United States v. Paul Alebord ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 6, 2007
No. 05-15323 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 89-06101-CR-JCP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL ALEBORD,
a.k.a. Paul Tallini,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 6, 2007)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Federal prisoner Paul Alebord appeals the district court’s order denying his
motion to modify his sentence, pursuant to 18 U.S.C. § 3582(c)(2). In 1990,
Alebord was convicted of one count of possession with intent to distribute at least
five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (2), and
sentenced to 360 months’ imprisonment, in accordance with the then-mandatory
Sentencing Guidelines provisions. Alebord contends he should be resentenced
because the Supreme Court subsequently held the Sentencing Guidelines are
advisory in United States v. Booker, 125 S. Ct. 738 (2005).
With limited exceptions, a district court may not modify a term of
imprisonment once it has been imposed. One exception is “in the case 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 pursuant to 28 U.S.C. § 994(o),” where, “upon motion of the
defendant . . . the court may reduce the term of imprisonment . . . if such a
reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2).
We previously held Booker is not a retroactively applicable Guidelines
amendment by the Sentencing Commission, and is not a ground on which a
defendant’s sentence can be reduced pursuant to § 3582(c)(2). United States v.
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Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005). Thus, the district court did not
abuse its discretion by denying Alebord’s motion to modify his sentence. See id. at
1219 (reviewing a district court’s decision not to reduce a sentence pursuant to
§ 3582(c)(2) for abuse of discretion).
AFFIRMED.
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