United States v. Angelo Carthan , 325 F. App'x 881 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 11, 2009
No. 08-16307 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-08115-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGELO CARTHAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 11, 2009)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Angelo Carthan, through counsel, appeals the denial of his motion for a
sentence reduction, under 18 U.S.C. § 3582(c)(2). The district court denied
Carthan’s motion, finding that he was ineligible for a reduction because he was
sentenced as a career offender, under U.S.S.G. § 4B1.1. On appeal, Carthan argues
that the district court erred in finding that he was ineligible for a reduction because
the court initially sentenced him based on an erroneous career-offender offense
level.
“We review de novo a district court’s conclusions about the scope of its
legal authority under 18 U.S.C. § 3582(c)(2).” A district court may modify a term
of imprisonment in the case of a defendant who was sentenced to a term of
imprisonment based on a sentencing range that subsequently has been lowered by
the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Any reduction, however,
must be “consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). The applicable policy statements, found in
U.S.S.G. § 1B1.10, state that a reduction is not authorized if the amendment “does
not have the effect of lowering the defendant’s applicable guideline range.”
U.S.S.G. § 1B1.10(a)(2)(B).
Upon careful review of the record and consideration of the parties’ briefs,
we discern no reversible error. To the extent that Carthan challenges his career-
offender offense level, such a challenge cannot prevail. “This Circuit has been
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very clear in holding that a sentencing adjustment undertaken pursuant to Section
3582(c)(2) does not constitute a de novo resentencing.” United States v. Bravo,
203 F.3d 778, 781 (11th Cir. 2000). Rather, in a § 3582(c)(2) resentencing, “all
original sentencing determinations remain unchanged with the sole exception of
the guideline range that has been amended since the original sentencing.” Id.
Moreover, because Carthan was sentenced based on the career-offender offense
level, the district court correctly found that he was not eligible for a sentence
reduction. See United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008), cert.
denied, McFadden v. United States, 129 S.Ct. 965 (2009), and cert. denied, (U.S.
Mar. 9, 2009 (No. 08-8554) (holding that the district court does not have the
authority to reduce the sentence of a defendant who was sentenced as a career
offender under U.S.S.G. § 4B1.1). Accordingly, we affirm.
AFFIRMED
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