United States v. Steven J. Harris , 325 F. App'x 856 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-16703 MAY 6, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 95-00605-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN J. HARRIS,
a.k.a. Joe Brown,
a.k.a. Billy Harris,
a.k.a. Edwich Pierre,
a.k.a. Steven Goodman,
a.k.a. Shine Henderson,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 6, 2009)
Before BLACK, CARNES, and BARKETT, Circuit Judges.
PER CURIAM:
Steven Harris appeals the district court’s denial of his motion for a reduction
of sentence pursuant to 18 U.S.C. § 3582(c)(2). Harris based his motion on
Amendment 706 to the sentencing guidelines, which reduced the base offense
levels applicable to crack cocaine offenses. He contends that the district court
erred by not recognizing that he was sentenced based on an “improperly
determined drug amount” during his original sentencing proceeding, in violation of
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Harris argues that
the court on resentencing treated the guidelines as mandatory in violation of United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). He also asserts that,
although his criminal history category was increased from III to VI under the
career-offender provision of the guidelines, the court erred when it determined he
was sentenced as a career offender. See U.S.S.G. § 4B1.1.
“We review de novo a district court’s conclusions about the scope of its
legal authority under 18 U.S.C. § 3582(c)(2).” United States v. Jones, 548 F.3d
1366, 1368 (11th Cir. 2008). A district court may modify a term of imprisonment
where a defendant was sentenced based on a sentencing range that subsequently
has been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Where
a defendant’s guideline range remains unchanged by Amendment 706 because his
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offense involved 4.5 kilograms or more of crack cocaine, a district court is not
authorized to reduce the defendant’s sentence under § 3582(c)(2). Jones, 548 F.3d
at 1369.
We have noted that when the district court is evaluating whether to modify a
defendant’s sentence pursuant to § 3582(c)(2), “all original sentencing
determinations remain unchanged with the sole exception of the guideline range
that has been amended since the original sentencing.” United States v. Bravo, 203
F.3d 778, 781 (11th Cir. 2000). We have also held that “‘Booker is inapplicable to
§ 3582(c)(2) motions.’” United States v. Melvin, 556 F.3d 1190, 1193 (11th Cir.
2009) (citing United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005)).
During his original sentencing proceeding the court determined that Harris
was responsible for over 4.5 kilograms of crack cocaine. Thus Amendment 706
did not reduce his applicable guideline range, and the district court lacked the
authority to modify his sentence. Because § 3582(c)(2) proceedings are not de
novo resentencings, Harris’ arguments about improper drug-amount
determinations made during his original sentencing proceeding also fail. See
Bravo, 203 F.3d at 781. Nor can Harris support his § 3582(c)(2) motion with a
Booker argument because, as we have noted, Booker “does not address motions to
reduce a sentence under § 3582(c)(2).” Melvin, 556 F.3d 1192–93.
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Finally, Harris’ argument that he was not sentenced as a career offender is
factually incorrect. Although the court’s application of § 4B1.1 did not increase
Harris’ base offense level because it was already at 40, it did raise his criminal
history category from III to VI. See U.S.S.G. § 4B1.1(b). The district court did
not err when it determined that Harris had been sentenced as a career offender.
AFFIRMED.
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