[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13216 ELEVENTH CIRCUIT
MAY 13, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 89-00004-CR-T-17-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY EUGENE LEE,
aka Jed,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 13, 2010)
Before EDMONDSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Jeffrey Eugene Lee, a federal prisoner convicted of crack cocaine offenses,
appeals the district court’s denial of his counseled 18 U.S.C. § 3582(c)(2) motion
for reduction of sentence based on Amendment 706. The issue on appeal is
whether the district court erred by concluding Lee was not eligible for a reduction
because he was subject to a mandatory minimum term of life imprisonment. After
review, we affirm.1
A sentence reduction under § 3582(c)(2) must be “consistent with applicable
policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(c)(2).
The applicable policy statements state that a sentence reduction is not authorized if
“[a]n amendment listed in subsection (c) does not have the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). A defendant
whose original sentence ultimately was based on something other than the offense
level calculation under § 2D1.1 is precluded from receiving a sentence reduction
because the amendment does not have the effect of lowering the applicable
guideline range. See United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.
2008), cert. denied., McFadden v. United States, 129 S. Ct. 965 (2009), and cert.
denied, 129 S. Ct. 1601 (2009).
1
“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).
2
Here, the district court did not err by denying Lee’s motion for relief under
§ 3582(c)(2) because his guideline range was based on the statutory minimum
sentence of life imprisonment and not on the base offense level in § 2D1.1. See
Moore, 541 F.3d at 1327; United States v. Williams, 549 F.3d 1337, 1342 (11th
Cir. 2008) (holding a defendant was not eligible for a sentence reduction under
Amendment 706 because he “was subject to a statutory mandatory minimum that
replaced his original sentencing guideline range”). Lee cannot challenge, in this
§ 3582(c)(2) proceeding, the district court’s original sentencing determination that
he was subject to the mandatory statutory minimum penalty. See United States v.
Bravo, 203 F.3d 778, 781 (11th Cir. 2000) ( stating “all original sentencing
determinations remain unchanged with the sole exception of the guideline range
that has been amended since the original sentencing”). Finally, to the extent Lee
argues the district court would have had the discretion to go below the amended
guideline range, his argument is foreclosed by precedent. United States v. Melvin,
556 F.3d 1190 (11th Cir.), cert. denied, 129 S. Ct. 2382 (2009). Accordingly, we
affirm the district court’s denial of Lee’s § 3582(c)(2) motion.
AFFIRMED.
3