argued), Assistant United States Attorney, Office of the United States Attorney, Los Angeles, California; André Birotte Jr., United States Attorney, Denise D. Willet, Assistant United States Attorney, Chief, Santa Ana Branch, Fred W. Slaughter, Assistant United States Attorney, Office of the United States Attorney, Santa Ana, California, for Plaintiff-Appellee.
Before: Ferdinand F.
Fernandez, Susan P. Graber, and Mary H. Murguia, Circuit Judges.
Deon Andre Charles, a federal prisoner serving a 204-month sentence, appeals the district court's denial of his motion for a reduction of sentence. See 18 U.S.C. § 3582(c)(2). He contends that he is eligible for a sentence reduction because of the Fair Sentencing Act of 2010 (" FSA" ), Pub. L. No. 111-220, 124 Stat. 2372, and United States Sentencing Guidelines (" Guidelines" ) Amendment 750. We disagree and affirm.
On July 6, 2007, pursuant to a plea agreement, Charles entered a guilty plea
to the crimes of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (count one) and possession with the intent to distribute at least 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) (count two). His plea agreement stipulated a total offense level of 32, absent a determination that Charles was a career offender.
At sentencing the district court held that Charles was a career offender. See USSG § 4B1.1(a) (Nov. 2007) (" Career Offender Guideline" ). As a result, it determined that Charles's base offense level under the Career Offender Guideline was 37, based on the statutory maximum sentence of life imprisonment under 21 U.S.C. § 841. After a three-level reduction for acceptance of responsibility, the court held that Charles's total offense level was 34. As a career offender his criminal history category was VI. USSG § 4B1.1(b). After considering the relevant factors under 18 U.S.C. § 3553(a), the court sentenced Charles as a career offender to a below-Guidelines term of 204 months of imprisonment on count two and 120 months on count one, to be served concurrently.
Charles subsequently filed a notice of appeal and challenged his sentence. He argued that the district court had erred in finding that he was a career offender. On September 9, 2009, we affirmed his sentence and held that " the district court did not commit plain error in determining that Charles is a career offender under ...