United States v. Randolph Hubbard

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 3, 2009
No. 08-16843 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 94-00142-CR-1-LSC-ETC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDOLPH HUBBARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 3, 2009)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Randolph Hubbard is a federal prison inmate serving concurrent sentences
of 250 months for conspiracy to possess with intent to distribute cocaine base and
for possessing the drug with intent to distribute on two separate occasions. In
April 2008, Hubbard moved the district court pursuant to 18 U.S.C. § 3582(c)(2)
to reduce his sentence in accordance with Amendment 706 to the Sentencing
Guidelines, which reduced base offense levels for cocaine base offenses. The
district court found that Amendment 706 applied and reduced his prison term to
210 months. Nevertheless, the court denied his request for further reduction in
light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621(2005), and Kimbrough v. United States, 552 U.S. __, 128 S.Ct. 558, 169 L.Ed.2d
481 (2007). Hubbard now appeals the court’s decision, arguing that the court erred
by not reducing his sentence further based on those cases.
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). However, the Sentencing Guidelines provide that, in general, a district
court “shall not reduce the defendant’s term of imprisonment under 18 U.S.C. §
3582(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).
Hubbard’s argument is foreclosed by this court’s precedent. See United
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States v. Melvin, 556 F.3d 1190, 1193-94 (11th Cir. 2009), petition for cert. filed,
(U.S. Feb. 10, 2009) (No. 08-8664) (holding that Booker and Kimbrough do not
apply to § 3582(c)(2) proceedings and, accordingly, 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”).
AFFIRMED.
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