United States v. Paul Everette Clayton ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12145 ELEVENTH CIRCUIT
FEBRUARY 17, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 99-00050-CR-3-RV-MD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL EVERETTE CLAYTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(February 17, 2010)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Paul Everette Clayton, a federal prisoner convicted of a crack cocaine
offense, appeals the denial of his pro se 18 U.S.C. § 3582(c)(2) motion for a
reduction of his 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.” United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008), cert.
denied, 129 S. Ct. 1601 (2009); 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 . . . .” U.S.S.G. § 1B1.10 cmt. n.1(A).
Here, the district court did not err in denying Clayton’s § 3582(c)(2) motion.
Clayton’s § 3582(c)(2) motion was based on Amendment 706 to the Sentencing
Guidelines, which lowered most of the base offense levels in U.S.S.G. § 2D1.1(c)
applicable to crack cocaine offenses. See U.S.S.G. app. C., amends. 706, 713.
1
“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).
2
Because Clayton was designated a career offender at his original sentencing, his
offense level was based on U.S.S.G. § 4B1.1, not on U.S.S.G. § 2D1.1(c). Thus,
Amendment 706 had no effect on Clayton’s ultimate sentencing range. See Moore,
541 F.3d at 1327-28 (concluding that defendant sentenced as a career offender
under U.S.S.G. § 4B1.1 was ineligible for a § 3582(c)(2) sentence reduction
because Amendment 706 did not have the effect of lowering the applicable
guidelines range).
Clayton’s argument that he is eligible for a § 3582(c)(2) reduction based on
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), is foreclosed by our precedent.
See United States v. Melvin, 556 F.3d 1190, 1192 (11th Cir.) (concluding that
“Booker and Kimbrough do not prohibit the limitations on a judge’s discretion in
reducing a sentence imposed by § 3582(c)(2) 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).2 Because Clayton was ineligible for resentencing under
2
Clayton’s reliance on United States v. Knox, 573 F.3d 441 (7th Cir. 2009), is misplaced.
Knox involved a direct appeal of an original sentence challenging a district court’s pre-
Kimbrough conclusion that it could not consider the crack/powder cocaine disparity in the
guidelines in deciding whether to impose a sentence below the advisory guidelines range. 573
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§ 3582(c)(2), the district court had no authority to consider the 18 U.S.C. § 3553(a)
factors or the advisory guidelines range or exercise its discretion to impose a new
sentence.
To the extent Clayton challenges his original sentence on due process and
equal protection grounds, these arguments are outside the scope of a § 3582(c)(2)
proceeding. See 18 U.S.C. § 3582(c)(2) (limiting proceedings to cases where
retroactive amendment affects the applicable sentencing range); United States v.
Bravo, 203 F.3d 778, 781-82 (11th Cir. 2000) (explaining that § 3582(c)(2)
proceedings do not constitute de novo resentencings and § 3582(c)(2) does not
“grant to the court jurisdiction to consider extraneous resentencing issues”).
AFFIRMED.
F.3d at 446. Knox was not an appeal of a denial § 3582(c)(2) motion based on Amendment 706
and does not support Clayton’s argument that, even though his sentencing range is based on his
career offender status, he is eligible for a § 3582(c)(2) reduction because he was convicted of
conspiracy under 21 U.S.C. § 846.
4