[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 24, 2009
No. 08-14319 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 95-00123-CR-WTM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH RAMON SANDERS,
a.k.a. Phillip Hampton,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(February 24, 2009)
Before DUBINA, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Kenneth Ramon Sanders, a federal prisoner proceeding pro se,
appeals the district court’s partial grant of his motion to reduce sentence under 18
U.S.C. § 3582(c)(2).
Sanders argues that the district court erred in refusing to grant him a full
two-level sentence reduction, which would have reduced his sentence by 62
months. He also asserts that the district court failed to follow the required two-step
analysis, which involves substituting the amended guideline range for the original
guideline range and considering the § 3553(a) sentencing factors. Sanders also
argues that Booker1 is applicable to § 3582(c)(2) proceedings, and because his
sentence was reduced pursuant to § 3582(c)(2), the court should have treated the
Guidelines as advisory.
“In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), 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). Once eligibility under § 3582(c)(2) has been
established, we review for abuse of discretion a district court’s decision whether to
reduce a sentence pursuant to § 3582(c)(2). United States v. Jones, 548 F.3d 1366,
1368 n.1 (11th Cir. 2008).
Under § 3582(c)(2), a district court has discretion to reduce the term of
1
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
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imprisonment of an already incarcerated defendant if that defendant “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). In such a case, the court may reduce the
defendant’s sentence, after considering applicable § 3553(a) factors, “if such a
reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” Id.
The Sentencing Commission’s policy statement on retroactive reduction of
sentences, U.S.S.G. § 1B1.10, provides that:
In a case in which a defendant is serving a term of
imprisonment, and the guideline range applicable to that
defendant has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in subsection
(c) below, the court may reduce the defendant’s term of
imprisonment as provided by 18 U.S.C. 3582(c)(2). As
required by 18 U.S.C. 3582(c)(2), any such reduction in
the defendant’s term of imprisonment shall be consistent
with this policy statement.
U.S.S.G. § 1B1.10(a)(1). However, 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
3
Cir. 2003) (stating that 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)”).
Amendment 706, which reduced the § 2D1.1(c) offense levels in crack
cocaine cases, became effective November 1, 2007. See U.S.S.G. App. C. Amend.
706. The Sentencing Commission made the Amendment retroactive as of March 3,
2007, by incorporating it into § 1B1.10(c). See U.S.S.G. App. C, Amend. 713.
Prior to the amendment, base offense level 38 applied to drug offenses involving
1.5 kilograms or more of crack cocaine. See e.g., U.S.S.G. § 2D1.1(c)(1)(2006).
As a result of the amendment, base offense level 38 now applies to an offense
involving 4.5 kilograms or more of crack cocaine, whereas level 36 applies to an
offense involving at least 1.5 but fewer than 4.5 kilograms of crack cocaine.
U.S.S.G. § 2D1.1(c)(1), (2). Thus, although Amendment 706 reduced the offense
levels in certain crack cocaine cases by two levels, the base offense level for
sentences based on 4.5 kilograms or more of crack cocaine remained unchanged.
See U.S.S.G. App. C, Amend. 706.
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). A district court should leave intact
its previous factual decisions from the sentencing hearing when deciding whether
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to reduce a defendant’s sentence. See United States v. Cothran, 106 F.3d 1560,
1563 (11th Cir. 1997) (upholding district court’s refusal in a § 3582(c)(2)
proceeding to re-examine drug quantity). In addition, because Booker is not a
retroactively applicable guideline amendment, it is inapplicable to § 3582(c)(2)
motions as an independent basis to reduce a sentence. Jones, 548 F.3d at 1369
(holding that defendant was ineligible for a sentence reduction under Amendment
706, because more than 4.5 kilograms of crack cocaine were attributed to him, and
he could not otherwise rely on Booker for a reduction).
Because Amendment 706 in fact did not reduce Sanders’s guideline range,
we conclude that Sanders was not entitled to any further reduction.2 Moreover, he
was also not entitled to the benefit of Booker. See Jones, 548 F.3d at 1369
(holding that Booker is inapplicable to § 3582(c)(2) motions as an independent
basis to reduce a sentence). Accordingly, we affirm the district court’s order
refusing to grant Sanders a full two-level sentence reduction.
AFFIRMED.
2
Despite correctly concluding that the Amendment did not apply to Sanders, the district
court granted Sanders’s motion and reduced his sentence from 340 months to 324 months.
When a guideline amendment does not change a particular defendant’s offense level or
sentencing range, there is no basis for a reduction. See United States v. Moore, 541 F.3d 1323,
1330 (11th Cir. 2008), cert. denied, McFadden v. United States, ___ S. Ct. ___(U.S. Jan. 12,
2009) (No. 08-7610). However, the Government has not cross-appealed this issue, and this
Court seems precluded by recent Supreme Court precedent to correct this unappealed error to the
detriment of the defendant. See Greenlaw v. United States, ___ U.S. ___, 128 S. Ct. 2559, 2569
(2008).
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