[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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FILED
No. 09-11433 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar
JULY 8, 2010
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JOHN LEY
CLERK
D. C. Docket No. 91-00176-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERMAINE GRAHAM,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(July 8, 2010)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Jermaine Graham, a pro se federal prisoner convicted of a crack cocaine
offense, appeals the denial of his 18 U.S.C. § 3582(c)(2) motion for a reduced
sentence based on Amendment 706 to the Sentencing Guidelines. No reversible
error has been shown; we affirm.
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 later has been lowered by the Sentencing Commission. 18 U.S.C. §
3582(c)(2). But a reduction of a term of imprisonment is unauthorized under
section 3582(c)(2) if the retroactive amendment “does not have the effect of
lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
Amendment 706 retroactively reduced by two the base offense levels in
crack cocaine sentences calculated pursuant to the drug quantity table, U.S.S.G. §
2D1.1(c). U.S.S.G. App. C, Amend. 713 (Supp. 1 May 2008). Whether a sentence
reduction is warranted under Amendment 706 is driven by drug quantity: if a
defendant is responsible for at least 4.5 kilograms of crack cocaine, Amendment
706 does not reduce his applicable guidelines range; and he is ineligible for a
sentence reduction under section 3582(c)(2). United States v. Jones, 548 F.3d
2
1366, 1369 (11th Cir. 2008), cert. denied, 129 S.Ct. 1657 (2009) (explaining that
“a base offense level of 38 still applies to defendants responsible for 4.5 kilograms
or more” of crack cocaine). At his original sentencing, Graham was held
accountable for 5 kilograms of crack cocaine. Therefore, Graham was responsible
for more than 4.5 kilograms of crack cocaine; Amendment 706 did not apply to
him; and the district court lacked authority to reduce his sentence. See id.
Here, it appears that the district court believed Amendment 706 did apply to
Graham: the court reduced Graham’s base offense level from 40 to 38 but, after
considering the 18 U.S.C. § 3553(a) sentencing factors, declined to grant Graham a
sentence reduction because, in part, Graham had shown no remorse for his acts.
On appeal, Graham argues that the district court abused its discretion in concluding
that he showed no remorse for his acts. Because the district court lacked authority
to grant a reduction under Amendment 706, it was error for the district court to
undertake an analysis of the sentencing factors. See United States v. Bravo, 203
F.3d 778, 780-81 (11th Cir. 2000) (describing the two-step process the district
court undertakes after it has determined that a retroactive amendment lowers a
defendant’s guidelines range and that, under the second step, the court must
consider the sentencing factors in section 3553(a) and determine whether, in its
discretion, it will reduce a defendant’s sentence).
3
But the error was harmless because the outcome of the section 3582
proceeding would not change absent the error; and Graham’s substantial rights
were not affected. See United States v. Olano, 113 S.Ct. 1770, 1778 (1993) (for an
error to affect substantial rights, it “must have affected the outcome of the district
court proceedings”). Because Graham was unentitled to a sentence reduction
under Amendment 706 based on the drug quantity for which he was accountable,
we affirm the district court’s denial of his section 3582(c)(2) motion. See United
States v. Mejia, 82 F.3d 1032, 1035 (11th Cir. 1996) (we may affirm on any
ground supported by the record).1
AFFIRMED.2
1
We also reject Graham’s argument that he had a Sixth Amendment right to counsel in
his section 3582(c)(2) proceeding. See United States v. Webb, 565 F.3d 789, 794-95 (11th Cir.
2009) (concluding that there is no constitutional right to counsel in a section 3582(c)(2)
proceeding).
2
In his initial brief, Graham raised claims about the disparity between crack and powder
cocaine and his due process rights. But in his reply brief, he concedes that these claims are
without merit. Thus, he has abandoned them.
4