United States v. Deljuan Prettyman , 329 F. App'x 855 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14883 MAY 4, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00063-CR-5-RDP-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DELJUAN PRETTYMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 4, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Deljuan Prettyman, proceeding pro se, appeals the district court’s denial of
his motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2), in which he
raised Amendment 706 to the United States Sentencing Guidelines, which reduced
base offense levels applicable to crack cocaine. The district court denied
Prettyman’s § 3582(c)(2) motion, concluding that he was ineligible for a sentence
reduction because he was sentenced to a statutory minimum term of 240 months’
imprisonment under 21 U.S.C. § 841(b)(1)(A). On appeal, Prettyman argues that
the district court erred in finding that he was ineligible for a § 3582(c)(2) reduction
because the district court, during his original sentencing, did not conduct a hearing
on the government’s information filed pursuant to 21 U.S.C. § 851. He contends
that the district court’s failure to hold the hearing in compliance with § 851 led to
the erroneous use of a prior state conviction to enhance his sentence. Prettyman
argues that these errors prevented him from being eligible for a sentence reduction
under Amendment 706.
“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. James, 548 F.3d 983,
984 (11th Cir. 2008) (per curiam). 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,
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must be “consistent with applicable policy statements issued by the Sentencing
Commission.” Id. The applicable policy statements, found in Guidelines
§ 1B1.10, provide that a sentence reduction is not authorized under § 3582(c)(2) if
“[a]n amendment listed in subsection (c) does not have the effect of lowering the
defendant’s applicable guideline range.” U.S. S ENTENCING G UIDELINES M ANUAL
§ 1B1.10(a)(2)(B). The commentary elaborates that a reduction is not authorized if
an applicable amendment does not lower a 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 ENTENCING
G UIDELINES M ANUAL § 1B1.10, cmt. n.1(A). Guidelines § 5G1.1 provides that
“[w]here a statutorily required minimum sentence is greater than the maximum of
the applicable guideline range, the statutorily required minimum sentence shall be
the guideline sentence.” U.S. S ENTENCING G UIDELINES M ANUAL § 5G1.1(b).
Here, the district court did not err in determining that Prettyman, who was
sentenced to a statutory minimum term of 240 months’ imprisonment under
§ 841(b)(1)(A), was not eligible for a sentence reduction because his sentence was
not affected by Amendment 706. See U.S. S ENTENCING G UIDELINES M ANUAL
§ 1B1.10, cmt. n.1(A); United States v. Williams, 549 F.3d 1337, 1342 (11th Cir.
2008) (per curiam) (holding that a defendant was not eligible for a sentence
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reduction under Amendment 706 because he “was subject to a statutory mandatory
minimum sentence that replaced his original guideline range. . .”). Furthermore,
we decline to review Prettyman’s argument that the district court failed to comply
with the procedural requirements of § 851 during his original sentencing
proceedings because that argument is outside the scope of the § 3582(c)(2)
proceeding. See United States v. Bravo, 203 F.3d 778, 781-82 (11th Cir. 2000)
(declining to address an Eighth Amendment argument raised in a § 3582(c)(2)
proceeding because § 3582(c)(2) “does not grant to the court jurisdiction to
consider extraneous resentencing issues. . .”).
Upon our review of the record and the parties’ briefs, we discern no
reversible error. Accordingly, we affirm.
AFFIRMED.
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