United States v. Francisco Saldana ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 28, 2009
Nos. 08-16571 & 09-11167
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 95-00605-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO SALDANA,
a.k.a. Frank,
a.k.a. Frank Rivera,
a.k.a. Warren G,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(August 28, 2009)
Before EDMONDSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Francisco Saldana, who was sentenced to life imprisonment in 1996 after
being convicted of drug trafficking offenses, appeals the district court’s denial of
his motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2). Saldana
based his motion on Amendment 706 to the United States Sentencing Guidelines,
which reduced the base offense levels applicable to crack cocaine offenses. He
contends that the court lacked jurisdiction to impose a sentence of life
imprisonment because the government filed an inadequate 21 U.S.C. § 851 notice
of enhancement before his original sentencing hearing.
The district court correctly denied Saldana’s § 3582(c)(2) motion because
his term of life imprisonment was based on the statutory mandatory minimum in
21 U.S.C. § 841(b)(1)(A). Thus Saldana was not eligible for a sentence reduction
under Amendment 706 because that amendment does not lower his applicable
guideline range. See United States v. Williams, 549 F.3d 1337, 1339–40 (11th
Cir. 2008) (holding that a defendant sentenced the to statutory minimum was not
eligible for a sentence reduction because Amendment 706 had no effect on his
statutory minimum term of imprisonment); U.S.S.G. § 1B1.10, cmt. 1(A) (noting
that a defendant is not eligible for a reduction if “the amendment does not have the
effect of lowering the defendant’s applicable guideline range because of the
operation of [a] statutory provision (e.g., a statutory mandatory minimum term of
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imprisonment)”). Saldana’s attempt to avoid this fact by attacking the sufficiency
of the government’s § 851 notice fails because § 3582(c)(2) proceedings are not de
novo resentencings and, therefore, are not the proper avenue to present that type of
challenge. See United States v. Bravo, 203 F.3d 778, 781-82 (11th Cir. 2000)
(noting that “all original sentencing determinations remain unchanged with the
sole exception of the guideline range that has been amended since the original
sentencing” and that § 3582(c)(2) “does not grant to the court jurisdiction to
consider extraneous resentencing issues”).1
AFFIRMED.
1
Saldana also argues that the district court (1) erred by refusing to consider his post-
sentencing conduct when deciding whether to reduce his sentence and (2) violated his Fifth and
Sixth Amendment rights by finding him responsible for more than 4.5 kilograms of crack cocaine
when the superseding indictment in his case alleged only a “detectable amount.” These
arguments are aimed not at whether Saldana is eligible for a reduction under Amendment 706 but
instead at what amount of reduction would have been appropriate had he been eligible for one.
Because he was not, however, Williams, 549 F.3d at 1339–40, we do not address them.
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