[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 21, 2009
No. 08-14328
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 91-00146-CR-ORL-19JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK SIMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 21, 2009)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Frank Sims, a federal prisoner, appeals the denial of his pro se
motion filed pursuant to 18 U.S.C. § 3582(c)(2), to reduce his 360-month sentence
for conspiracy to possess with intent to distribute in excess of 50 grams of crack
cocaine and possession with intent to distribute approximately 300 grams of crack
cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(iii). On appeal,
Sims argues that he is not automatically ineligible for the reduction based on the
district court’s finding at the original sentencing that the offense involved more
than 15 kilograms of crack cocaine. Sims also argues that his sentence is above the
statutory maximum allowable based upon the jury’s verdict, in violation of
Apprendi.1 Sims also asserts that the district court should have rejected the
Commission’s policy statement under U.S.S.G. § 1B1.10 because it is inconsistent
with the § 3553(a)(2) sentencing purposes and the rationale behind Amendment
706. Finally, Sims argues that the policy statement violates the Equal Protection
and Due Process Clauses based on the Supreme Court’s rulings in Apprendi,
Booker2 , and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d
403 (2004), and may be rejected under Kimbrough3 because the guidelines are not
tied to empirical data.
1
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
2
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
3
Kimbrough v. United States, 552 U.S. __, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007).
2
“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).
Under § 3582(c)(2), a district court has discretion to reduce the term of
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). A reduction in the term of imprisonment is not
consistent with the Guidelines policy statement, and therefore not authorized by
§ 3582(c)(2), if “an 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).
I. Drug Quantity
Amendment 706, which is listed in U.S.S.G. § 1B1.10(c), was made
retroactive by Amendment 713. See U.S.S.G. App. C, Amend. 713; U.S.S.G.
§ 1B1.10(c). Amendment 706 reduced offense levels in certain crack cocaine
cases by two levels, as reflected in the drug quantity table in U.S.S.G. § 2D1.1(c).
See U.S.S.G. App. C, Amend. 706.
We have held that a defendant who was accountable for 4.5 kilograms or
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more of crack cocaine was not eligible for a sentence reduction under § 3582(c)(2)
and Amendment 706 because his base offense level remained at 38 and his
guideline range was not reduced. United States v. Jones, No. 08-13298, slip op. at
443-44 (11th Cir. Nov. 19, 2008).
Because the record demonstrates that Sims was held responsible at the
original sentencing for over 4.5 kilograms of crack cocaine, Amendment 706 did
not reduce his guideline range. See Jones, No. 08-13298, slip op. at 443-44.
Consequently, we conclude that the district court did not err by denying Sims’s
§ 3582(c)(2) motion, and we affirm as to this issue.
II. Sentence Reduction under Apprendi, Booker, Kimbrough, and § 3553(a)
In Booker, the Supreme Court held that the Sentencing Guidelines are
advisory. Booker, 543 U.S. at 258-260, 125 S. Ct. at 764-65. In Kimbrough, the
Court held that a district court could consider the crack cocaine/powder cocaine
disparity in considering the § 3553(a) factors at sentencing. Kimbrough, 552 U.S.
at __, 128 S. Ct. at 575. In Apprendi, the Court held that any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to
a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.
Ct. at 2362-63. Apprendi is not retroactively applicable. McCoy v. United States,
266 F.3d 1245, 1258 (11th Cir. 2001) (in the context of collateral review).
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A § 3582(c)(2) motion to reduce a 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, 781-82 (11th Cir. 2000). A district court should leave intact
its previous factual decisions from the sentencing hearing when deciding whether
to reduce a defendant’s sentence. See United States v. Cothran, 106 F.3d 1560,
1563 (11th Cir. 1997).
Because Booker is not a retroactively applicable guideline amendment, it is
inapplicable to § 3582(c)(2) motions. Moreno, 421 F.3d at 1220. Moreover, in
Jones we explicitly rejected an argument, from a defendant who was ineligible for
the reduction because of the amount of cocaine, that the district court nevertheless
had the authority to reduce his sentence under Booker. Jones, No. 08-13298, slip
op. at 443-44.
Because the § 3582(c)(2) proceedings were limited in scope, we conclude
that the district court properly declined to revisit the determination that Sims was
responsible for 15 kilograms of crack cocaine. See Cothran, 106 F.3d at 1563; see
also Bravo, 203 F.3d at 781-82. Additionally, because Apprendi, Booker,
Kimbrough, and the § 3553(a) factors do not provide an independent basis for
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reconsideration of a defendant’s sentence, we conclude that the district court did
not err in rejecting Sims’s argument that he was still eligible for a § 3582(c)(2)
sentence reduction. Consequently, we affirm as to this issue.
For the above-stated reasons, we affirm the district court’s order denying
Sims’s motion to reduce his sentence.
AFFIRMED.
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