[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 22, 2009
No. 08-15238 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00137-CR-RWS-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH BREWSTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 22, 2009)
Before TJOFLAT, DUBINA and ANDERSON, Circuit Judges.
PER CURIAM:
Kenneth Brewster, a federal prisoner convicted of possessing with the intent
to distribute at least five grams of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(iii), appeals the district court’s denial of his pro se
18 U.S.C. § 3582(c)(2) motion for reduction of sentence, based on Amendment
706 to the Sentencing Guidelines. On appeal, Brewster argues that he should have
received a two-level sentence reduction, despite his status as a career offender, in
light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005), and its progeny.
We review a district court’s decision to deny reduction of a defendant’s
sentence pursuant to § 3582(c)(2) for abuse of discretion. United States v.
Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005). Under § 3582(c)(2), a district
court may not reduce the term of imprisonment of an already incarcerated
defendant unless that defendant has been sentenced pursuant to a guideline range
“that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2).
Amendment 706 provides for a two-level reduction in the base offense level
for certain crack cocaine offenses. See U.S.S.G. App. C, Amend. 706. This
amendment was effective retroactively as of March 3, 2008. U.S.S.G. App. C,
Amend. 713. In Booker, the Supreme Court struck down the statutory provisions
that made the Sentencing Guidelines mandatory. Booker, 543 U.S. at 245, 258-60,
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125 S.Ct. at 756-67, 764-65. The Supreme Court further clarified that, under the
newly advisory Sentencing Guidelines, district courts possess the authority to
deviate from the 100-to-1 crack-to-powder cocaine ratio during sentencing.
Kimbrough v. United States, 552 U.S. ___, 128 S.Ct. 558, 575, 169 L.Ed.2d
481 (2007).
In addressing a § 3582(c)(2) motion, a district court must engage in a two-
part analysis: (1) by recalculating the sentence based on the amendment, “leav[ing]
all other guideline application decisions unaffected;” and (2) by exercising its
discretion, based on the 28 U.S.C. 3553(a) factors, to impose a new sentence or to
retain the original. U.S.S.G. § 1B1.10(b)(1); and see United States v. Vautier, 144
F.3d 756, 760 (11th Cir. 1998). This requirement, however, “is triggered only by
an amendment . . . that lowers the applicable guideline range.” U.S.S.G. § 1B1.10,
comment. (n.1(A)).
For example, “a reduction under § 3582(c)(2) is not authorized where ‘the
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.’” United States v. Moore, 541 F.3d 1323, 1327-28
(11th Cir. 2008) (quoting U.S.S.G. § 1B1.10, comment. (n.1(A))), cert. denied,
(U.S. Jan. 12, 2009) (No. 08-7610). Accordingly, we held that Amendment 706,
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which lowered base offense levels under U.S.S.G. § 2D1.1, could not provide relief
to defendants convicted of crack cocaine offenses who were sentenced as career
offenders under U.S.S.G. § 4B1.1, because U.S.S.G. § 2D1.1 “played no role” in
the calculation of their guideline ranges. Id. at 1327.
This rule also applies to career offenders who received departures for
substantial assistance pursuant to U.S.S.G. § 5K1.1, where “the court did not find
that the seriousness of [the defendants’] criminal history would be overrepresented
by application of § 4B1.1,” and there was no indication “that the court based [the
defendants’] sentence[s] on the guideline range that would have applied absent the
career offender designation.” Id. at 1330. Finally, this court has held that Booker
does apply in resentencing pursuant to § 3582. United States v. Melvin, __ F.3d __
, 2009 WL 236053 at *3 (11th Cir. Feb. 3, 2009) (holding “that Booker and
Kimbrough do not apply to § 3582(c)(2) proceedings” and that “Booker and
Kimbrough 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.”).
We conclude that Brewster was not eligible for a § 3582(c)(2) sentence
reduction. Amendment 706 did not lower Brewster’s applicable guideline range,
because his sentence was controlled by the career offender guidelines and the crack
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cocaine base offense level ultimately played no role in his sentence. While he
received a downward departure, it was based on his substantial assistance pursuant
to U.S.S.G. § 5K1.1, rather than the guideline range that would have applied absent
the career offender designation or a finding by the district court that U.S.S.G. §
4B1.1 was overly harsh.
Accordingly, the district court did not abuse its discretion by denying
Brewster’s § 3582(c)(2) motion, and we affirm.
AFFIRMED.
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