[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 22, 2008
No. 08-11585 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 90-08065-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAVON HEATH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 22, 2008)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Lavon Heath, a federal prisoner convicted of a crack cocaine offense,
appeals pro se the district court’s denial of his 18 U.S.C. § 3582 motion for
reduction of sentence based on Amendment 706 to U.S.S.G. § 2D1.1, which
lowered the base offense levels applicable to crack cocaine offenses. Heath
originally was held responsible for 240 kilograms of crack cocaine, resulting in the
maximum drug offense level of 38, with a guideline range of 292 to 365 months’
imprisonment. He was sentenced to 292 months’ imprisonment, and he
subsequently filed the instant § 3582 motion, asserting that he was eligible for a
sentence reduction based on Amendment 706, as his conviction was for a crack
cocaine offense. On appeal, Heath contends that the district court, in denying him
§ 3582 relief, improperly relied on the amount of crack cocaine that was attributed
to him at sentencing, which he had challenged. Further, he argues that, during his
§ 3582 proceedings, he was entitled to file a motion to suppress certain evidence
that was introduced at his criminal trial.
We review “a district court's decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343
(11th Cir. 2003). However, where the issue presented involves a legal
interpretation, review is de novo. United States v. Pringle, 350 F.3d 1172, 1178
(11th Cir. 2003).
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Although a district court generally cannot modify a term of imprisonment
once it has been imposed, an exception lies in § 3582(c)(2), where:
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 pursuant to 28 U.S.C. 994(o),
upon motion of the defendant or the Director of the Bureau of Prisons,
or on its own motion, the court may reduce the term of imprisonment,
after considering the factors set forth in [18 U.S.C. § 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) (emphasis added). A reduction of a term of imprisonment
is not “consistent with applicable policy statements issued by the Sentencing
Commission” – and is, therefore, not authorized under § 3582(c)(2) if the
amendment does not have the effect of lowering the defendant’s applicable
guideline range. U.S.S.G. § 1B1.10(a)(2)(B).
Amendment 706, which reduced the offense levels in crack cocaine cases
calculated pursuant to § 2D1.1(c) by two levels, became effective November 1,
2007. See U.S.S.G. App. C, Amend. 706 (2007). The Amendment was made
retroactive as of March 3, 2007, by incorporation into U.S.S.G. § 1B1.10(c). See
U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008).1 As a result of the
amendment, base offense level 38 now applies to an offense involving 4.5
1
The March 1, 2008 Supplement has been superseded by the May 1, 2008 Supplement and,
when used with the 2007 Manual, constitutes the operative Guidelines Manual effective May 1,
2008. See U.S.S.G. Cover (Supp. May 1, 2008).
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kilograms or more of crack cocaine, whereas base offense level 36 applies to an
offense involving at least 1.5, but fewer than 4.5 kilograms of crack cocaine.
U.S.S.G. § 2D1.1(c)(1), (2). Although the retroactive effect of Amendment 706
allows a defendant whose guideline imprisonment range was determined in
accordance with the offense level calculations under § 2D1.1 to seek a reduction in
his sentence, a defendant who was sentenced on the basis of 4.5 kilograms or more
of crack cocaine is not eligible for a sentence reduction because the amendment
does not have the effect of lowering the applicable guideline range. See U.S.S.G. §
1B1.10(a)(2)(B); U.S.S.G. § 2D1.1.
In making the determination of whether to apply a retroactive amendment to
an eligible defendant, the district court must: (1) substitute the amended guideline
range for the originally applied guideline range; and (2) consider the § 3553(a)
factors and determine whether or not to reduce the defendant’s original sentence.
United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998). If a defendant is not
eligible because an amendment is not applicable, however, the district court is not
required to engage in this two-step analysis. See U.S.S.G. § 1B1.10, comment.
(n.1(a)) (“[e]ligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered
only by an amendment listed in subsection (c) that lowers the applicable guideline
3582(c)(2) and this policy statement do not constitute a full resentencing of the
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defendant.” U.S.S.G. § 1B1.10(a)(3). Accordingly, § 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). Specifically, a district court should
leave intact its previous factual decisions from the sentencing hearing when
deciding whether to reduce a defendant’s sentence. See United States v. Cothran,
106 F.3d 1560, 1563 (11th Cir. 1997). In Cothran, we held that the district court
correctly declined to re-examine the number of marijuana plants involved in the
drug offense. Id.
Because Heath ultimately was held responsible for 240 kilograms of crack
cocaine, the amendment, which increased the threshold amount from 1.5 to 4.5
kilograms of crack cocaine for offense level 38 to apply, did not change his
guideline range, and thus, a sentence reduction was not authorized under
§ 3582(c)(2). Furthermore, to the extent that Heath challenges the original
sentencing court’s determination of the amount of crack cocaine attributable to
him, the district court was not required to re-examine that determination in
considering his § 3582(c)(2) motion. See Cothran, 106 F.3d at 1563. Finally, the
district court was not required to consider Heath’s extraneous sentencing issues
because he was not eligible for a sentence reduction. Accordingly, the district
court did not err in denying Heath’s § 3582 motion, and we affirm.
AFFIRMED.
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