United States v. Warren Phillips

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14122 MAY 4, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 99-00002-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WARREN PHILLIPS,
a.k.a. Miami Duke,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 4, 2009)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Warren Phillips (“Phillips”), proceeding pro se, appeals the district court’s
denial of his motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2).
Phillips contends that Amendment 706 to the Sentencing Guidelines operates to
reduce his base offense level because he was not sentenced to a mandatory
minimum term of life imprisonment. We disagree and AFFIRM.
I. BACKGROUND
In 1999, a jury convicted Phillips of conspiracy to distribute cocaine and
cocaine base, in violation of 21 U.S.C. § 846 (Count One), and distribution of
cocaine and possession with intent to distribute cocaine, both in violation of 21
U.S.C. § 841(a)(1) (Counts Two and Three). See Exh. Folder 1 at 12, 30. Phillips
originally was sentenced to a term of life imprisonment, the mandatory minimum
sentence pursuant to 21 U.S.C. § 841(a)(1)(B), based on the government’s
enhancement information, filed in accordance with 21 U.S.C. § 851, which listed
Phillips’s three prior felony drug convictions. See Exh. Folder 1 at 22, 44.
Although the presentence investigation report (“PSI”) noted that Phillips’s
guideline sentence was calculated using U.S.S.G. § 2D1.1 instead of U.S.S.G §
4B1.1 (the career offender guideline), it also made clear that Phillips was
nonetheless subject to the statutory mandatory minimum sentence of life
imprisonment.
Phillips subsequently filed a motion to reopen his sentence based on a state
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court judgment modifying one of the convictions listed in the § 851 enhancement
information. R1-122. We ultimately denied Phillips’s motion to proceed on
appeal in forma pauperis (“IFP”) and noted that the corrected state conviction did
not affect his sentence, which, we stated, “was determined pursuant to U.S.S.G.
§ 2D1.1 and 21 U.S.C. § 841(b)(1)(A).” R1-136. On appeal, Phillips argues that
the state court modification of one of his prior convictions nullified the
government’s notice of enhancement and that our reference to § 2D1.1 in our order
denying his motion to proceed on appeal IFP now precludes us from finding that
he was sentenced to a mandatory minimum term of imprisonment.
II. DISCUSSION
“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) (per curiam). 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 subsequently has been lowered by
the Sentencing Commission. See 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 statements, found in U.S.S.G.
§ 1B1.10, prohibit a reduction where an “amendment does not have the effect of
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lowering the defendant’s applicable guideline range because of the operation of
another guideline or statutory provision (e.g., a statutory mandatory minimum term
of imprisonment).” U.S.S.G. § 1B1.10, comment. (n.1(A)). Moreover, a
sentencing adjustment under § 3582(c)(2) does not constitute a de novo
resentencing, and “all original sentencing determinations remain unchanged with
the sole exception of the guideline range that has been amended since the original
sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000). Finally,
we have held that where a defendant was sentenced to a statutory mandatory
minimum sentence, he is precluded from receiving a sentence reduction pursuant to
Amendment 706 and 18 U.S.C. § 3582(c)(2). See United States v. Williams, 549
F.3d 1337, 1341-42 (11th Cir. 2008) (per curiam).
In this case, we conclude that Phillips was sentenced to a statutory
mandatory minimum sentence of life imprisonment. The reference to § 2D1.1 in
our previous order was intended to highlight the fact that Phillips’s guideline
sentence was calculated pursuant to § 2D1.1, subject to § 841(a)(1)(B), as opposed
to the career offender guideline provision. This observation in no way modified
Phillips’s sentence or suggested that he was sentenced to anything other than the
statutory mandatory minimum sentence of life imprisonment. As such,
Amendment 706 does not have the effect of lowering his applicable guideline
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range. See Williams, 549 F.3d at 1341.
III. CONCLUSION
Phillips appeals the district court’s denial of his motion for a reduced
sentence pursuant to 18 U.S.C. § 3582(c)(2). Because he was sentenced to a
statutory mandatory minimum term of life imprisonment, Amendment 706 does
not lower his applicable guideline range. Consequently, Phillips is not eligible for
a reduced sentence. We AFFIRM.
AFFIRMED.
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