United States v. Ernest R. Staley

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12105 ELEVENTH CIRCUIT
APRIL 27, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 88-04045-CR-4-WS-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EARNEST R. STALEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 27, 2009)
Before TJOFLAT, BLACK and ANDERSON, Circuit Judges.
PER CURIAM:
Earnest Ray Staley appeals, pro se, the district court’s partial denial of his
motion for a reduction of sentence, pursuant to 18 U.S.C. § 3582(c)(2). Finding
Staley eligible for relief under Amendment 706 to the Sentencing Guidelines, the
district court reduced Staley’s sentence to the low-end of his amended guideline
range, but denied his request to reduce his sentence further, finding that United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), did not
apply to § 3582(c)(2) proceedings.
Staley argues that Booker’s remedial holding, rendering the guidelines
advisory, applies in § 3582(c)(2) proceedings, thus authorizing the district court to
reduce his sentence below the amended guideline range. Staley urges us to follow
the Ninth Circuit’s decision in United States v. Hicks, 472 F.3d 1167 (9th Cir.
2007), holding that Booker already rejected, without exception, the government’s
proposal to apply the guidelines as advisory in one context, but mandatory in
another. Staley additionally argues that the district court must apply the
Sentencing Guidelines that are in effect at the time of resentencing, and, therefore,
since the Sentencing Guidelines are currently advisory, the district court must
consider the guidelines as advisory.
We review “a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343
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(11th Cir. 2003). However, in the § 3582(c)(2) context, we review “de novo the
district court’s legal conclusions regarding the scope of its authority under the
Sentencing Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir.
2002). We also review “de novo questions of statutory interpretation.” United
States v. Maupin, 520 F.3d 1304, 1306 (11th Cir. 2008).
This Court has recently rejected Staley’s argument that the district court has
the authority to apply Booker in a § 3582 resentencing. United States v. Melvin,
__ F.3d __ , 2009 WL 236053 at *3 (11th Cir. Feb. 3, 2009) (holding "that Booker
and Kimbrough do not apply to § 3582(c)(2) proceedings" and 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."). Therefore, the decision of the district court is
AFFIRMED.
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