[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 1, 2008
THOMAS K. KAHN
No. 07-12036
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 95-06031-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRACY TOPAZ TURNER,
a.k.a. Tracy Thomas,
a.k.a. Tony Brow,
a.k.a. Tony H. Brown,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 1, 2008)
Before BIRCH, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Tracy Topaz Turner, a federal prisoner proceeding pro se, appeals the denial
of his motion for a reduction in sentence based on Amendment 484 to the
Sentencing Guidelines, filed pursuant to 18 U.S.C § 3582(c)(2), and subsequent
motion for reconsideration. Turner argues that the district court abused its
discretion in denying his § 3582 motion and his motion for reconsideration because
Amendment 484 is retroactive and, accordingly, should be applied to adjust his
sentence. Specifically, Turner argues that the district court erred in sentencing him
based on a finding that he was responsible for 61.4 grams of cocaine base (“crack
cocaine”) because the drugs seized in the case were wet at the time they were
weighed and analyzed. Turner asserts that Amendment 484 dictates that water
weight must be excluded from the weight of usable crack cocaine attributable to
his conduct. Accordingly, Turner contends that we should remand for resentencing
in order to recalculate the drug quantity attributable to his conduct based on its dry
weight. For the reasons set forth more fully below, we affirm.
In 1995, a federal grand jury indicted Turner and codefendants Clinton
Burns and Norman Robinson for one count of conspiracy to possess with intent to
distribute crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and two
counts of possession with intent to distribute crack cocaine, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
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Following a jury trial, Turner was found guilty on all three counts. The
district court sentenced Turner to concurrent terms of 360 months’ imprisonment
as to each count. We affirmed Turner’s conviction and sentence. Turner
subsequently filed the instant motion to reduce his sentence, pursuant to 18 U.S.C.
§ 3582(c)(2), which the district court summarily denied. Turner then filed a
motion for reconsideration, styled as a Fed.R.Civ.P. 59(e) motion to alter or amend
judgment, which the district court also denied.
We review for abuse of discretion the district court’s denial of a § 3582(c)(2)
motion to reduce a sentence. United States v. White, 305 F.3d 1264, 1267 (11th
Cir. 2002) (per curiam) (citation omitted). Pursuant to § 3582(c)(2), a district court
may modify an imposed term of imprisonment “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.” 18 U.S.C.
§ 3582(c)(2). An amendment is retroactive for purposes of § 3582(c)(2) only if it
is listed in U.S.S.G. § 1B1.10(c). United States v. Armstrong, 347 F.3d 905, 907
(11th Cir. 2003); U.S.S.G. § 1B1.10(a) and comment. (n.1).
Amendment 484 to the sentencing guidelines, which became effective on
November 1, 1993, provides, in pertinent part, that, for sentencing purposes, the
definition of “mixture or substance” as used in 21 U.S.C. § 841 and U.S.S.G.
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§ 2D1.1 “does not include materials that must be separated from the controlled
substance before the controlled substance can be used.” U.S.S.G. App. C, Amend.
484. The Sentencing Commission went on to explain that the amendment
addresses cases where “a controlled substance [is] bonded to, or suspended in,
another substance (e.g., cocaine mixed with beeswax); however, the controlled
substance is not usable until it is separated from the other substance.” Id. Because
this amendment is listed in U.S.S.G. § 1B1.10(c), it is available retroactively and
may provide the basis for a reduced sentence under § 3582(c)(2). Armstrong, 347
F.3d at 907; U.S.S.G. § 1B1.10(a) and (c), comment. (n.1).
In the instant case, although Amendment 484 is retroactive, Turner’s
argument fails because the amendment does not apply to his case. Because Turner
was sentenced in 1995, Amendment 484, which became effective in November
1993, is not a “subsequent” amendment within the meaning of § 3582(c)(2). Thus,
the district court did not have jurisdiction to consider Turner’s motion. See United
States v. Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir. 2003) (stating that a motion
could be addressed under § 3582(c) only if the appellant was arguing that his
sentence should be modified “based on a subsequent sentencing guideline
amendment”). Accordingly, the district court did not abuse its discretion in
denying Turner’s motion for a sentence reduction pursuant to 18 U.S.C.
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§ 3582(c)(2) or his motion for reconsideration.
In light of the foregoing, the district court’s denial of Turner’s 18 U.S.C.
§ 3582(c)(2) motion for reduction of his sentence is
AFFIRMED.
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