United States v. Kenneth Paulk

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50229
Plaintiff-Appellee,
v.  D.C. No.
2:92-cr-00738-TJH
KENNETH LAMONT PAULK,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Submitted February 2, 2009*
Pasadena, California
Filed June 24, 2009
Before: Harry Pregerson, Susan P. Graber, and
Kim McLane Wardlaw, Circuit Judges.
Per Curiam Opinion
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
7705
UNITED STATES v. PAULK 7707
COUNSEL
Carlton F. Gunn, Deputy Federal Public Defender, Los Ange-
les, California, for defendant-appellant Kenneth Paulk.
Daniel B. Levin, Assistant United States Attorney, Los Ange-
les, California, for plaintiff-appellee United States of Amer-
ica.
OPINION
PER CURIAM:
We must decide whether a defendant sentenced pursuant to
a statutory mandatory minimum is entitled to a reduction of
sentence under 18 U.S.C. § 3582(c)(2). We conclude that the
district court has no authority to reduce a sentence in these
circumstances, and we affirm the denial of the motion.
I.
Kenneth Paulk pled guilty to possession with intent to dis-
tribute cocaine base in violation of 21 U.S.C. § 841(a).
Though the probation office initially calculated Paulk’s base
guideline range as 135-168 months pursuant to United States
Sentencing Guidelines (“U.S.S.G.”) section 2D1.1, the district
court sentenced the defendant to the statutory mandatory
7708 UNITED STATES v. PAULK
minimum of 240 months under 21 U.S.C. § 841(b)(1)(A)(iii),
because Paulk had a prior conviction and pled guilty to pos-
sessing more than fifty grams of cocaine base. After Paulk’s
sentencing, the Sentencing Commission amended U.S.S.G
section 2D1.1 to lower the applicable sentencing range,
U.S.S.G. app. C, amend. 706., explicitly making the amend-
ment retroactive, U.S.S.G. § 1B1.10(c). Paulk filed a motion
to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2),
which the district court denied. Paulk timely appeals.
II.
We have jurisdiction to consider Paulk’s appeal under 28
U.S.C. § 1291. While we cannot review a district court’s dis-
cretionary refusal to reduce the defendant’s sentence under
§ 3582(c)(2), United States v. Lowe, 136 F.3d 1231, 1232-33
(9th Cir. 1998), we have jurisdiction to consider the legal
question of whether the pertinent guidelines amendment was
applicable to the defendant’s sentence, United States v. Town-
send, 98 F.3d 510, 513 (9th Cir. 1996) (per curiam). We
review the denial of a motion to reduce a sentence under
§ 3582(c) for abuse of discretion. United States v. Sprague,
135 F.3d 1301, 1304 (9th Cir. 1998).
III.
[1] Section 3582(c)(2) provides that when a defendant is
sentenced “based on a sentencing range that has subsequently
been lowered by the Sentencing Commission . . . the court
may reduce the term of imprisonment, after considering the
factors set forth in section 3553(a) . . ., if such a reduction is
consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis
added). According to the relevant policy statement, “a reduc-
tion . . . is not authorized under 18 U.S.C. 3582(c)(2) [if the]
amendment . . . is applicable to the defendant but the amend-
ment does not have the effect of lowering the defendant’s
applicable guideline range because of the operation of . . . a
UNITED STATES v. PAULK 7709
statutory mandatory minimum term of imprisonment[ ].”
U.S.S.G. § 1B1.10 cmt. n.1(A).
[2] Paulk is not entitled to a reduction because his sentence
was not “based on a sentencing range that has subsequently
been lowered by the Sentencing Commission,” 18 U.S.C.
§ 3582(c)(2), but rather was based on the statutory mandatory
minimum under 21 U.S.C. § 841. This mandatory minimum
“was not affected by the change in the [drug] equivalency
tables.” United States v. Mullanix, 99 F.3d 323, 324 (9th Cir.
1996). In Mullanix we also rejected the argument that the
defendant was entitled to resentencing because the mandatory
minimum could be avoided due to a subsequent statutory
enactment. Id. Therefore, we similarly reject Paulk’s argu-
ment that the mandatory minimum could be avoided on resen-
tencing due to the operation of Apprendi v. New Jersey, 530
U.S. 466 (2000). Finally, we note that all of our sister circuits
that have considered the question also have concluded that a
defendant whose sentence is controlled by a statutory manda-
tory minimum is not eligible for a sentence reduction under
§ 3582(c)(2). See United States v. Hood, 556 F.3d 226, 233
(4th Cir. 2009); United States v. Williams, 551 F.3d 182, 185
(2d Cir. 2009); United States v. Ganun, 547 F.3d 46, 47 (1st
Cir. 2008) (per curiam); United States v. Johnson, 517 F.3d
1020, 1023-24 (8th Cir. 2008); United States v. Poole, 550
F.3d 676, 679 (7th Cir. 2008); United States v. Williams, 549
F.3d 1337, 1339-42 (11th Cir. 2008) (per curiam).
[3] Because we determine that Paulk was not entitled to a
sentence reduction, we do not reach his remaining claims. The
district court properly declined to resentence Paulk under
§ 3582(c)(2).
AFFIRMED.