[DO NOT PUBLISH]
`
`IN THE UNITED STATES COURT OF APPEALS
`
`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 07-12590
`Non-Argument Calendar
`________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`DEC 14, 2007
`THOMAS K. KAHN
`CLERK
`
`D. C. Docket No. 98-00002-CR-KD
`
`UNITED STATES OF AMERICA,
`
`
`
`
`
`
`PATRICK THOMAS ENRIGHT,
`
`
`Plaintiff-Appellee,
`
`versus
`
`Defendant-Appellant.
`
`________________________
`
`Appeal from the United States District Court
`for the Southern District of Alabama
`_________________________
`
`(December 14, 2007)
`
`Before BIRCH, DUBINA and PRYOR, Circuit Judges.
`
`PER CURIAM:
`
`Patrick Enright, a pro se federal prisoner, appeals the denial of his motion
`
`
`
`IN THE UNITED STATES COURT OF APPEALS
`
`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 07-12590
`Non-Argument Calendar
`________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`DEC 14, 2007
`THOMAS K. KAHN
`CLERK
`
`D. C. Docket No. 98-00002-CR-KD
`
`UNITED STATES OF AMERICA,
`
`
`
`
`
`
`PATRICK THOMAS ENRIGHT,
`
`
`Plaintiff-Appellee,
`
`versus
`
`Defendant-Appellant.
`
`________________________
`
`Appeal from the United States District Court
`for the Southern District of Alabama
`_________________________
`
`(December 14, 2007)
`
`Before BIRCH, DUBINA and PRYOR, Circuit Judges.
`
`PER CURIAM:
`
`Patrick Enright, a pro se federal prisoner, appeals the denial of his motion
`
`
`
`for a reduction of his sentence. See 18 U.S.C. § 3582(c)(2). In 1997 and 1998,
`
`Enright pleaded guilty to three counts of bank robbery, see 18 U.S.C. § 2113(a),
`
`and one count of possession of a firearm by a convicted felon, see 18 U.S.C. §
`
`922(g), and was sentenced to 180 months of imprisonment. Enright argues that
`
`Amendments 591 and 599 to the United States Sentencing Guidelines provide a
`
`basis to reduce his sentence. We disagree with Enright and affirm.
`
`We review the decision of a district court not to reduce a sentence, see 18
`
`U.S.C. § 3582(c)(2), for an abuse of discretion. United States v. Moreno, 421 F.3d
`
`1217, 1219 (11th Cir. 2005). A court ordinarily “may not modify a term of
`
`imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). A court may,
`
`however, reduce the term of imprisonment when the sentencing range on which the
`
`sentence was based “has subsequently been lowered by the Sentencing
`
`Commission,” the court has considered “the factors set forth in [18 U.S.C.] section
`
`3553(a) to the extent that they are applicable,” and “a reduction is consistent with
`
`applicable policy statements issued by the Sentencing Commission.” Id. §
`
`3582(c)(2).
`
`The applicable policy statement, United States Sentencing Guideline §
`
`1B1.10(a), provides that a reduction in sentence is warranted when a guideline
`
`range has been lowered for a listed amendment:
`
`2
`
`
`
`Where 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 listed
`in subsection (c) below, a reduction in the defendant’s term of
`imprisonment is authorized under 18 U.S.C. § 3582(c)(2). If none of
`the amendments listed in subsection (c) is applicable, a reduction in
`the defendant’s term of imprisonment . . . is not consistent with this
`policy statement and thus is not authorized.
`
`
`United States Sentencing Guidelines § 1B1.10(a) (Nov. 2006). Amendments 591
`
`and 599 are listed as amendments covered by the policy statement. Id. §
`
`1B1.10(c).
`
`Enright first argues that the upward departure imposed by the district court
`
`based on its finding that the criminal history category calculated in the presentence
`
`investigation report did not “adequately reflect the seriousness of [Enright’s] past
`
`criminal conduct or the likelihood that [Enright would] commit other crimes,” see
`
`U.S.S.G. § 4A1.3 (Nov. 1997), violated Amendment 591. Amendment 591
`
`became effective November 1, 2000, and modified section 1B1.1(a) of the
`
`Sentencing Guidelines by replacing the existing language with the following rule
`
`for the initial selection of the offense guideline: “Determine, pursuant to § 1B1.2
`
`(Applicable Guidelines), the offense guideline section from Chapter Two (Offense
`
`Conduct) applicable to the offense of conviction. See § 1B1.2.” U.S.S.G. app. C,
`
`amend. 591 (Nov. 2006). “Amendment 591requires that the initial selection of the
`
`offense guideline be based only on the statute or offense of conviction rather than
`
`3
`
`
`
`on judicial findings of actual conduct not made by the jury.” Moreno, 421 F.3d at
`
`1219.
`
`The district court did not abuse its discretion when it rejected Enright’s
`
`argument. Amendment 591 addressed only the initial selection of the appropriate
`
`offense guideline from Chapter 2 of the Sentencing Guidelines and did not affect
`
`the authority of a district court to depart upward from the Guidelines range under
`
`Chapter 4 of the Sentencing Guidelines. The district court identified the applicable
`
`Guidelines range from Chapter 2 based on Enright’s offenses of conviction and
`
`then departed upward from that range under Chapter 4 of the Sentencing
`
`Guidelines. To the extent Enright argues that the district court erred when it
`
`calculated Enright’s criminal history and imposed an upward departure, these
`
`arguments do not rely on an amendment to the Sentencing Guidelines and are
`
`invalid bases for a reduction of Enright’s sentence under section 3582(c)(2).
`
`Enright next argues that Amendment 599 lowered the sentencing range on
`
`which his sentence was based. Amendment 599 became effective November 1,
`
`2000, and amended the commentary to section 2K2.4, which provides the base
`
`offense level for individuals who have committed certain firearm offenses. See
`
`U.S.S.G. app. C, amend. 599; id. § 2K2.4 (provides base offense level for firearm
`
`convictions under sections 844(h), 924(c), or 929(a). Amendment 599 was
`
`4
`
`
`
`intended to prevent double counting for firearm use in a single criminal event,
`
`United States v. Pringle, 350 F.3d 1172, 1180 (11th Cir. 2003), but does not apply
`
`when the defendant’s sentence was not increased because of possession of a
`
`firearm. See United States v. Armstrong, 347 F.3d 905, 908 (11th Cir. 2003).
`
`The district court again did not abuse its discretion. Amendment 599 does
`
`not apply to Enright. Enright did not receive a weapons enhancement on any of his
`
`bank robbery charges and was not sentenced for committing any of the offenses to
`
`which Amendment 599 applies. Enright instead was sentenced for possession of a
`
`firearm by a felon under section 922(g).
`
`The denial of Enright’s motion to reduce his sentence is
`
`AFFIRMED.
`
`5
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