[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 1, 2008
No. 06-15563 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 95-06031-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLINTON BURNS,
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:
Clinton Burns, 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). Burns argues that the district
court abused its discretion in denying his § 3582 motion because Amendment 484
is retroactive and, accordingly, should be applied to adjust his sentence.
Specifically, Burns 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 there was no evidence to confirm the actual amount of cocaine as
separated from the cutting agent used to produce it. Accordingly, Burns asserts
that we should remand for resentencing in order to recalculate the drug quantity
attributable to his conduct, or to sentence him based on the Guidelines for powder
cocaine. Burns also argues that his trial counsel was ineffective. For the reasons
set forth more fully below, we affirm.
In 1995, a federal grand jury indicted Burns and codefendants Tracy Topaz
Turner 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) (Count 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 (Counts 2 and 3). The government filed a
notice of prior felony drug convictions, indicating that Burns was previously
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convicted of several felony drug offenses including possession of marijuana,
possession of cocaine, delivery of cocaine, and delivery of cocaine within 1000
feet of a school, all in violation of Florida state law. The government asserted that
these convictions made Burns eligible for a sentencing enhancement, pursuant to
21 U.S.C. § 851.
Following a jury trial, Burns was found guilty on all three counts. Based on
the § 851 enhancement, the district court sentenced Burns to life imprisonment as
to Count 1. As to Counts 2 and 3, the court sentenced Burns to 262 months’
imprisonment, to run concurrently with sentence in Count 1. We affirmed Burns’s
conviction and sentence. Burns subsequently filed the instant motion to reduce his
sentence, pursuant to 18 U.S.C. § 3582(c)(2), which the district court summarily
denied.
As an initial matter, to the extent Burns argues that his trial counsel was
ineffective, because claims of ineffective-assistance-of-counsel are best presented
in a collateral attack via a 28 U.S.C. § 2255 motion, we decline to consider this
issue. See Massaro v. United States, 538 U.S. 500, 504-05, 508, 123 S.Ct. 1690,
155 L.Ed.2d 714 (2003).
We review for an 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,
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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.
§ 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
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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, Burns’s
argument fails because the amendment does not apply to his case. Because Burns
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 Burns’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 Burns’s motion for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2).
In light of the foregoing, the district court’s denial of Burns’s 18 U.S.C.
§ 3582(c)(2) motion for reduction of his sentence is
AFFIRMED.
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