United States v. Danny Green , 475 F. App'x 313 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-16177 JUNE 22, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 5:97-cr-00074-CAR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANNY GREEN,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Middle District of Georgia
____________________________
(June 22, 2012)
Before TJOFLAT, JORDAN and KRAVITCH, Circuit Judges.
PER CURIAM:
The district court, pursuant to 18 U.S.C. § 3582(c)(2), reduced Danny Greene’s
sentence from 292 months to 235 months. The district court found that Amendment
750 to the Sentencing Guidelines – which lowered offense levels in USSG §
2D1.1 applicable to crack cocaine offenses – had been made retroactive by the
Sentencing Commission, and that the reduction in Mr. Greene’s sentence was
consistent with the policy statement set forth in USSG § 1B1.10 and the applicable
factors contained in 18 U.S.C. § 3553(a). See D.E. 452.
Though the district court granted his motion for reduction of sentence, Mr.
Greene now appeals. He argues that the district court, before reducing his sentence
pursuant to Amendment 750, should have lowered the amount of crack cocaine for
which he was held responsible when he was originally sentenced. Finding no error,
we affirm.
Mr. Greene is essentially asking that we require the district court to revisit the
factual determination it made as to drug quantity at the initial sentencing hearing. But
§ 3582(c) is limited in scope, and “does not authorize a sentencing or resentencing
hearing.” Dillon v. United States, ___ U.S. ___, ____, 130 S. Ct. 2683, 2690 (2010).
Moreover, USSG § 1B1.10(b)(1) provides that the district court shall substitute only
the retroactive amendment “for the corresponding guideline provisions that were
applied when the defendant was sentenced, and shall leave all other guideline
application decisions unaffected.” Thus, we have held that “all original sentencing
determinations remain unchanged with the sole exception of the guideline range that
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has been amended since the original sentencing.” United States v. Bravo, 203 F.3d
778, 781 (11th Cir. 2000) (emphasis in original). In short, Mr. Greene’s motion under
§ 3582(c) did not authorize the district court to change its initial relevant conduct
determination.
To the extent that Mr. Greene is arguing that we recognized a constitutional
error in his original sentence on direct appeal, and that this error allowed the district
court to revisit the issue of relevant conduct under § 3582(c)(2), we disagree. On
direct appeal, we vacated the life imprisonment sentence imposed on Clarence Clark,
Mr. Greene’s co-defendant, holding that the sentence violated Apprendi v. New
Jersey, 530 U.S. 466 (2000). See United States v. Greene, No. 99-11360, Slip. Op.
at 4-5, 253 F.3d 708 (11th Cir. 2001) (Table). With respect to Mr. Greene, however,
we said that he did not have a viable Apprendi claim:
We note that, unlike defendant Clark, defendant Greene was not in a
position to raise an issue under Apprendi[,] since his 360-month
sentence is within the statutory maximum for an enhanced penalty under
the catch-all provision of [21] U.S.C. § 841(b)(1)(C). See United States
v. Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000).
Id. at 4 n.4. Because we never ruled that Mr. Greene’s sentence was
unconstitutional, there is no basis for allowing the district court to revisit its initial
sentencing determination with respect to drug quantity.
The district court’s order reducing Mr. Greene’s sentence is affirmed.
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AFFIRMED.
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