United States v. Barry Leon Ardley ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 11, 2009
No. 08-14378 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 97-00251-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BARRY LEON ARDLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(February 11, 2009)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Barry Leon Ardley, a federal prisoner convicted of crack cocaine offenses,
appeals the district court’s reduction of his sentences under Amendment 706
and 18 U.S.C. § 3582(c)(2). Ardley contends that the district court erroneously
failed to apply United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), at his
resentencing.
We review de novo a district court’s conclusions about the scope of its
authority to reduce a sentence under 18 U.S.C. § 3582(c)(2). United States v.
Jones, 548 F.3d 1366, 1368 (11th Cir. 2008).
In this case, Ardley’s original offense level was 38 and his criminal history
category was I, giving him a guidelines range of 235 to 293 months. He was
sentenced to 293 months. After Amendment 706 became retroactive, Ardley’s
offense level dropped to 36 and his guidelines range became 188 to 235 months.
In resentencing Ardley under § 3582(c)(2), the district court noted that “[i]mposing
a similar high-end sentence under the revised guidelines would result in a sentence
of 235 months.” Without elaboration the district court then stated its intention to
resentence Ardley to 235 months. Ardley objected because he wanted a sentence
below the amended guidelines range, and he argued that under Booker the court
had the authority to give him such a sentence. Ardley asked the district court to
apply Booker, or at least to clarify whether it believed that Booker applied and if
not, to state why not. The district court did not respond to that request, but instead
entered its order sentencing Ardley to 235 months. Therefore, it is not entirely
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clear whether the district court believed that it could use Booker to deviate below
the amended guidelines range and simply declined to, or whether the district court
believed that Booker was entirely inapplicable to resentencings under § 3582(c)(2).
Ardley asks us to presume that the district court believed that Booker was
inapplicable.
Ardley argues only that the district court erred in failing to apply Booker at
his § 3582(c) resentencing. Recently this circuit joined the Eighth, Fourth, and
Tenth Circuits in holding that Booker does not apply at resentencing proceedings
under § 3582(c)(2). United States v. Melvin, __ F.3d __, No. 08-13497 (Feb. 3,
2009); see also United States v. Starks, __ F.3d __, No. 08-2590, 2009 WL 66115(8th Cir. Jan. 13, 2009); United States v. Dunphy, __ F.3d __, No. 08-6919, 2009
WL 19139 (4th Cir. Jan. 5, 2009); United States v. Rhodes, 549 F.3d 833 (10th
Cir. 2008). There was no error at the resentencing.
AFFIRMED.
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