United States v. James Bolden , 323 F. App'x 811 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 21, 2009
No. 08-15309 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 94-00201-CR-T-17-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES BOLDEN,
a.k.a. Bibby,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 21, 2009)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant James Bolden, through counsel, appeals the district court’s denial
of his motion for a reduced sentence, pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 706 of the Sentencing Guidelines. On appeal, Bolden argues that the
district court erred in denying his § 3582(c)(2) motion because: (1) that denial
constituted a reimposition of his sentence, which created error under Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); and (2) it
should have exercised its discretion under United States v. Booker, 543 U.S. 220,
125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), and reduced his sentence based on the 18
U.S.C. § 3553(a) factors.
“In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), we
review de novo the district court’s legal conclusions regarding the scope of its
authority under the Sentencing Guidelines.” United States v. White, 305 F.3d
1264, 1267 (11th Cir. 2002). 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 has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). The Sentencing Commission has noted,
however, that a defendant is ineligible for a sentence reduction where an
“amendment does not have the effect of lowering [his] applicable guideline range
because of the operation of another guideline or statutory provision.” U.S.S.G. §
1B1.10, comment. (n.1(A)). Notably, a § 3582(c)(2) motion to reduce sentence
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does not provide the basis for de novo resentencing. United States v. Moreno, 421
F.3d 1217, 1220 (11th Cir. 2005).
After reviewing the record, we conclude that the district court properly
denied Bolden’s motion for relief under § 3582(c)(2) because his guideline range
of 360 months’ to life imprisonment was not affected by Amendment 706. The
record indicates that Bolden was held responsible at sentencing for 7.9 kilograms
of crack cocaine, rendering him ineligible for a sentence reduction because his base
offense level, total offense level, and guideline range remained unchanged by
Amendment 706.1 See United States v. Jones, 548 F.3d 1366, 1369 (11th Cir.
2008) (holding that the defendant was ineligible for § 3582(c)(2) relief because he
was responsible for over 4.5 kilograms of crack cocaine and, accordingly, his
offense level of 38 was unchanged), cert. denied, ___S. Ct. ___, (U.S. Mar. 23,
2009) (No. 08-8865). Bolden’s additional arguments regarding Apprendi and
Booker are without merit. See United States v. Bravo, 203 F.3d 778, 782 (11th Cir.
2000) (holding that a district court may not consider extraneous sentencing issues,
1
Even assuming, as the district court found, that Amendment 706 reduced Bolden’s
offense level two points, from 41 to 39, he was ineligible for a sentence reduction because his
criminal history was VI and his guideline range remained unchanged at 360 months’ to life
imprisonment. See United States v. Moore, 541 F.3d 1323, 1327-28, 1330 (11th Cir. 2008)
(holding that career offenders whose guideline ranges were unaffected by Amendment 706 were
not eligible for sentence reductions even though their base offense levels had changed), cert.
denied, McFadden v. United States, 129 S. Ct. 965 (2009), and cert. denied. ___S. Ct. ___ (U.S.
Mar. 9, 2009) (No. 08-8554).
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including constitutional claims, during § 3582(c)(2) proceedings); Moreno, 421
F.3d at 1220-21 (holding that Booker does not provide an independent
jurisdictional basis for an ineligible defendant to receive a sentence reduction).
Therefore, we affirm the district court’s order denying Bolden’s motion for a
reduced sentence.2
AFFIRMED.
2
We DENY the government’s motion for summary affirmance and its motion to stay
briefing schedule.
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