United States v. Tony Kimbro

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 13, 2009
No. 08-15889 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 94-05018-CR-5-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY KIMBRO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 13, 2009)
Before BARKETT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Tony Kimbro appeals the denial of his motion to reduce his sentence. 18
U.S.C. § 3582(c)(2). Kimbro moved to reduce his sentence based on Amendment
706 to the Sentencing Guidelines. We affirm.
“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). A district court may modify a term of imprisonment in
the case of a defendant who was sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). Any reduction, however, must be
“consistent with applicable policy statements issued by the Sentencing
Commission.” Id. We have held that, “[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).
Kimbro argues that, under United States v. Booker, 543 U.S. 220, 125 S. Ct.
738 (2005), the district court should have treated the Guidelines as advisory and
considered whether he was entitled to a reduced sentence in the light of the
statutory factors for sentencing, 18 U.S.C. § 3553(a), but that argument is
foreclosed by precedent. United States v. Melvin, 556 F.3d 1190, 1191–93 (11th
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Cir. 2009); United States v. Moreno, 421 F.3d 1217, 1220–21 (11th Cir. 2005).
Because Amendment 706 did not have the effect of lowering Kimbro’s guideline
range, he was ineligible for a sentence reduction. Moore, 541 F.3d at 1330. The
district court did not err in denying Kimbro’s motion.
AFFIRMED.
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