[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 19, 2009
No. 08-14518 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20654-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MILTON WALKER,
a.k.a. Six Footer,
a.k.a. Footer,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 19, 2009)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Milton Walker appeals the district court’s order denying his
18 U.S.C.
§ 3582(c)(2) motion for a reduction in sentence. The district court found that
Walker was not entitled to relief because he had originally received a 120 month
mandatory minimum sentence. Walker argues for the first time on appeal that his
mandatory minimum sentence violates the equal protection component of the Due
Process Clause of the Fifth Amendment. He argues that the 100-to-1 sentencing
ratio between crack cocaine and powder cocaine offenses is subject to strict
scrutiny because of its disproportionate impact on African-American defendants.
Alternatively, he argues that, under rational basis review, there is no rational basis
for this sentencing disparity.
Section 3582(c)(2) of Title 18 authorizes a district court to reduce the
sentence “of a defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission. . . .” Amendment 706 to the Sentencing Guidelines reduced the base
offense level for some crack cocaine offenses by two. See U.S. S ENTENCING
G UIDELINES M ANUAL app. C, amend. 706 (2007). Amendment 713 made
Amendment 706 retroactive effective March 3, 2008. See U.S. S ENTENCING
G UIDELINES M ANUAL app. C, amend. 713 (Supp. May 1, 2008).
However, § 3582(c)(2) also requires that any sentence reduction be
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“consistent with applicable policy statements issued by the Sentencing
Commission.” Section 1B1.10(a)(2)(B) of the Sentencing Guidelines states that a
sentence reduction is not authorized if the relevant amendment “does not have the
effect of lowering the defendant’s applicable guideline range.” The application
note for this section provides that an amendment does not have the effect of
lowering the defendant’s guideline range if the defendant was originally sentenced
to “a statutory minimum term of imprisonment.” U.S. S ENTENCING G UIDELINES
M ANUAL § 1B1.10, cmt. n.1(A) (Supp. May 1, 2008). The Supreme Court has also
held that district courts remain “constrained by the mandatory minimums” in
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U.S.C. § 841. Kimbrough v. United States,
128 S. Ct. 558, 574 (2007).
Generally we review the denial of a § 3582(c)(2) motion for abuse of
discretion. United States v. White,
305 F.3d 1264, 1267 (11th Cir. 2002).
Because Walker is raising his constitutional argument for the first time on appeal,
however, we review that claim for plain error. See United States v. Rodriguez,
398
F.3d 1291, 1298 (11th Cir. 2005). Under the plain error standard, the defendant
must show: “(1) error, (2) that is plain and (3) that affects substantial rights.”
United States v. Turner,
474 F.3d 1265, 1276 (11th Cir. 2007) (quotations
omitted). Moreover, we will only correct a plain error if it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
Id. (citation and
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quotation omitted).
A § 3582(c)(2) proceeding “does not constitute a de novo resentencing.”
United States v. Bravo,
203 F.3d 778, 781 (11th Cir. 2000). We have previously
held that constitutional claims are “extraneous resentencing issues” that a court
cannot address in the context of a § 3582(c)(2) proceeding. Id. at 782. Instead, a
defendant should raise any constitutional challenges to a sentence by making a
motion to vacate under
28 U.S.C. § 2255.
Id.
Here, Walker originally received a mandatory minimum sentence of 120
months in prison. Because he was sentenced in accordance with the statutory
mandatory minimum penalty, Amendment 706 did not lower his guideline range.
Thus, the district court did not err in holding that Walker was not entitled to relief
under § 3582(c)(2). The district court also did not commit plain error by failing to
consider a due process challenge to the mandatory minimum penalty provisions
because the court could not address those claims in a § 3582(c)(2) proceeding.
Upon review of the record and of the parties’ briefs, we find no reversible
error. Accordingly, we affirm.
AFFIRMED.
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