[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 27, 2007
No. 06-16067 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 91-00413-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NARCISCO F. SUAREZ,
a.k.a. Nene,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 27, 2007)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Narcisco F. Suarez, proceeding pro se, appeals the district court’s denial of
his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. In 1991, a grand jury
returned a superseding indictment against Suarez charging him, along with 14
codefendants, with one count of conspiracy to possess a mixture and substance
containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
and 846, and three counts of distributing a mixture and substance containing a
detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2. In 1993, a jury found Suarez guilty on all counts.
Before Suarez’s sentence hearing, an updated presentence investigation
report found that Suarez was responsible for 1,669 kilograms of cocaine and
assigned him a base offense level of 36 pursuant to U.S.S.G. § 2D1.1 (Nov. 1988).
The PSR then applied a two-level enhancement for behavior resulting in serious
bodily injury, § 2D1.1(a)(2), and a two-level enhancement for possession of a
firearm during the commission of the offense, § 2D1.1(b)(1), resulting in a total
offense level of 40. With a criminal history category of I, and a total offense level
of 40, Suarez’s guideline range was 292 to 365 months imprisonment.
During Suarez’s sentence hearing, on April 27, 2001, he raised an Apprendi
objection based on the PSR holding him responsible for more cocaine than was
admitted by him or found beyond a reasonable doubt by the jury. The district court
denied the objection, based on its interpretation that Apprendi only applied when
2
the guideline range exceeded the statutory maximum. Suarez also objected to both
of the two-level enhancements. With the government’s consent, the court
sustained Suarez’s objection to the enhancement for serious bodily injury, bringing
Suarez’s total offense level down to 38. The court then sentenced Suarez to 235
months imprisonment, a sentence at the low end of the guideline range. Suarez
timely appealed, but he later filed a voluntary dismissal of the appeal, which was
granted by this Court on August 14, 2001.
In May 2006, Suarez filed with the district court a pro se motion for
reduction of sentence, pursuant to 18 U.S.C. § 3582(c)(2). Suarez argued that the
district court attributed to him a larger amount of cocaine than was admitted by
him or found beyond a reasonable doubt by the jury, in violation of United States
Sentencing Guidelines Amendment 591, Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004).
The district court denied the motion, holding that Amendment 591 applies to
the court’s selection of the defendant’s offense guideline, and not to judicial
findings of actual conduct. The court also noted that the amendment did not
provide help to inmates trying to bypass the non-retroactivity of Apprendi and
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Suarez appealed,
3
arguing that: (1) the district court erred by denying his § 3582(c)(2) motion
because the court violated Amendment 591, Apprendi, and Blakely by
impermissibly calculating his offense level within U.S.S.G. § 2D1.1, based on
judicial findings regarding the amount of drugs attributed to him that were not
admitted by him or found beyond a reasonable doubt by the jury; and (2) because
of this error, he is entitled to be resentenced under Apprendi.1
We review a district court’s decision not to reduce a defendant’s sentence
pursuant to § 3582(c)(2) only for abuse of discretion. United States v. Brown, 332
F.3d 1341, 1343 (11th Cir. 2003). Additionally, “[p]ro se pleadings are held to a
less stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998).
Generally, “the court may not modify a term of imprisonment once it has
been imposed.” 18 U.S.C. § 3582(c). Section 3582(c)(2) “does not grant to the
court jurisdiction to consider extraneous resentencing issues.” United States v.
Bravo, 203 F.3d 778, 782 (11th Cir. 2000). Instead, § 3582(c)(2) permits a district
court to modify an imposed term of imprisonment only “in the case of a defendant
1
Suarez also argues that United States v. Moreno, 421 F.3d 1217 (11th Cir. 2005), is no
longer good law in light of the Supreme Court’s decisions in Blakely and Booker. However, this
argument is without merit, given that Moreno was decided after Booker and its predecessors and,
in fact, discusses the implications of Booker. See Moreno, 421 F.3d at 1220–21.
4
who has been sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing Commission pursuant to [its
Guidelines amendment power under] 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2);
see also Moreno, 421 F.3d at 1220 (“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.”); United States v. Stossel, 348 F.3d 1320,
1322 n.2 (11th Cir. 2003) (stating that a § 3582(c)(2) motion is appropriate only
where the defendant argues that “his sentence should be modified based on a
subsequent sentencing guideline amendment.”).
However, where a defendant has been sentenced pursuant to a sentencing
range that has subsequently been lowered by the Sentencing Commission, “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). The applicable policy statement in this
case is U.S.S.G. § 1B1.10(a), which provides:
Where 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). If none of
the amendments listed in subsection (c) is applicable, a reduction in
5
the defendant’s term of imprisonment . . . is not consistent with this
policy statement and thus is not authorized.
U.S.S.G. § 1B1.10(a).
Amendment 591 modified U.S.S.G. § 1B1.1(a) by replacing the existing
language with the following, concerning the very first step in calculating the
appropriate guideline range: “Determine, pursuant to § 1B1.2 (Applicable
Guidelines), the offense guideline section from Chapter Two (Offense Conduct)
applicable to the offense of conviction. See 1B1.2.” U.S.S.G. App. C. The
amendment became effective on November 1, 2000, id., and it may be applied
retroactively by using a § 3582(c)(2) motion. See U.S.S.G. § 1B1.10(c); United
States v. Pelaez, 196 F.3d 1203, 1205 n.3 (11th Cir.1999).
Suarez argues that the district court erred by denying his § 3582(c)(2)
motion because the court violated Amendment 591 by impermissibly calculating
his offense level within U.S.S.G. § 2D1.1, based on judicial findings regarding the
amount of drugs attributed to him that were not admitted by him or found beyond a
reasonable doubt by the jury. However, Amendment 591 was already in effect at
the time of Suarez’s April 2001 sentence hearing—Suarez admitted this fact in his
motion to the district court, as well as in his opening and reply briefs. Therefore,
Amendment 591 was not a “subsequent sentencing guideline amendment,”
cognizable in a § 3582(c)(2) motion. See 18 U.S.C. § 3582(c)(2); see also Stossel,
6
348 F.3d at 1322 n.2. Instead, Suarez’s argument that the district court violated
Amendment 591 by improperly calculating his guideline range—an argument that
was available to him at the time of his sentencing—is an issue that he should have
addressed in his direct appeal to his sentence, which he voluntarily dismissed. See
United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005) (“[A]s was the
case before Booker, the district court must calculate the Guidelines range
accurately.”).
Suarez’s argument that the district court erred by denying his motion
because the district court violated Apprendi and Blakely does not change this
result. Under the plain language of the statute, only changes to the guidelines
made by the Sentencing Commission after the defendant’s sentence hearing, not
Supreme Court decisions, can be used as a basis for a § 3582(c)(2) motion. See 18
U.S.C. § 3582(c)(2); see also Moreno, 421 F.3d at 1220 (“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.”). Therefore, the district court correctly denied Suarez’s § 3582(c)(2)
motion.
AFFIRMED.
7