United States v. Miguel Rodriguez ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Nov. 19, 2009
No. 09-11234 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-00015-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL RODRIGUEZ,
a.k.a. Papo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 19, 2009)
Before BARKETT, MARCUS and ANDERSON , Circuit Judges.
PER CURIAM:
Miguel Rodriguez, through counsel, appeals the district court’s denial of his
motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2). Rodriguez
argues that the district court erred by denying his motion for a sentence reduction
because, even though the presentence investigation report (“PSI”) found him
responsible for 53 kilograms of cocaine base, he was sentenced based on a broader
finding of only 1.5 kilograms or more of cocaine base, so Amendment 706 reduced
his guideline range. He also argues that his due process rights were violated, and
that Amendment 706 preserves the sentencing disparity between crack cocaine and
powder cocaine offenses.
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), cert. denied, 129 S.Ct. 1657 (2009). A district court
may modify a term of imprisonment in the case of a defendant who was sentenced
based on a guideline range that the Sentencing Commission subsequently lowered.
18 U.S.C. § 3582(c)(2).
Amendment 706 to the Sentencing Guidelines reduced base offense levels
for crack cocaine offenses. Jones, 548 F.3d at 1368. “Under Amendment 706, the
guidelines now provide a base offense level of 36 for defendants who are
responsible for at least 1.5 kilograms but less than 4.5 kilograms of crack cocaine.”
Id. at 1369; see also U.S.S.G. § 2D1.1(c)(2). “However, a base offense level of 38
2
still applies to defendants responsible for 4.5 kilograms or more.” Jones, 548 F.3d
at 1368; see also U.S.S.G. § 2D1.1(c)(1). Thus, if a defendant is responsible for at
least 4.5 kilograms of crack cocaine, Amendment 706 does not reduce his
applicable guideline range. Jones, 548 F.3d at 1369. A defendant is ineligible for
a sentence reduction under § 3582(c)(2) if his guideline range is not reduced by a
guideline amendment. Id.
The district court properly denied Rodriguez’s motion for relief under
§ 3582(c)(2) because Amendment 706 did not affect his guideline range. Because
the sentencing court held Rodriguez accountable for the conspiracy’s estimated
distribution of 53 kilograms of cocaine base, he was ineligible for a sentence
reduction, pursuant to § 3582(c)(2). Furthermore, the district court’s denial of
Rodriguez’s § 3582(c)(2) motion did not violate his due process rights because the
court was required to preserve the original sentencing determinations, and
Rodriguez had the opportunity to contest the drug amount at his original
sentencing. Lastly, this appeal is not the proper forum to contest the Sentencing
Commission’s manner of implementing Amendment 706.
AFFIRMED.
3