United States v. Mark Harris ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-11431 FEBRUARY 17, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 96-00020-CR-5-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK HARRIS,
a.k.a. Omar Suluki,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(February 17, 2009)
Before TJOFLAT, BLACK and FAY, Circuit Judges.
PER CURIAM:
On August 14, 1996, a Northern District of Florida grand jury indicted
appellant Mark Harris for conspiracy to possess with intent to distribute crack
cocaine, in violation of 21 U.S.C. § 846. The following February, a jury found him
guilty as charged, and on June 10, 1997, the district court sentenced him to a prison
term of 360 months.
On March 3, 2008, Harris, relying on United States v. Booker, 543 U.S. 220,
125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Amendment 706 to the Guidelines,
and the sentencing objectives of 18 U.S.C. § 3553(a), moved the district court
pursuant to 18 U.S.C. § 3582(c)(2), to reduce his sentence. The court denied his
motion, concluding (1) that Amendment 706 did not operated to lower his
Guidelines sentence range because, at sentencing, the court had held him
accountable for 20 kilograms of crack cocaine, resulting in a base offense level of
38 (for 4.5 kilograms or more of crack cocaine), and that the amended Drug
Quantity Table still assigned a base offense level of 38 for 4.5 kilograms or more
of the drug, and (2) that Booker was inapplicable. Harris now appeals the court’s
ruling, claiming that the court should have reconsidered his original sentence and
imposed a new sentence in light of Amendment 706 and United States v. Booker
and in consideration of the fact that the Ex Post Facto Clause barred the court’s
application of U.S.S.G. § 1B1.10.
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Section 3582(c)(2) of the United States Code grants the district courts
discretion to reduce a term of imprisonment if the “term of imprisonment [was]
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). In such a
case, the court may reduce the term of the sentence after considering the applicable
§ 3553(a) sentencing factors, “if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” Id.
The Sentencing Commission’s policy statement on retroactive reduction of
sentences, U.S.S.G. § 1B1.10, provides that:
In a case in which 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, the court may reduce the defendant’s term of
imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by
18 U.S.C. § 3582(c)(2), any such reduction in the defendant’s term of
imprisonment shall be consistent with this policy statement.
U.S.S.G. § 1B1.10(a)(1).1 However, a reduction in the term of imprisonment is not
consistent with the Guidelines policy statement, and therefore not authorized by
§ 3582(c)(2), if the “amendment listed in subsection (c) does not have the effect of
lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B);
see also United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. 2003) (stating
1
Unless otherwise indicated, all citations are to the version in the November 1, 2008
Guidelines Manual.
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that only retroactively applicable amendments “that have the effect of lowering the
sentencing range upon which a sentence was based, may be considered for
reduction of a sentence under § 3582(c)(2)”). Accordingly, a sentence reduction is
not authorized where an amendment “is applicable to the defendant . . . but . . .
does not have the effect of lowering the defendant’s applicable guideline range
because of the operation of another guideline or statutory provision (e.g., a
statutory mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10,
comment. (n.1(A)).
Amendment 706 reduced offense levels in certain crack cocaine cases by
two levels, as reflected in the drug quantity table in U.S.S.G. § 2D1.1(c). See
U.S.S.G. App. C, Amend. 706. A defendant who was held accountable for 4.5
kilograms or more of crack cocaine is not eligible for a sentence reduction under
§ 3582(c)(2) and Amendment 706 because his base offense level remains at 38,
and, thus, his Guidelines sentence range has not been reduced. United States v.
Jones, No. 08-13298, slip op. at 443-44 (11th Cir. Nov. 19, 2008); accord United
States v. James, 548 F.3d 983, 985-86 (11th Cir. 2008) (holding that defendant was
not entitled to a § 3582(c)(2) sentence reduction when, based on the amount of
crack and powder cocaine he was responsible for and an intervening change in the
Guidelines, his offense level was higher under Amendment 706 than when he was
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sentenced). Specifically, because the defendant in Jones was responsible for at
least 12 kilograms of crack cocaine, his sentence range was not lowered; hence,
was not eligible for a sentence reduction. Jones, No. 08-13298, slip op. at 443-44.
In denying Harris’s § 3583(c)(6) motion, the district court properly adopted
the findings of fact and Guidelines calculations it made when it imposed Harris’s
sentence, including the finding that Harris was responsible for distributing in
excess of 20 kilograms of crack cocaine. Accordingly, the court committed no
error in concluding that he is ineligible for § 3582(c)(2) relief.
Contrary to Harris’s view of thelaw, a § 3582(c)(2) motion to reduce
sentence does not provide the court with the authority to reconsider the sentence it
previously imposed and to impose a new sentence. That is, the section does not
provide a vehicle for resentencing. U.S.S.G. § 1B1.10(a)(3); United States v.
Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005). Accordingly, § 3582(c)(2) does
not “grant to the court jurisdiction to consider extraneous resentencing issues.”
United States v. Bravo, 203 F.3d 778, 781-82 (11th Cir. 2000). “[A]ll original
sentencing determinations remain unchanged with the sole exception of the
guideline range that has been amended since the original sentencing.” Id. at 781(emphasis in original).
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Assuming that § 3582(c)(2) does not empower a district court to resentence
a defendant, Harris turns to Booker for such authority. His problem is that Booker
is not a retroactively applicable in the Guidelines amendment context or in a
§ 3582(c)(2) proceeding. Moreno, 421 F.3d at 1220. In short, “neither
§ 3582(c)(2) nor Booker provide[] a jurisdictional basis to reduce [a defendant’s]
sentence based on his post-sentencing rehabilitative conduct.” Id. at 1221
(reviewing the Booker argument for plain error).2 The Booker argument affords
Harris no help, so we turn to his Ex Post Facto Clause argument.
The Constitution provides that “[n]o ex post facto Law shall be passed”
U.S. Const. Art. I, § 9, cl. 3. This clause prohibits the enactment of laws that make
more burdensome the punishment for a crime, after its commission. United States
v. Valladeres, 544 F.3d 1257, 1270 (11th Cir. 2008). To prevail on an ex post
facto claim, a party must demonstrate that (1) the law was retrospective, in that it
applied to events occurring before its enactment, and (2) he was disadvantaged by
it. United States v. Abraham, 386 F.3d 1033, 1038 (11th Cir. 2004). It is clear that
the guidance the Sentencing Commission provides in U.S.S.G. § 1B1.10 does not
2
In United States v. James, we rejected a defendant’s argument that the district court should
have recalculated the drug quantities for which he was accountable, in light of Booker, because the
argument was “academic.” 548 F.3d at 986. Moreover, in United States v. Jones we explicitly
rejected an argument, from a defendant who was ineligible for the reduction because of the amount
of cocaine, that the district court nevertheless had the authority to reduce his sentence under Booker.
Jones, No. 08-13298, slip op. at 443-44.
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constitute a violation of the Ex Post Facto Clause. Harris’s argument therefore
fails.
AFFIRMED.
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