United States v. James Alfonso Henry ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 05, 2009
No. 08-12678 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00211-CR-T-23-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ALFONSO HENRY,
a.k.a. Pooky,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 5, 2009)
Before BIRCH, HULL and WILSON, Circuit Judges.
PER CURIAM:
James Alfonso Henry appeals the district court’s order denying his 18
U.S.C. § 3582(c)(2) motion for a reduction in sentence.
I.
Henry first argues that the district court erred by not reducing his sentence
below the 120 month statutory minimum. In a case involving 18 U.S.C. §
3582(c)(2), we review a district court’s conclusions about the scope of its legal
authority de novo. United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.
2008)(citing United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002) (per
curiam)). Section 3582(c)(2) authorizes a district court to reduce the sentence
“of a defendant who 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 706 to the Sentencing
Guidelines reduced the base offense level for some crack cocaine offenses by two
levels. See U.S. SENTENCING GUIDELINES MANUAL App. C, amend. 706 (2007).
Amendment 713 made Amendment 706 retroactive effective March 3, 2008. See
U.S. SENTENCING GUIDELINES MANUAL App. C, amend. 713 (Supp. May 1,
2008).
Section 3582(c)(2) also requires that any sentence reduction be “consistent
with applicable policy statements issued by the Sentencing Commission.” Section
1B1.10(a)(2)(B) of the Sentencing Guidelines states that a sentence reduction is not
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authorized if the relevant amendment “does not have the effect of lowering the
defendant’s applicable guideline range.” The application note for this section
provides that an amendment does not have the effect of lowering the defendant’s
guideline range if the defendant was originally sentenced to a statutory minimum
term of imprisonment. U.S. SENTENCING GUIDELINES MANUAL § 1B1.10, cmt.
n.1(A) (Supp. May 1, 2008). The Supreme Court has also held that district courts
remain “constrained by the mandatory minimums” in 21 U.S.C. § 841. Kimbrough
v. United States, 552 U.S. ___, 128 S. Ct. 558, 574, 169 L. Ed. 2d 481 (2007).
Henry was originally sentenced to a statutory mandatory minimum sentence
of 120 months in prison. Therefore, the district court did not err in ruling that
Henry’s guideline range was not reduced and that he was not eligible for relief
under § 3582(c)(2).
II.
Henry next argues, for the first time on appeal, that treating prisoners who,
like himself, received a mandatory minimum sentence differently from those who
do not, by declaring only the latter eligible for § 3582(c)(2) relief, violates the
equal protection component of the due process clause of the Fifth Amendment.
Arguments raised for the first time on appeal are reviewed for plain error. United
States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005).
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A § 3582(c)(2) proceeding does not constitute “a full de novo resentencing.”
United States v. Cothran, 106 F.3d 1560, 1562 (11th Cir. 1997). We have
previously held that constitutional claims are “extraneous resentencing issues” that
a court cannot address in a context of a § 3582(c)(2) proceeding. United States v.
Bravo, 203 F.3d 778, 782 (11th Cir. 2000). Because a district court may not
consider constitutional issues during a § 3582(c)(2) proceeding, the district court
did not plainly err by not considering, sua sponte, Henry’s equal protection
challenge. A defendant is entitled to raise constitutional challenges to a sentence
by making a collateral attack under 28 U.S.C. § 2255. Id.Finding no reversible error with regard to Henry’s sentence, we
affirm.
AFFIRMED.
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