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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14286
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-20971-PAS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDY AMEDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 6, 2013)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
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Andy Ameda, a federal prisoner convicted of crack cocaine offenses,
appeals the denial of his pro se 18 U.S.C. § 3582(c)(2) motion for a sentence
reduction based on Amendment 750 to the Sentencing Guidelines. After review,
we affirm.
Under § 3582(c)(2), a district court may reduce the prison sentence “of a
defendant who has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2); see also
U.S.S.G. § 1B1.10(a)(1). The district court may grant a § 3582(c)(2) motion only
“if such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A reduction is not consistent
with the Sentencing Commission’s policy statements if it is based on an
amendment that does not have the effect of lowering the defendant’s applicable
guidelines range. U.S.S.G. § 1B1.10(a)(2)(B).
Where the amendment to the guidelines reduces the defendant’s base offense
level, but does not change the sentencing range upon which the defendant’s
sentence was based, the district court is not authorized to grant the § 3582(c)(2)
motion. United States v. Berry, 701 F.3d 374, 376 (11th Cir. 2012). Thus, a
defendant is not eligible for a § 3582(c)(2) sentence reduction if the amendment
does not actually lower the defendant’s applicable guidelines range because the
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defendant’s sentence was based on the statutory mandatory minimum. United
States v. Mills, 613 F.3d 1070, 1077-78 (11th Cir. 2010); see also U.S.S.G.
§ 1B1.10 cmt. n.1(A).” 1 Here, the district court properly denied Ameda’s
§ 3582(c)(2) motion because Ameda’s sentence was based on the ten-year statutory
mandatory minimum in 21 U.S.C. § 841(b)(1)(A)(iii).
In 2007, Ameda was charged with conspiring with his brother to possess
with intent to distribute 50 grams or more of crack cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) and 846 (“Count 1”), and possessing with intent
to distribute 5 grams or more of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(iii) and § 2 (“Count 2”). Ameda pled guilty to Count 2 and
entered an Alford plea as to Count 1, which carried a statutory mandatory
minimum ten-year sentence.
Ameda entered an Alford plea on Count 1 because, although he maintained
he had not conspired with his brother, he knew that if he proceeded to trial, the
government would file a § 851 notice, which would subject him to a mandatory life
sentence on Count 1, and he agreed that the government could prove he was guilty
of Count 1 beyond a reasonable doubt. Ameda also indicated that he was
unwilling to agree to the total amount of drugs involved in the conspiracy because
not all of the lab reports had been finalized. The parties agreed that the district
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. Jones, 548 F.3d 1366, 1368 (11th Cir. 2008).
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court would determine the drug amount after holding a “mini-trial” on the issue.
The district court accepted Ameda’s pleas and found him guilty of both counts.
At his 2008 sentencing, Ameda did not dispute the amount of drugs
attributed to him as relevant conduct, which included the 5.9 grams Ameda
personally sold (the basis for Count 2) and an additional 53.6 grams Ameda’s
brother had sold (as part of the conspiracy charged in Count 1), for a total of 59.5
grams of a “mixture or substance” containing cocaine base. Ameda also did not
object to the Presentence Investigation Report’s calculation of his base offense
level at 30, pursuant to U.S.S.G. § 2D1.1(a)(3) (2008), based on the total amount
of crack cocaine involved or to the resulting advisory guidelines range of 130 to
162 months’ imprisonment.
Instead, Ameda argued that the district court should use the weight of the
actual cocaine base (43.8 grams), rather than the weight of the mixture (59.5
grams), so that Ameda would be subject to the five-year mandatory minimum in 21
U.S.C. § 841(b)(1)(B)(iii) rather than the ten-year mandatory minimum in
§ 841(b)(1)(A)(iii). The district court rejected Ameda’s argument and imposed the
ten-year mandatory minimum sentence.
Effective November 1, 2011, Amendment 750 lowered the base offense
levels for particular crack cocaine quantities in U.S.S.G. § 2D1.1(c). See U.S.S.G.
App. C., Amends. 748, 750. If Amendment 750 had been in place when Ameda
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was sentenced, Ameda’s offense level would have been 26, rather than 30. See
U.S.S.G. § 2D1.1(c)(7) (involving at least 28 grams, but less than 112 grams, of
cocaine base). Because Ameda’s sentence was based on the ten-year mandatory
minimum, however, Amendment 750 did not lower his sentencing range, the low
end of which remains 120 months. Thus, the district court was not authorized
under § 3582(c)(2) to reduce Ameda’s sentence. See Mills, 613 F.3d at 1078.
Ameda contends that at sentencing the district court attributed to him only
the 5.9 grams of crack cocaine he personally sold (which was the basis for Count
2), and thus he is subject to the five-year mandatory minimum in
§ 841(b)(1)(B)(iii) and not the ten-year mandatory minimum in § 841(b)(1)(A)(iii).
The record belies this claim. Ameda entered an Alford plea to Count 1 of the
indictment, which charged a drug distribution conspiracy involving 50 grams or
more of crack cocaine, in violation of § 841(b)(1)(A)(iii). At sentencing, Ameda
did not dispute the drug quantity attributed to him as relevant conduct except to
argue that the actual weight rather than the mixture weight should be used. The
sentencing court stated multiple times that it was required to impose the mandatory
minimum ten-year sentence and that it was varying “downward from the low end
of the guidelines [of 130 to 162 months] and . . . impos[ing] the minimum
mandatory.” Although the sentencing court discussed the 5.9 grams of crack
cocaine that were the basis for the substantive offense in Count 2, the sentencing
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court did not, as Ameda suggests, find that Ameda was responsible for only those
5.9 grams for sentencing purposes.
We further note that this Court already has concluded that Ameda’s
applicable mandatory minimum sentence was the ten-year mandatory minimum in
§ 841(b)(1)(A)(iii). In an earlier 28 U.S.C. § 2255 motion, Ameda raised a similar
challenge, couched as a due process claim, in which he argued, inter alia, that his
“mandatory minimum was not ten(10) years” because the sentencing court had
“impermissibly aggregated the drug amounts to reach the mandatory minimum
threshold.” The district court denied Ameda’s § 2255 motion. In an order denying
Ameda’s request for a Certificate of Appealability, this Court stated that at his plea
hearing, Ameda “acknowledged that the government could prove that he had
conspired to distribute 50 grams or more of crack cocaine, and that the mandatory
minimum sentence for such an offense was 10 years.” The Court further stressed
that “although Ameda filed no objections to his presentence investigation report,
the [sentencing] court allowed him to raise the issue of the appropriate amount of
drugs at sentencing.” The Court concluded that Ameda was not denied due
process. See Ameda v. United States, No. 11-14441 (11th Cir. May 24, 2012)
(unpublished).
Ameda also argues that the district court: (1) constructively amended the
indictment by accepting his Alford plea to Count 1; and (2) erred at the original
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sentencing by holding him responsible for 59.5 grams of crack cocaine as relevant
conduct. These issues are outside the scope of a § 3582(c)(2) proceeding. See
Dillon v. United States, 560 U.S. ___, 130 S. Ct. 2683, 2693-94 (2010)
(concluding that the district court properly declined to address the defendant’s
claims of original sentencing errors because they were not affected by the
guidelines amendment at issue and were “outside the scope of the proceeding
authorized by § 3582(c)(2)”).
For these reasons, the district court properly denied Ameda’s § 3582(c)(2)
motion.
AFFIRMED.
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