[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 28, 2008
No. 08-11652 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-60093-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDGAR WIGGINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 28, 2008)
Before BIRCH, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Edgar Wiggins, proceeding pro se, is appealing the district court’s denial of
his 18 U.S.C. § 3582(c)(2) motion for modification of his sentence based on
Amendment 706 to U.S.S.G. § 2D1.1, which lowered the base offense levels
applicable to crack cocaine offenses. See U.S.S.G. App. C, Amend. 706 (2007).
The district court denied Wiggins’s motion because he was originally sentenced
according to the statutory mandatory minimum, and not according to § 2D1.1
calculations. Based on our review of the record and analysis of U.S.S.G. §
5G1.1(b), 18 U.S.C. § 3582(c)(2), and Amendment 706, we discern no reversible
error and therefore AFFIRM.
I. BACKGROUND
In May 2003, Wiggins was indicted for possession with intent to distribute
at least five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count
One); possession of ammunition by a convicted felon, in violation of 21 U.S.C. §
922(g) (Count Two); and carrying a firearm during and in relation to a drug
trafficking scheme, in violation of 18 U.S.C. § 924(c) (Count Three). Wiggins
entered into a written a written plea agreement in which he pled guilty to Counts
One and Three, and Count Two was dismissed. R1-22, 25. According to the
presentence investigation report (“PSI”), the calculated sentence guideline range
for Count One was 51 to 63 months. However, because Wiggins’s offense
involved five grams or more of crack cocaine, he was subject to a 60 month
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mandatory minimum, pursuant to 21 U.S.C. § 841(b)(1)(B)(iii). Based on this
statute, the district court sentenced Wiggins to 60 months of imprisonment for
Count One. 21 U.S.C. § 841(b)(1)(B); R1-25 at 2.
In March 2008, Wiggins filed a 18 U.S.C. § 3582(c)(2) motion, seeking a
modification of his original sentence. R1-29. He requested that the court apply a
“newly calculated sentencing range,” in accordance with Amendment 706, which
lowered the offense levels in crack cocaine cases by two levels. Id. at 3. The
district court denied the motion because Wiggins was sentenced to the statutory
mandatory minimum for his offense, and thus even if Amendment 706 reduced the
guideline range, this would not change his sentence. R1-30 at 2. Wiggins filed a
motion for reconsideration, in which he contended that the district court has
authority to reduce his sentence to a term less than the mandatory minimum
sentence of 60 months. R1-31. The district court denied this motion for the same
reasons that it denied Wiggins’s original § 3582(c)(2) motion. R1-32.
II. DISCUSSION
On appeal, Wiggins maintains that the district court has the authority to
reduce his sentence, and reasserts his eligibility for a sentence reduction based on
Amendment 706. We review a district court’s decision to deny a § 3582(c)(2)
motion for abuse of discretion. United States v. Brown, 332 F.3d 1341, 1343 (11th
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Cir. 2003). An error of law can constitute an abuse of discretion. Id.
Amendment 706 allows a prisoner to seek a reduced sentence for crack
cocaine offenses as long as their sentence was determined using the guideline
range calculations in § 2D1.1. However, a prisoner is not eligible for a reduction if
“the amendment does not have the effect of lowering the his applicable guideline
range because of the operation of another guideline or statutory provision (e.g., a
statutory mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10,
comment. n.1(A). Thus in cases “[w]here a statutorily required minimum
sentence is greater than the maximum of the applicable guideline range, the
statutorily required minimum sentence shall be the guideline sentence.” U.S.S.G.
§ 5G1.1(b) (emphasis added). According to the plain language of U.S.S.G. §
5G1.1(b), the district court shall use the mandatory minimum as a sentencing floor
in cases falling under statutes such as 21 U.S.C. § 841(b)(1)(B).
Wiggins’s assertion that the district court should have the ability to depart
from a mandatory minimum sentence is without merit given the applicable statutes
and law. The district court sentenced Wiggins to 60 months of imprisonment
because the level calculations under § 2D1.1 yielded a sentence range that was
shorter than the statutorily required mandatory minimum. The district court does
not have the power to ignore U.S.S.G. § 5G1.1(b) and reduce a prisoner’s sentence
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to a term below the mandatory minimum. Wiggins contends that the mandatory
minimum actually becomes the guideline sentence and is, therefore, subject to
analysis under United States v. Booker, 543 U.S. 220 (2005). However, just
because the mandatory minimum sentence is sometimes treated as the sentencing
guideline, this does not mean that the two should be treated as legally analogous.
The Booker decision made the sentencing guidelines advisory and subject to
evaluation according to the 18 U.S.C. § 3553(a) factors, but the decision did not
reach any issues involving statutorily required mandatory minimums. Booker, 543
U.S. at 259, 261, 264. The mandatory minimum is not advisory, and the district
court in this case was not authorized to sentence Wiggins to a prison term shorter
than 60 months.
III. CONCLUSION
Based on the language of U.S.S.G. § 5G1.1(b), the district court cannot
sentence Wiggins to any less than the statutorily required 60 month mandatory
minimum sentence. Because Wiggins’s sentence was based on something other
than an offense level calculation under § 2D1.1, he was precluded from receiving a
§ 3582 reduction in his sentence based on Amendment 706. The district court did
not err in its interpretation and application of the law, and therefore we affirm.
AFFIRMED
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