United States v. Daryon Sharp , 307 F. App'x 385 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 15, 2009
No. 08-11909 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 88-00188-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARYON SHARP,
a.k.a. Dewayne Smith,
a.k.a. Buck,
a.k.a. Buckwheat,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(January 15, 2009)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Daryon Sharp, a federal prisoner convicted of crack cocaine offenses,
appeals the district court’s denial of his pro se 18 U.S.C. § 3582 motion to reduce
his sentence. After review, we affirm.
Under § 3582(c)(2), a district court has discretion to reduce the term of
imprisonment of an already incarcerated defendant if that defendant “has been
sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C.
§ 994(o).” 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1) (Supp. May
1, 2008). However, “[w]here a retroactively applicable guideline amendment
reduces a defendant’s base offense level, but does not alter the sentencing range
upon which his or her sentence was based, § 3582(c)(2) does not authorize a
reduction in sentence.” United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.
2008); see also U.S.S.G. § 1B1.10(a)(2)(B) (Supp. May 1, 2008). Sharp based his
§ 3582(c)(2) motion on Amendment 706 to the Sentencing Guidelines, which
lowered most, but not all, of the base offense levels under U.S.S.G. § 2D1.1 for
crack cocaine offenses.
The district court did not err in concluding that Sharp was ineligible for a
§ 3582(c)(2) reduction.1 At Sharp’s original sentencing, the district court found
1
We review de novo a district court’s legal conclusions regarding the scope of its
authority to modify a sentence under § 3582(c)(2). United States v. White, 305 F.3d 1264, 1267
2
that Sharp was responsible for at least 15 kilograms of crack cocaine.2 Although
Amendment 706 reduced by two levels the offense levels for crack cocaine
offenses involving less than 4.5 kilograms of crack cocaine, Amendment 706 left
unchanged the base offense level (level 38) for offenses involving 4.5 kilograms or
more of crack cocaine. Compare U.S.S.G. § 2D1.1(c)(1) (2006) with U.S.S.G.
§ 2D1.1(c)(1), (2) (2008). Because Sharp is responsible for more than 4.5
kilograms of crack cocaine, Amendment 706 had no effect on his base offense
level or applicable advisory sentencing range.
To the extent Sharp argues that United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (2005) entitles him to a sentence reduction, Booker does not provide an
independent basis for § 3582(c)(2) relief. United States v. Jones, 548 F.3d 1366,
___, 2008 WL 4934033, at *2 (11th Cir. 2008). Further, because Sharp did not
(11th Cir. 2002).
2
Sharp’s argument that the district court incorrectly calculated the amount of drugs at his
original sentencing is outside the scope of a § 3582(c)(2) proceeding. See United States v.
Bravo, 203 F.3d 778, 781-82 (11th Cir. 2000) (explaining that § 3582(c)(2) “does not grant the
court jurisdiction to consider extraneous resentencing issues”); United States v. Cothran, 106
F.3d 1560, 1563 (11th Cir. 1997) (upholding district court’s refusal in a § 3582(c)(2) proceeding
to re-examine drug quantity because factual decisions from the original sentencing are to be left
intact). In any event, Sharp challenged the drug quantity finding on direct appeal, and this Court
affirmed. See United States v. Andrews, 953 F.2d 1312, 1326-27 (11th Cir. 1992). Moreover,
Sharp filed an earlier § 3582(c)(2) motion for reduction based on a prior guidelines amendment –
Amendment 505 – and in the appeal of the denial of that motion, this Court pointed out: “The
district court was not authorized to review its findings about the quantity of cocaine attributed to
Sharp . . . .” United States v. Sharp, No. 96-6538, slip. op. at 3 (11th Cir. June 19, 1997) (per
curiam).
3
qualify for resentencing under § 3582(c)(2), the district court had no occasion to
consider the 18 U.S.C. § 3553(a) factors and the advisory guidelines or to exercise
its discretion to impose a new sentence.
AFFIRMED.
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