[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 2, 2009
No. 08-12469 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 92-00170-CR-BH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODNEY BLYTHE,
a.k.a. Hawk,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(April 2, 2009)
Before BIRCH, BLACK and FAY, Circuit Judges.
PER CURIAM:
Rodney Blythe, a federal prisoner proceeding pro se, appeals the district
court’s denial of his motion for a reduction of sentence, pursuant to 18 U.S.C.
§ 3582(c)(2), and the denial of his motion for reconsideration. Blythe was
convicted of drug offenses involving crack cocaine, and he filed his motion
pursuant to Amendment 706 to the sentencing guidelines, which lowered the base
offense levels applicable to crack cocaine. On appeal, Blythe argues the
sentencing court violated his right to due process of law by finding him responsible
for the amount of cocaine attributed to the conspiracy as a whole when that amount
was not reasonably foreseeable to him. Accordingly, Blythe claims the district
court erred in denying his § 3582 motion based on such an amount, and requests
resentencing to ascertain the correct amount of drugs for which he should be held
responsible. Blythe also argues that once a § 3582 motion is properly before the
district court, United States v. Booker, 125 S. Ct. 738 (2005), requires the
sentencing guidelines be re-applied as advisory, rather than mandatory. We review
each issue in turn, and affirm Blythe’s sentence.
I.
A district court may not modify a term of imprisonment once it has been
imposed except where expressly permitted by statute or by Fed. R. Crim. P. 35. 18
U.S.C. § 3582(c)(1)(B). One statutory exception to this general rule is relief under
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18 U.S.C. § 3582(c)(2), which provides:
[I]n the case 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),
upon motion of the defendant or the Director of the Bureau of Prisons,
or on its own motion, the court may reduce the term of imprisonment,
after considering the factors set forth in section 3553(a) to the extent
that they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). “We review a district court’s decision whether to reduce a
sentence pursuant to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the
sentencing guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d
1341, 1343 (11th Cir. 2003). However, in the § 3582(c)(2) context, “we review de
novo the district court’s legal conclusions regarding the scope of its authority under
the Sentencing Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th
Cir. 2002). We also review “de novo questions of statutory interpretation.” United
States v. Maupin, 520 F.3d 1304, 1306 (11th Cir. 2008).
A § 3582(c)(2) motion to reduce sentence does not provide the basis for de
novo resentencing. U.S.S.G. § 1B1.10(a)(3); United States v. Moreno, 421 F.3d
1217, 1220 (11th Cir. 2005). Accordingly, § 3582(c)(2) does not “grant to the
court jurisdiction to consider extraneous resentencing issues.” United States v.
Bravo, 203 F.3d 778, 782 (11th Cir. 2000). A district court should leave intact its
previous factual decisions from the sentencing hearing, including drug quantity
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calculations, when deciding whether to reduce a defendant’s sentence under
§ 3582. See United States v. Cothran, 106 F.3d 1560, 1563 (11th Cir. 1997).
Additionally, a reduction in the term of imprisonment is not consistent with
the guidelines policy statement, and therefore not authorized by § 3582(c)(2), if
“[a]n amendment listed in subsection (c) does not have the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B); see also
United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. 2003) (stating only
retroactively applicable amendments “that have the effect of lowering the
sentencing range upon which a sentence was based, may be considered for
reduction of a sentence under § 3582(c)(2)”).
On November 1, 2007, the Sentencing Commission promulgated
Amendment 706, which amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c).
U.S.S.G. App. C, Amend. 706. The effect of Amendment 706 is to provide a two-
level reduction in base offense levels for certain crack-cocaine offenses. See id.
The Commission made this amendment retroactively applicable, effective as of
March 3, 2008. See U.S.S.G., App. C, Amend. 713. However, Amendment 706
did not lower base offense levels for offenses involving greater than 4.5 kilograms
of crack cocaine. See U.S.S.G., App. C, Amend. 706; see also United States v.
Jones, 548 F.3d 1366, 1369 (11th Cir. 2008).
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Blythe’s argument that he should not be held responsible for the sentencing
court’s drug quantity finding fails because the district court was not required to re-
examine the sentencing court’s drug quantity determination in considering his
§ 3582(c)(2) motion. See Cothran, 106 F.3d at 1563. Accordingly, the district
court did not err in finding Blythe was responsible for over 4.5 kilograms of crack
cocaine based on the prior drug quantity finding to that effect at sentencing.
Moreover, because Blythe was responsible for over 4.5 kilograms of crack cocaine,
Amendment 706 did not change his applicable offense level under amended
U.S.S.G. § 2D1.1. See U.S.S.G., App. C., Amend. 706. Thus, because the
amendment did not lower Blythe’s guidelines range, the district court acted within
its discretion in denying his § 3582 motion. U.S.S.G. § 1B1.10(a)(2)(B); see also
Armstrong, 347 F.3d at 909.
II.
As noted above, we review de novo a district court’s legal conclusions
regarding the scope of its authority. White, 305 F.3d at 1267. Under Booker, a
district court must calculate the guidelines range and consult the § 3553(a) factors
to determine a reasonable sentence at a defendant’s original sentencing hearing.
See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). However, also as
noted above, the district court may not conduct a de novo resentencing based on a
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§ 3582(c)(2) motion. U.S.S.G. § 1B1.10(a)(3); Moreno, 421 F.3d at 1220. More
specifically, Booker cannot serve as a basis for a § 3582 sentence reduction where
Amendment 706 does not apply because of the high quantity of crack cocaine
involved in the offense of conviction. See Jones, 548 F.3d at 1368-69.
Accordingly, the district court did not err in declining to consider the 18 U.S.C.
§ 3553 factors, in light of Booker, as a basis for reducing Blythe’s sentence under
§ 3582(c)(2) because Blythe was ineligible for relief under Amendment 706.
AFFIRMED.
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