United States v. Warren Lavell Jackson , 343 F. App'x 472 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12265 ELEVENTH CIRCUIT
AUGUST 27, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 99-14021-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WARREN LAVELL JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 27, 2009)
Before TJOFLAT, EDMONDSON and HULL, Circuit Judges.
PER CURIAM:
Warren Lavell Jackson, a federal prisoner convicted of a crack cocaine
offense, appeals the district court’s denial of his pro se 18 U.S.C. § 3582(c)(2)
motion for a reduced sentence. After review, we affirm.1
Under § 3582(c)(2), a district court may modify a defendant’s term of
imprisonment if the defendant’s sentence was “based on a sentencing range that
has subsequently been lowered by the Sentencing Commission pursuant to 28
U.S.C. § 994(o) . . . .” 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1).
However, “[w]here a retroactively applicable guideline amendment reduces a
defendant’s base offense level, but does not alter the sentencing range upon which
his or her sentence was based, § 3582(c)(2) does not authorize a reduction in
sentence.” Moore, 541 F.3d at 1330; see also U.S.S.G. § 1B1.10(a)(2)(B). A
reduction is not authorized if the amendment does not lower a defendant’s
applicable guidelines range “because of the operation of another guideline or
statutory provision (e.g., a statutory mandatory minimum term of imprisonment).”
U.S.S.G. § 1B1.10 cmt. n.1(A).
Here, Jackson’s § 3582(c)(2) motion is based on Amendment 706 to the
Sentencing Guidelines, which reduced the base offense levels in U.S.S.G. §
2D1.1(c) applicable to certain crack cocaine offenses. However, at his original
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“In a § 3582(c)(2) proceeding, we review de novo the district court’s legal conclusions
regarding the scope of its authority under the Sentencing Guidelines.” United States v. Moore,
541 F.3d 1323, 1326 (11th Cir. 2008) (quotation marks omitted), cert. denied, 129 S. Ct. 965(2009), and 129 S. Ct. 1601 (2009).
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sentencing, Jackson was subject to a mandatory minimum term of life
imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(A), in light of his three previous
felony drug offense convictions. Thus, his sentencing range was not based on the
amount of crack cocaine attributed to him under U.S.S.G. § 2D1.1(c), but on the
statutory mandatory minimum. See U.S.S.G. § 5G1.1(b). As such, Amendment
706 had no effect on Jackson’s sentencing range of life imprisonment.
Jackson’s argument that his original sentence is unconstitutional under
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), is outside the scope
of a § 3582(c)(2) proceeding. See 18 U.S.C. § 3582(c)(2) (limiting proceedings
under § 3582(c)(2) to cases in which a retroactive amendment affects the
applicable sentencing range); United States v. Bravo, 203 F.3d 778, 781 (11th
Cir.), cert. denied, 531 U.S. 994, 121 S. Ct. 486 (2000) (explaining that, in
§ 3582(c)(2) proceedings, all original sentencing determinations remain unchanged
except the guideline range affected by the amendment). His arguments regarding
the applicability of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),
and Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007), are
foreclosed by our precedent. See United States v. Melvin, 556 F.3d 1190, 1192
(11th Cir. 2009); (concluding that “Booker and Kimbrough do not prohibit the
limitations on a judge’s discretion in reducing a sentence imposed by § 3582(c)(2)
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and the applicable policy statement by the Sentencing Commission”), cert. denied,
129 S. Ct. 2382 (2009); United States v. Jones, 548 F.3d 1366, 1369 (11th Cir.
2008) (concluding that Booker does not provide a basis on which to grant a §
3582(c)(2) motion), cert. denied, 129 S. Ct. 1657 (2009).
Thus, the district court did not have the authority to reduce Jackson’s
sentence and properly denied Jackson’s § 3582(c)(2) motion.
AFFIRMED.
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