United States v. Ben Littles

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15776 ELEVENTH CIRCUIT
APRIL 22, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 01-00077-CR-J-25-HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BEN LITTLES,
a.k.a. Little Dog,
a.k.a. Ben Little,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 22, 2009)
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
In United States v. Littles, 66 Fed.Appx. 844 PIN (11 th Cir. 2003), we
affirmed Ben Littles’s conviction and 235 months’ prison sentence for conspiracy
to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. On
February 29, 2008, Littles moved the district court pursuant to 18 U.S.C.
§ 3582(c)(2) to reduce his sentence based on Amendment 706 to the Sentencing
Guidelines, which reduced base offense levels applicable to crack cocaine. The
district court, relying on a supplemental presentence report and U.S.S.G. § 1B1.10,
granted his motion and reduced his prison term to 188 months. Littles now
appeals, arguing that the district court erred in its application of § 3582(c)(2) when
it refused to sentence him below the minimum of the amended Guidelines sentence
range. He contends that, despite the language of § 1B1.10, which constrains the
court’s authority to vary from the amended sentence range, that section, like all of
the Guidelines, is merely advisory under United States v. Booker, 543 U.S. 220,
125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
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 sentence 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. The applicable policy
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statements, found in § 1B1.10, state that “the court shall not reduce the defendant’s
term of imprisonment under 18 U.S.C. § 3583(c)(2) and this policy statement to a
term that is less than the minimum of the amended guideline range.” U.S.S.G.
§ 1B1.10(b)(2)(A).
Littles’s arguments are foreclosed by precedent. We recently held that
Booker does not apply to § 3582(c)(2) proceedings and thus the court is bound by
the limitations imposed by § 1B1.10 and does not have the authority to sentence
below the amended Guidelines sentence range. See United States v Melvin, No.
08-13497, manuscript op. at 7 (11th Cir. Feb. 3, 2009) (holding that Booker does
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”), petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664).
AFFIRMED.
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