United States v. Mike Riley

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 6, 2009
No. 08-14958 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 93-00252-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIKE RILEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 6, 2009)
Before BLACK, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Mike Riley appeals the sentence imposed by the district court following the
grant of his pro se motion for a reduced sentence, pursuant to 18 U.S.C.
§ 3582(c)(2). Riley’s § 3582(c)(2) motion was based on Amendment 706 to the
Guidelines, which reduced base offense levels applicable to crack cocaine. Riley’s
original total offense level was 40, with a criminal history category of I, resulting
in a Guidelines range of 292 to 365 months’ imprisonment. Riley was originally
sentenced to 292 months’ imprisonment. Riley’s amended total offense level was
38, resulting in an amended Guidelines range of 238 to 293 months’ imprisonment.
The district court resentenced Riley to 238 months’ imprisonment.
Riley asserts the district court erred in its application of § 3582(c)(2) when it
refused to sentence him below the minimum of the amended Guidelines range.
Riley asserts that, despite the language of U.S.S.G. § 1B1.10, which constrains the
court’s authority to vary from the amended range, that section, like all of the
Guidelines, is merely advisory under United States v. Booker, 125 S. Ct. 738(2005).
We recently addressed whether Booker and Kimbrough v. United States, 128
S. Ct. 558 (2007), prohibit Congress or the Sentencing Commission from limiting
the discretion of a district court in reducing a sentence under 18 U.S.C.
§ 3582(c)(2). See United States v. Melvin, 556 F.3d 1190, 1190 (11th Cir. 2009),
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petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664). Concluding Booker
and Kimbrough do not apply to § 3582(c)(2) proceedings, we held a district court
is bound by the limitations on its discretion imposed by § 3582(c)(2) and the
applicable policy statements by the Sentencing Commission. Id.
Based upon our holding in Melvin, Riley’s argument the district court should
have sentenced him below the amended Guidelines range is without merit. The
applicable policy statement, U.S.S.G. § 1B1.10(b)(2), and its commentary preclude
a district court from reducing a defendant’s sentence below the amended
Guidelines range if the defendant’s original sentence fell within the then-applicable
Guidelines range. Accordingly, we affirm Riley’s sentence.
AFFIRMED.
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