[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12759 ELEVENTH CIRCUIT
JANUARY 20, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00117-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY FONTAINE JONES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 20, 2009)
Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Gregory Fontaine Jones, proceeding pro se, appeals the district court’s
denial of his motion for modification of sentence, pursuant to 18 U.S.C.
§ 3582(c)(2), based on Amendments 706 and 711 to the Sentencing Guidelines.
For the reasons set forth below, we affirm.
I.
Jones pled guilty to (1) conspiracy to possess with intent to distribute 50 or
more grams of crack cocaine and (2) possession with intent to distribute 50 or
more grams of crack cocaine, all in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii). A probation officer determined that Jones’s guideline imprisonment
range was 210 to 262 months. However, the probation officer also noted that
Jones had two prior drug convictions and that, therefore, Jones’s statutory
mandatory minimum term of imprisonment, and guideline sentence, was life,
pursuant to § 841(b)(1)(A) and U.S.S.G. § 5G1.1(b). The government submitted
on Jones’s behalf a substantial assistance motion, pursuant to U.S.S.G. § 5K1.1
and 18 U.S.C. § 3553(e). At sentencing, the district court sentenced Jones to
concurrent terms of 240 months’ imprisonment as to each count, citing Jones’s
substantial assistance as the reason for departure.
Jones submitted, on April 11, 2008, a § 3582(c)(2) motion to reduce
sentence. The district court denied the motion, reasoning that the statutory
2
mandatory minimum term of imprisonment remained applicable and that no further
reduction was warranted beyond that already applied per the substantial assistance
motion.
II.
We review de novo “the district court’s legal conclusions regarding the
scope of its authority under the [Guidelines].” United States v. Moore, 541 F.3d
1323, 1326 (11th Cir. 2008). Pursuant to § 3582(c)(2), a district court may reduce
an already-incarcerated defendant’s sentence if the sentence was determined using
a guideline imprisonment range that retroactive amendments to the Guidelines
have reduced, and if such a reduction would be consistent with the policy
statements issued by the Sentencing Commission, which are contained in U.S.S.G.
§ 1B1.10. 18 U.S.C. § 3582(c).
The commentary to the Guidelines instructs that a defendant is not eligible
for a § 3582(c)(2) reduction “if the amendment [in question] does not have the
effect of lowering the defendant’s applicable guideline range because of the
operation of another guideline or statutory provision (e.g., a statutory mandatory
minimum term of imprisonment.)” U.S.S.G. § 1B1.10, comment. (n.1(A)). In a
recent published case, United States v. Williams, No. 08-12475, manuscript op. at
5-11 (11th Cir. Nov. 26, 2008), we held that this principle applied even where the
3
district court departed downward from a statutory mandatory minium term of
imprisonment pursuant to a § 5K1.1 motion. We reasoned that, (1) given the
statutory mandatory minimum term of imprisonment, the “district court’s point of
departure would not shift as a result of [Amendment 706’s] lowering of the crack
offense levels”; and (2) “the decreased sentence [imposed pursuant to the § 5K1.1
motion] should [not] be read to somehow eliminate the otherwise applicable
mandatory minimum.” Id. at 7, 9-10. We concluded that “[b]ecause [the
defendant] was subject to a statutory mandatory minimum that replaced his
original sentencing guideline range, he was not sentenced according to the base
offense level in § 2D1.1, even taking into account the § 5K1.1 downward
departure.” Id. at 11-12.
III.
The district court did not err in denying Jones’s motion for modification of
sentence, as it was not authorized to give such a reduction. See Moore, 541 F.3d at
1326. Jones was not eligible for a § 3582(c)(2) because he was sentenced pursuant
to a statutory mandatory minimum term of imprisonment, and departure therefrom
pursuant to a substantial assistance motion, rather than a guideline imprisonment
range that ultimately was altered under Amendment 706. See U.S.S.G. § 1B1.10,
comment. (n.1(A)); Williams, No. 08-12475, manuscript op. at 5-11. Indeed, had
4
Amendments 706 and 711 been in effect at the time of his sentencing, Jones’s
statutory mandatory minimum term of imprisonment nonetheless would have been
life and Jones’s substantial-assistance departure nonetheless would have been from
this point. See Williams, No. 08-12475, manuscript op. at 5-11. Accordingly, we
affirm.
AFFIRMED.
5