United States v. Primativo Avila ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 11, 2009
No. 08-14347 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00105-CR-FTM-29DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PRIMATIVO AVILA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 11, 2009)
Before MARCUS, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Primativo Avila appeals the denial of his motion for a reduced sentence. 18
U.S.C. § 3582(c)(2). Avila’s motion was based on Amendment 706 to the
Guidelines. We affirm.
“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 has subsequently been lowered by
the Sentencing Commission. 18 U.S.C. § 3582(c)(2).
The district court did not err. Amendment 706 did not have the effect of
lowering Avila’s sentencing range. Avila was held responsible for more than
eleven grams of cocaine base and was ineligible for a sentence reduction. See
United States v. Jones, 548 F.3d 1366, 1368–69 (11th Cir. 2008) (per curiam).
Avila argues that the district court had discretion to reduce his sentence below the
amended range under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738(2005), but Booker cannot be used as an independent basis to reduce a sentence.
See United States v. Melvin, 556 F.3d 1190, 1191–93 (11th Cir. 2009) (per
curiam). We affirm the denial of Avila’s motion.
AFFIRMED.
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