United States v. Paul Sepulveda ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14036 ELEVENTH CIRCUIT
APRIL 29, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 98-00715-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL SEPULVEDA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 29, 2009)
Before TJOFLAT, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Paul Sepulveda appeals the district court’s denial of his motion for a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 706,
which amended the base offense levels in U.S. Sentencing Guideline § 2D1.1(c)
applicable to crack cocaine offenses. The district court denied the motion, finding
that Sepulveda was sentenced as a career offender under U.S. Sentencing Guideline
§ 4B1.1, and thus, any reduction would not be consistent with the policy
statements issued by the Sentencing Commission.
On appeal, Sepulveda argues that the district court had discretion to reduce
his sentence under § 3582 because he had received a downward departure based on
over-representation. Relying on United States v. Moore, 541 F.3d 1323 (11th Cir.
2008), cert. denied, ___ S. Ct. ____, 2009 WL 301854 (2009), Sepulveda asserts
that, although defendants sentenced as career offenders generally are not eligible
for Amendment 706 reductions, those defendants who receive downward
departures remain eligible for relief.
“We review a district court’s decision not to reduce a sentence pursuant to §
3582(c)(2) for abuse of discretion.” United States v. Moreno, 421 F.3d 1217, 1219
(11th Cir. 2005) (per curiam). The district court may 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,” provided that “such a reduction is consistent with applicable policy
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statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In
Moore, we held that, if the defendant was sentenced as a career offender under
U.S. Sentencing Guideline § 4B1.1, and the range was not affected by U.S.
Sentencing Guideline § 2D1.1, then the sentence is not “based on a sentencing
range that has subsequently been lowered.” 541 F.3d at 1327. We noted that the
base offense levels under U.S. Sentencing Guideline § 2D1.1 played no role in the
calculation of the career offender range for that defendant. Id. at 1327. As such,
even though Amendment 706 was retroactive, the district court was not authorized
to reduce the sentence. Id. at 1330.
Similar to the defendants in Moore, the district court sentenced Sepulveda
by application of the career offender guideline in U.S. Sentencing Guidelines §
4B1.1, leaving untouched his offense level. Sepulveda’s downward departure only
affected his criminal history category and did not affect his status as a career
offender for purposes of calculating his Guidelines range. Thus, Sepulveda was
not sentenced under the otherwise applicable base offense level of 32 in U.S.
Sentencing Guidelines § 2D1.1, and the district court did not abuse its discretion in
determining that he was ineligible for relief under Amendment 706.
In the alternative, Sepulveda argues that Moore was wrongly decided
because it results in a mandatory application of the guidelines, which violates the
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principles established in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005). However, § 3582(c)(2) allows district courts to reduce a sentence only
when a defendant “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). As such, Booker does not apply here. See
Moreno, 421 F.3d at 1220 (providing that “Booker is a Supreme Court decision,
not a retroactively applicable guideline amendment by the Sentencing
Commission. Therefore, Booker is inapplicable to § 3582(c)(2) motions.”); United
States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008) (per curiam) (same). Thus,
Sepulveda’s argument is precluded by our precedent. Moreover, decisions of prior
panels are binding on subsequent panels, and can be overturned only by
intervening Supreme Court authority or this Court sitting en banc. See Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981); United States v. Hogan,
986 F.2d 1364, 1369 (11th Cir. 1993).
We conclude that the district court correctly ruled that it lacked authority to
reduce Sepulveda’s sentence pursuant to § 3582(c)(2). Upon review of the record
and the parties’ briefs, we discern no reversible error. Accordingly, we affirm.
AFFIRMED.
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