[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13264 ELEVENTH CIRCUIT
JANUARY 28, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 94-04066-CR-4-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXIS ANTONIO ROSARIO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 28, 2010)
Before DUBINA, Chief Judge, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Appellant Alexis Antonio Rosario, proceeding pro se, appeals the district
court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).
On appeal, Rosario argues that the district court erred in finding that it did not have
the authority to reduce his sentence under Amendment 706, which reduced the
base offense levels applicable to crack cocaine, because the presentence
investigation report (“PSI”) held him responsible for having more than 4.5
kilograms of crack cocaine.
“We review de novo a district court’s conclusions about the scope of its legal
authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983,
984 (11th Cir. 2008). A district court may modify a term of imprisonment in the
case of a defendant who was sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). Any reduction, however, must be
“consistent with applicable policy statements issued by the Sentencing
Commission.” Id. A reduction of a term of imprisonment is not “consistent with
applicable policy statements issued by the Sentencing Commission” – and is,
therefore, not authorized under § 3582(c)(2) – if the retroactive amendment does
not have the effect of lowering the defendant’s applicable guideline range.
U.S.S.G. § 1B1.10(a)(2)(B).
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In determining whether Amendment 706 reduced Rosario’s guideline range,
the district court was required to consider not only whether the amendment reduced
the drug quantity base offense level, but whether § 4B 1.1(b) produced a higher
offense level than his amended drug quantity offense level. See U.S.S.G.
§ 1B1.10(b)(1) (the court “shall determine the amended guideline range that would
have been applicable to the defendant if the amendment(s) . . . had been in effect at
the time the defendant was sentenced”). Proceedings under § 3582(c)(2) and
§ 1B1.10 do not constitute de novo resentencing, and all original sentencing
determinations remain unchanged with the sole exception of the guideline range
that has been amended since the original sentencing. U.S.S.G. § 1B1.10(a)(3);
United States v. Scott, 315 Fed. App’x 895 (11th Cir. 2009). We have held that a
defendant accountable for more than 4.5 kilograms of cocaine is not eligible for a
sentence reduction under Amendment 706. United States v. Jones, 548 F.3d 1366,
1369 (11th Cir. 2008), cert. denied, 129 S. Ct. 1657 (2009).
Here, the record reveals that Rosario was originally sentenced based upon
4.75 kilograms of crack cocaine that was attributed to him.1 As such, he was not
1
Even if we assume arguendo that the PSI attributed to Rosario less than 4.5 kilograms
of cocaine, as the parties suggest, we nevertheless find that he is ineligible for a sentence
reduction because he is a career offender. See United States v. Moore, 541 F.3d 1323, 1327-28
(11th Cir. 2008), cert. denied, 129 S. Ct. 965 (2009) (holding that Amendment 706 had no effect
on a career offender’s applicable guideline range).
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eligible for a sentence reduction, and the district court properly denied his
§ 3582(c)(2) motion. Accordingly, we affirm the district court’s order denying
Rosario a sentence reduction.
AFFIRMED.
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