[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13243 APRIL 28, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 97-00344-CR-T-23-E
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN LEE COLLINS,
a.k.a. Block,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 28, 2009)
Before TJOFLAT, DUBINA and FAY, Circuit Judges.
PER CURIAM:
John Lee Collins, who was convicted of a crack cocaine offense, pro se
appeals the denial of his motion for sentence reduction, pursuant to 18 U.S.C.
§ 3582(c)(2) and Amendment 706. The district court denied the motion because
Collins’s base offense level was determined using the career offender guideline,
U.S.S.G. § 4B1.1, rather that U.S.S.G. § 2D1.1. Collins argues that (1) his career
offender status did not preclude him from receiving a reduction; (2) the district
court should have re-sentenced him under United States v. Booker, 543 U.S. 220,
125 S.Ct. 738, 160 L.Ed.2d 621 (2005); and (3) the district court erred in
calculating his career offender guideline imprisonment range. For the reasons set
forth below, we affirm.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). A district court may reduce the 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.” 18 U.S.C. § 3582(c)(2). Amendment 706, which was made
retroactive by Amendment 713, reduced the offense levels in § 2D1.1 for crack
1
Upon Collins’s appeal from the district court’s denial of his motion, we ordered
Collins’s appeal stayed pending resolution of United States v. Moore. After deciding Moore, we
directed the parties to advise whether any issues remained unresolved. Based on the parties’
responses, we ordered that the matter be briefed.
2
cocaine offenses by two levels. See U.S.S.G. App. C, Amends. 706, 713 (2008).
Any sentence reduction, however, must be “consistent with applicable policy
statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The
applicable policy statements provide that “a reduction in the defendant’s term of
imprisonment is not authorized under 18 U.S.C. 3582(c)(2) and is not consistent
with this policy statement if . . . [a retroactive amendment] is applicable to the
defendant but the amendment does not have the effect of lowering the defendant’s
applicable guideline range because of the operation of another guideline or
statutory provision.” U.S.S.G. § 1B1.10, comment. (n.1(A)).
The district court did not err in denying Collins’s motion. See James, 548
F.3d at 984. First, Collins was sentenced as a career offender, and § 2D1.1 played
no ultimate role in his sentence. Thus, Amendment 706 did not effect the guideline
imprisonment range used to sentence Collins, and he was not eligible for a
reduction. 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, (U.S.
Mar. 9, 2009) (No. 08-8554) (“Where a retroactively applicable guideline
amendment reduces a defendant’s base offense level, but does not alter the
sentencing range upon which his or her sentence was based, § 3582(c)(2) does not
authorize a reduction in sentence”).
3
Also, regarding Collins’s Booker arguments, Booker does not provide an
independent basis for the district court to reduce a defendant’s sentence or give the
district court authority to grant a reduction beyond the two levels authorized by
Amendment 706. See United States v. Jones, 548 F.3d 1366, 1369 (11th Cir.
2008), cert. denied, (U.S. Mar. 23, 2009) (No. 08-8865) (holding that, where a
defendant is not eligible for sentence reduction under the Amendment, Booker
does not provide an independent basis for relief); United States v. Melvin, No. 08-
13497, manuscript op. at 7 (11th Cir. Feb. 3, 2009), petition for cert. filed, (U.S.
Feb. 10, 2009) (No. 08-8664) (holding that Booker and its progeny “do not
prohibit the limitations on a judge’s discretion in reducing a sentence imposed by
§ 3582(c)(2) and the applicable policy statement by the Sentencing Commission”).
Furthermore, to the extent that Collins argues that his career offender
guideline imprisonment range was calculated using the wrong base offense level, a
§ 3582(c)(2) motion is not the proper venue to pursue such a sentence-calculation
challenge. See United States v. Bravo, 203 F.3d 778, 780-81 (11th Cir. 2000)
(holding that, in substituting the amended base offense level for the originally
applied base offense level, the district court must leave intact all other guideline
application decisions made during the original sentencing); Moreno v. United
States, 421 F.3d 1217, 1220 (11th Cir. 2007) (holding that § 3582(c)(2)
4
proceedings do not constitute a full, or de novo, re-sentencing of the defendant).
Accordingly, because Collins has made no argument that merits relief, we affirm.
AFFIRMED.
5