Argued: January 26, 2017
from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant.
Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY,
Abingdon, Virginia, for Appellee.
W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Roanoke, Virginia, for Appellant.
P. Fishwick, Jr., United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
GREGORY, Chief Judge, and DUNCAN and FLOYD, Circuit Judges.
by published opinion. Judge Floyd wrote the opinion, in which
Chief Judge Gregory and Judge Duncan joined.
mid-2009, David May pleaded guilty to various drug and
firearm offenses, and was sentenced pursuant to a stipulated
plea agreement under Federal Rule of Criminal Procedure
11(c)(1)(C). In November 2014, the Sentencing Guidelines were
amended, retroactively lowering the offense levels associated
with two of the offenses to which May pleaded guilty. In
February 2015, the district court, sua sponte, denied May a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2),
on the grounds that May's sentence was not based on the
Guidelines. In September 2015, May filed a motion for
reconsideration of the district court's sua sponte
denial, which the district court denied two months later. May
timely appealed the denial of his motion for reconsideration,
challenging the district court's refusal to apply the
amended Guidelines to his sentence. We agree with the
district court's denial of relief, and we therefore
nineteen-count indictment filed on May 14, 2008, David May
was charged with various drug and firearms offenses by a
grand jury in the Western District of Virginia. On May 4,
2009, May entered into a plea agreement with the government
pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C). May pleaded guilty to
conspiracy to distribute methamphetamine, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(C) (Count 1);
distribution of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846(b)(1)(C) (Count 8); using and
carrying a firearm during and in relation to, and possession
of a firearm in furtherance of, a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (Count 9); and
possession of a firearm after having been convicted of a
crime punishable by more than one year imprisonment and while
being an unlawful user of a controlled substance, in
violation of 18 U.S.C. § 922(g)(1) and (3) (Count 13).
J.A. 31-32. In exchange, the remaining fifteen counts from
the indictment were dropped. May's plea agreement also
included an appeal waiver.
section titled "Sentencing Provisions" and a
subsection titled "General Matters, " the plea
agreement stated that pursuant to Rule 11(c)(1)(C), the
parties agreed to May's prison term. J.A. 33. The parties
agreed to a prison term of 180 months on the drug counts
(Counts 1 and 8), a concurrent term of 120 months on the
felon in possession count (Count 13), and a consecutive term
of 60 months on the § 924(c) count (Count 9).
following the "General Matters" subsection, the
plea agreement contains a subsection titled "Sentencing
Guidelines." J.A. 34. In this subsection, the parties
set forth their stipulations as to offense level calculations
under the Sentencing Guidelines. The parties agreed to an
offense level of 30 for the drug counts, which corresponded
to "350 grams to 499.99 grams of methamphetamine"
(Counts 1 and 8); an offense level of 16 for the felon in
possession count (Count 13); and a total offense level of 30
for all the above-described counts (Counts 1, 8, and 13).