United States v. Warren Charlton , 155 F. App'x 458 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11010 November 18, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-00032-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WARREN CHARLTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 18, 2005)
Before DUBINA, BLACK and HULL, Circuit Judges.
PER CURIAM:
Federal prisoner Warren G. Charlton appeals the district court’s denial of his
motion to reduce his sentence, which was brought pursuant to 18 U.S.C.
§ 3582(c)(1)(B).1 Charlton’s motion asserts the district court did not have
jurisdiction to sentence him beyond the statutory maximum in 21 U.S.C.
§ 841(b)(1)(D), pursuant to United States v. Booker, 125 S. Ct. 738 (2005).
According to Charlton, his sentence was increased based upon facts that were not
charged in the indictment or found beyond a reasonable doubt by the jury. The
district court denied Charlton’s motion.
A district court’s decision of whether to reduce a sentence pursuant to
§ 3582(c) is reviewed for an abuse of discretion. United States v. Vautier, 144
F.3d 756, 759 n.3 (11th Cir.1998). Section 3582(c)(1)(B) states:
The court may not modify a term of imprisonment once it has been
imposed except that --
(B) the court may modify an imposed term of imprisonment to
the extent otherwise expressly permitted by statute or by Rule 35 of
the Federal Rules of Criminal Procedure . . .
18 U.S.C. § 3582(c)(1)(B). According to Rule 35, a court may: (1) correct a
sentence that “resulted from arithmetical, technical, or other clear error;” and
1
On appeal, Charlton also asserts the court should have reduced his sentence pursuant to
18 U.S.C. § 3582(c)(2). Charlton failed to raise this claim in the district court, and we do not
consider issues raised for the first time on appeal. United States v. Kent, 175 F.3d 870, 871 n.1
(11th Cir. 1999).
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(2) reduce a sentence to reflect a defendant’s post-sentencing substantial
assistance. Fed. R. Crim. P. 35.
Charlton’s claim of constitutional error under Booker is not cognizable
under § 3582(c)(1)(B). Charlton’s motion essentially constitutes a collateral attack
on his original sentence, for which he would need to submit an application to file a
second or successive 28 U.S.C. § 2255 motion. We have held, however, that
Booker does not apply retroactively to cases on collateral review. Varela v. United
States, 400 F.3d 864, 868 (11th Cir. 2005). Thus, the district court did not abuse
its discretion by denying Charlton’s motion.
AFFIRMED.
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