[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 26, 2005
No. 04-15950
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 95-00091-CR-002
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTHEW MARK MORENO,
a.k.a. Diamond,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 26, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Matthew Mark Moreno, proceeding pro se, appeals the denial of his motion
for a sentence reduction under 18 U.S.C. § 3582(c)(2). On appeal, Moreno
challenges the district court’s findings that (1) Amendment 591 to the Sentencing
Guidelines does not provide a basis to reduce his sentence, and (2) United States v.
Booker, 543 U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), does not provide a
jurisdictional basis for the district court to consider his post-sentencing
rehabilitative efforts in a § 3582(c)(2) motion.
I.
In January 1996, Morena was convicted of conspiracy to possess with intent
to distribute, in violation of 21 U.S.C. § 846 and possession with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). The jury also returned a verdict of
forfeiture in the amount of $100,000. Moreno was sentenced to 360 months
imprisonment and a five year supervised release term. This court affirmed his
sentence. United States v. Moreno, 130 F.3d 443 (11th Cir. 1997).
Moreno now argues that Amendment 591 retroactively prohibits the district
court from selecting the base offense level pursuant to United States Sentencing
Guidelines (U.S.S.G.) § 2D1.2 where the judge (not the jury) found the requisite
drug quantity used in determining the appropriate base offense level under the
applicable offense guideline. He contends, as he did in the district court, that his
base offense level should have been 24, according to the jury verdict in his case,
which did not reference a drug quantity. He admits that § 2D1.1 was the
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appropriate offense guideline, but argues that the district court’s selection of a base
offense level of 38 within § 2D1.1 was improper because the offense level was not
based solely on the jury verdict.
We review a district court’s decision not to reduce a sentence pursuant to
§ 3582(c)(2) for abuse of discretion. United States v. Brown, 332 F.3d 1341, 1343
(11th Cir. 2003).
II.
Generally, a district court may not modify a term of imprisonment once
imposed; however, “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by
the Sentencing Commission,” upon a defendant’s motion, “the court may reduce
the term of imprisonment, after considering the factors set forth in section 3553(a)
to the extent that they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2). Section 1B1.10 of the Sentencing Guidelines states, “[w]here 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, a reduction in the defendant’s
term of imprisonment is authorized under 18 U.S.C. §3582(c)(2).” U.S.S.G.
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§ 1B1.10(a). Amendment 591 is listed as an amendment covered by the policy
statement. U.S.S.G. § 1B1.10(c).
Amendment 591 requires that the initial selection of the offense guideline be
based only on the statute or offense of conviction rather than on judicial findings of
actual conduct not made by the jury. See U.S.S.G. App. C, amend. 591 (2003).
Amendment 591 explains that the change was designed to clarify whether
enhanced penalties provided by U.S.S.G. § 2D1.2 (relating to drug offenses near
protected locations or involving underage or pregnant individuals) apply only
where the offense of conviction is referenced to that guideline, or whether such
enhanced penalties can be used whenever a defendant’s relevant, uncharged
conduct includes drug sales in a protected location or drug sales involving a
protected individual. Id. Specifically, “in order for the enhanced penalties in §
2D1.2 to apply, the defendant must be convicted of an offense referenced to §
2D1.2, rather than simply have engaged in conduct described by that guideline.”
Id. In short, Amendment 591 directs the district court to apply the guideline
dictated by the statute of conviction, but does not constrain the use of judicially
found facts to select a base offense level within the relevant guideline. See id.
We have not addressed in this circuit Amendment 591 in the context of a
§ 3582(c)(2) motion. The Second Circuit has, however, addressed the issue and
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held that “Amendment 591 applies only to the choice of the appropriate offense
guideline, not to the selection of the base offense level” set forth by the guideline.
United States v. Rivera, 293 F.3d 584, 586 (2d Cir. 2002); see also United States v.
Hurley, 374 F.3d 38, 40-41 (1st Cir. 2004). The argument “that Amendment 591
governs the selection of the base offense level within the offense guideline selected
. . . confuses two distinct steps taken to arrive at a guidelines sentence: [1] selection
of the applicable offense guideline, and [2] selection of the base offense level
within that applicable offense guideline.” Id. We agree with the reasoning of our
sister circuits and hold that because Amendment 591 only applies to the selection
of the relevant offense guideline, not the selection of a base offense level within
the applicable offense guideline, the district court did not abuse its discretion by
denying Moreno’s § 3582(c)(2) motion.
III.
Moreno argues that the district court was previously constrained by 18
U.S.C. § 3553(b), which made the guidelines mandatory, from reducing his
sentence based on his post-sentencing rehabilitative efforts. Moreno asserts for the
first time on appeal that, after Booker, the guidelines are no longer binding, so this
case should be remanded to allow the district court to determine whether a
reduction under § 3582(c)(2) is warranted.
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When a defendant fails to raise an error in the district court, we may not
correct the error “unless there is: (1) error, (2) that is plain, and (3) that affects
substantial rights. If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Fields, 408 F.3d 1356, 1360 (11th Cir. 2005) (quotation omitted).
Section 3582 only provides a district court with the discretion to reduce a
sentence following the lowering of a sentencing range by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). “[A] sentencing adjustment undertaken
pursuant to Section 3582(c)(2) does not constitute a de novo resentencing.” United
States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000). “[A]ll original sentencing
determinations remain unchanged with the sole exception of the guideline range
that has been amended since the original sentencing.” Id.
We have held that Booker does not apply retroactively to cases on collateral
review. Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005). We have also
held that the Supreme Court has not made Booker retroactively available on
collateral review for purposes of authorizing a second or successive § 2255 motion.
In re Anderson, 396 F.3d 1336, 1339-40 (11th Cir. 2005).
After reviewing the record, we conclude that the district court did not plainly
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err by determining that § 3582(c)(2) did not provide a jurisdictional basis to reduce
Moreno’s sentence based on his post-sentencing rehabilitative conduct. Further,
Booker is a Supreme Court decision, not a retroactively applicable guideline
amendment by the Sentencing Commission. Therefore, Booker is inapplicable to
§ 3582(c)(2) motions. The district court did not plainly err by determining that
neither § 3582(c)(2) nor Booker provided a jurisdictional basis to reduce Moreno’s
sentence based on his post-sentencing rehabilitative conduct.
For the foregoing reasons, we affirm the district court’s order denying
Moreno’s motion for sentence reduction and Moreno’s sentence.
AFFIRMED.
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