[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13891 ELEVENTH CIRCUIT
APRIL 4, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 97-00213-CR-T-17TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HANDY BAILEY, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 4, 2011)
Before EDMONDSON, PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Handy Bailey, Jr., a pro se federal prisoner convicted of crack-cocaine
offenses, appeals the district court’s denial of his motion for “reexamination” of an
earlier denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction.
Bailey argues that the district court wrongly construed his pleading as a motion for
reconsideration instead of a new section 3582(c)(2) motion. Even if we accept
Bailey’s contention that his “reexamination” motion was a new section 3582(c)(2)
motion (and not a motion for reconsideration), no reversible error has been shown;
we affirm.
Bailey’s motion seeks a section 3582(c)(2) reduction of sentence in the light
of Amendment 713 to the sentencing guidelines and the Supreme Court’s decision
in Spears v. United States, 129 S.Ct. 840 (2009). Amendment 713, subject to
technical changes effected by Amendment 711, made retroactively applicable the
crack-cocaine offense-level revisions to U.S.S.G. § 2D1.1 that were effected by
Amendment 706. But Bailey was sentenced as a career offender under U.S.S.G. §
4B1.1; his guidelines range was not based on the crack-cocaine provisions of
U.S.S.G. 2D1.1. Because none of the sentencing guidelines amendments to which
Bailey cites have the effect of reducing the applicable guideline range for career
offenders, Bailey is entitled to no section 3582(c)(2) relief based on those
amendments. See United States v. Moore, 541 F.3d 1323, 1327-28 (11 th Cir.
2008).1
1
Bailey’s earlier filed motion for sentence reduction based on Amendments 706 and 711
to the sentencing guidelines was denied with citation to Moore. That denial was summarily
2
Bailey argues that Spears v. United States, 129 S.Ct. 840 (2009) implicitly
overruled Moore by holding that district courts have discretion to reject the
sentencing guidelines’ policy statements. Bailey’s reliance on Spears is misplaced.
Spears involved an original sentencing, not a sentence modification after
qualifying for relief under section 3582(c)(2). In the light of the limited scope and
purpose of section 3582(c)(2), sentence modifications under that section do not
implicate the interests identified in United States v. Booker, 125 S.Ct. 738 (2005).
Dillon v. United States, 130 S.Ct. 2683, 2692 (2010).
AFFIRMED.2
affirmed on appeal following the consolidation of Bailey’s appeal with other appeals from career
offenders seeking section 3582 relief. While we are accepting Bailey’s contention that his
citation to Amendment 713 and Spears allows the instant motion to be treated as a new section
3582(c) motion, the relief sought is based on the substantive change effected by Amendment
706.
2
Because we accept that Bailey filed a new section 3582(c)(2) motion, we need not
address the jurisdictional issues raised by the government about motions to reconsider criminal
matters.
3