[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13350 ELEVENTH CIRCUIT
JANUARY 21, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 97-00074-CR-CAR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARENCE CLARK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(January 21, 2010)
Before BLACK, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Clarence Clark appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction. Upon review, we affirm.
Clark was charged with conspiracy to possess with intent to distribute crack,
possession with intent to distribute cocaine, and aiding and abetting the distribution
of crack. The government filed notice of its intent to seek enhanced penalties
under 21 U.S.C. §§ 841(b)(1) and 851. After a jury trial, Clark was convicted and
sentenced to life imprisonment based on the presentence investigation report
(“PSI”) and the guidelines calculations.
On direct appeal, this court concluded that the sentence violated Apprendi v.
New Jersey, 530 U.S. 466 (2000), because the judge, rather than the jury, had
determined the amount of drugs involved in the offenses. Therefore, because the
life sentence exceeded the maximum allowed under § 841(b)(1)(C), the court
vacated and remanded for resentencing. The probation officer did not prepare a
corrected PSI before resentencing. At resentencing in 2002, the district court
reduced the sentence to the statutory maximum of thirty years’ imprisonment under
§ 841(b)(1)(C). This court affirmed the amended sentence.
In 2008, Clark filed a pro se motion for a sentence reduction under 18
U.S.C. § 3582(c), alleging that Amendment 706 would have reduced his guidelines
range. The district court appointed counsel, who then filed a motion to withdraw
as counsel. Upon consideration, the court denied the § 3582(c) motion, granted
counsel’s motion to withdraw, and affirmed the sentence imposed. This appeal
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followed.
Clark argues that, because his original sentence was vacated for violating
Apprendi, the district court improperly relied on the guideline calculations set forth
in his original PSI when determining whether he was eligible for a sentence
reduction. He also contends that the district court failed to (1) calculate his
original and amended base offense levels and guideline ranges, (2) consider the 18
U.S.C. § 3553(a) sentencing factors, and (3) explain its reasons for denying a
sentence reduction.
We review a district court’s decision whether to reduce a sentence under
§ 3582(c)(2) for abuse of discretion and its conclusions regarding the scope of its
legal authority de novo. United States v. Williams, 549 F.3d 1337, 1339 (11th Cir.
2008).
A district court may modify a term of imprisonment in the case of a
defendant who was sentenced based on a sentencing range that subsequently has
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 thus is not authorized under § 3582(c)(2), if the retroactive
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amendment does not have the effect of lowering the defendant’s applicable
guideline range. U.S.S.G. § 1B1.10(a)(2)(B). “Where the statutorily authorized
maximum sentence is less than the minimum of the applicable guideline range, the
statutorily authorized maximum sentence shall be the guideline sentence.”
U.S.S.G. § 5G1.1(a). Under § 841(b)(1)(C), the statutory maximum sentence is
thirty years’ imprisonment. 21 U.S.C. § 841(b)(1)(C).
Here, the district court properly denied Clark’s § 3582(c) motion because
Amendment 706 did not reduce Clark’s guideline sentencing range and, therefore,
Clark was not eligible for a sentence reduction. Although the government
concedes that Clark’s offense level was determined under U.S.S.G. § 2D1.1, it
explains that the total offense level was 46,1 and the 2-level reduction under
Amendment 706 would only reduce his level to 44, leaving his guidelines range
unchanged and the statutory maximum under § 841(b)(1)(C) still applicable.
Moreover, Clark’s arguments challenging his original sentencing
calculations may not be raised in the present action, because § 3582(c)(2)
proceedings do not constitute de novo resentencings. United States v. Bravo, 203
F.3d 778, 781 (11th Cir. 2000). Finally, because Clark was not eligible for a
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In its statement of reasons at sentencing, the district court indicated the offense level
was 43. Clark concedes on appeal that it was 46. Even if the level was 43, Clark would not be
entitled to relief under § 3582(c) because his sentencing range would be thirty years.
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§ 3582(c) sentence reduction, the court was not required to consider the 18 U.S.C.
§ 3553(a) sentencing factors, and any error in failing to calculate Clark’s amended
base offense level and guideline range was harmless. Accordingly, we affirm the
district court’s denial of Clark’s § 3582 motion.
AFFIRMED.
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