[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10237 JULY 22, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 2:07-cr-14083-KMM-1
USA,
Plaintiff - Appellee,
versus
JESSE LEE SWANSON,
a.k.a. Jesse Lee Harvey,
a.k.a. Fred P. McKinnon,
a.k.a. Kevirent Brundage,
a.k.a. Jonathan Small,
a.k.a. Jesse Harvey,
a.k.a. Travis Cole,
a.k.a. Fred Lee McKinnon,
a.k.a. Jayfon Lee Mackey,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 22, 2010)
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Jesse Lee Swanson, proceeding pro se, appeals the district court’s denial of
his motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). Swanson
was sentenced to 327 months imprisonment after he pled guilty to one count of
conspiracy to possess with intent to distribute five grams or more of crack cocaine,
in violation of 21 U.S.C. § 846. After this court affirmed his sentence on direct
appeal, Swanson filed a section 3582(c)(2) motion based on Amendment 706 to
the Sentencing Guidelines, which lowered the offense levels that apply based on
the quantity of crack cocaine attributed to a defendant. On appeal, Swanson
argues that the district court erred in finding him ineligible for a sentencing
reduction on the ground that his guideline range was determined based on his
status as a career offender under U.S.S.G. § 4B1.1, and thus had not been
subsequently lowered by the Sentencing Commission. Because Amendment 706
2
became effective before Swanson was sentenced and was applied at his original
sentencing, we affirm.1
A district court has the authority to modify a defendant’s sentence if it was
“based on a sentencing range that has subsequently been lowered by the
Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2). Under this provision,
courts cannot modify a sentence unless a retroactively applicable amendment to
the Sentencing Guidelines has the effect of lowering the guideline range upon
which a defendant’s sentence was based. United States v. Armstrong, 347 F.3d
905, 909 (11th Cir. 2003). We review de novo a district court’s legal conclusions
about the scope of its authority under section 3582(c)(2). United States v. Moore,
541 F.3d 1323, 1326 (11th Cir. 2008). We review the denial of a section
3582(c)(2) motion for abuse of discretion. United States v. Jules, 595 F.3d 1239,
1241 (11th Cir. 2010).
Because Amendment 706 became effective before Swanson was sentenced
and was applied at his original sentencing, it did not subsequently lower his
guideline range. Amendment 706 became effective on November 1, 2007.
U.S.S.G. App. C, Amend. 706 (2007). Swanson was sentenced on June 9, 2008.
1
The district court denied the motion on a different ground, but we may affirm for any
reason supported by the record. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).
3
His guideline range was calculated pursuant to the 2007 Federal Sentencing
Guidelines Manual, which incorporated the revision mandated by Amendment
706. While Swanson’s guideline range was ultimately determined based on his
status as a career offender under U.S.S.G. § 4B1.1, his base offense level was also
calculated under U.S.S.G. § 2D1.1(c) and, pursuant to Amendment 706, reduced
by two levels because his offense involved crack cocaine. Therefore, the district
court had no authority under section 3582(c)(2) to modify Swanson’s sentence.
To the extent that Swanson challenges his original sentence – he argues that
both the crack-powder sentencing disparity and the inapplicability of Amendment
706's base offense level reduction to defendants sentenced as career offenders
violate the Equal Protection Clause – the district court properly declined to
address these arguments because they are outside the scope of a section 3582
proceeding. See United States v. Bravo, 203 F.3d 778, 781-82 (11th Cir. 2000)
(holding that district courts lack jurisdiction under section 3582(c) to consider
challenges to the original sentence or to change original sentencing determinations
“with the sole exception of the guideline range that has been amended since the
original sentencing.”). Swanson has also raised these equal protection claims in a
28 U.S.C. § 2255 motion pending in the district court, which is the proper vehicle
for a collateral attack on his original sentence.
4
Accordingly, we affirm the district court’s denial of Swanson’s § 3582(c)(2)
motion.
AFFIRMED.
5