[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 20, 2008
No. 08-11524 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-80081-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BARBARA POTTS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 20, 2008)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Barbara Potts, a federal prisoner, appeals the denial of her pro se motion to
reduce her sentence, filed pursuant to 18 U.S.C. § 3582(c)(2). After review, we
affirm.
I. BACKGROUND
In 2007, Potts pled guilty to one count of conspiracy to manufacture at least
50 grams of crack cocaine base and to possess with intent to distribute and to
distribute at least 50 grams of crack cocaine and at least 5 kilograms of powder
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(a) and 846. At sentencing,
Potts’s advisory guidelines range was 97 to 121 months’ imprisonment.1 However,
because Potts’s offense involved over 50 grams of cocaine base, Potts was subject
to a mandatory minimum ten-year sentence under 21 U.S.C. § 841(b)(1)(A) and
the low end of her guideline range was reset to 120 months under U.S.S.G.
§ 5G1.1(c)(2). See U.S.S.G. § 5G1.1(c)(2) (prohibiting a guidelines sentence
below the statutory mandatory minimum sentence). The government moved
pursuant to U.S.S.G. § 5K1.1 for a reduction in Potts’s sentence below the
statutory mandatory minimum based on Potts’s substantial assistance. The district
court granted the government’s motion on March 30, 2007 and imposed a 60-
month sentence based on Potts’s substantial assistance.
1
The presentence investigation report (“PSI”) calculated Potts’s base offense level of 32,
pursuant to U.S.S.G. § 2D1.1(c)(4), based on the amount of drugs involved in her offense. After
adjustments, Potts’s total offense level of 29 and criminal history category of II yielded an
advisory guidelines range of 97 to 121 months’ imprisonment.
2
In February 2008, Potts filed a pro se § 3582 motion to reduce her sentence,
citing Amendment 706 to the Sentencing Guidelines. Amendment 706 reduced the
offense levels under U.S.S.G. § 2D1.1 for offenses involving crack cocaine and
was made retroactive by Amendment 713. See U.S.S.G. app. C, amend 706, 713;
United States v. Stratton, 519 F.3d 1305, 1307 (11th Cir. 2008). Under
Amendment 706, Potts’s base offense level would be reduced by two levels,
yielding a potential guidelines range of 78 to 97 months’ imprisonment. See
U.S.S.G. § 2D1.1(c)(5) (Supp. May 1, 2008).2 However, even with Amendment
706, the low end of Potts’s actual guidelines range still would be 120 months’
imprisonment because of the ten-year statutory mandatory minimum. See
U.S.S.G. § 5G1.1(b).
The district court denied Potts’s § 3582 motion. The district court
acknowledged that Amendment 706, made retroactive by Amendment 713,
reduced the base offense level for crack cocaine offenses. The district court
concluded, however, that Potts was ineligible for a sentence reduction because
Potts’s advisory guidelines range was derived not from the drug quantity table in
§ 2D1.1(c), but from the mandatory minimum sentence of ten years’ imprisonment.
Thus, Amendments 706 and 713 did “not affect the statutory minimum that
2
Under the amended drug quantity tables, Potts’s base offense level would be 30, rather
than 32.
3
ultimately determined [her] sentence.”
Potts filed this appeal.3
II. DISCUSSION
Section 3582(c)(2) prohibits a court from modifying a term of imprisonment
after it has been imposed except “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).” 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1) (Supp. May
1, 2008). However, a reduction is not authorized by § 3582(c)(2) if “an
amendment listed in subsection (c) does not have the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B) (May 1,
2008).4
This Court recently explained that “a reduction under § 3582(c)(2) is not
authorized where ‘the amendment . . . is applicable to the defendant but the
amendment does not have the effect of lowering the defendant’s applicable
3
As a threshold matter we note that, although Potts filed her § 3582(c)(2) motion before
March 3, 2008, the date Amendment 713 took effect and made Amendment 706 retroactively
applicable, both the district court and this Court have jurisdiction over Potts’s § 3582(c)(2)
motion because the district court ruled on the motion after March 3, 2008. See United States v.
Moore, ___ F.3d ___, Nos. 08-11230, 08-11341, 08-11484, 08-11526, & 08-13132, 2008 WL
4093400, at *2 (11th Cir. Sept. 5, 2008).
4
We review a district court’s denial of a defendant’s § 3582(c)(2) motion for an abuse of
discretion. United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003).
4
guideline range because of the operation of another guideline or statutory provision
(e.g. a statutory mandatory minimum term of imprisonment).’” Moore, 2008 WL
4093400, at *4 (quoting U.S.S.G. § 1B1.10, cmt. n. 1(A) (Supp. May 1, 2008))
(omission in original). In Moore, this Court concluded that although Amendment
706 would have reduced the defendants’ base offense levels calculated under the
drug quantity table in U.S.S.G. § 2D1.1, “it does not have the effect of lowering
their applicable guideline ranges because of the application of the career offender
guideline.” Id. at *4.
Under the particular circumstances of Potts’s case, we cannot say the district
court abused its discretion in denying Potts’s § 3582(c)(2) motion. There is no
dispute that Amendment 706 is applicable to Potts and that it reduced her base
offense level. However, due to the operation of the applicable statutory mandatory
minimum ten-year sentence, Amendment 706 did not give the district court any
more discretion to impose a lower sentence. In other words, even after
Amendment 706, Potts’s guidelines sentencing range could not dip below 120
months absent the substantial assistance § 5K1.1 departure. See U.S.S.G.
§ 5G1.1(b); see also § 1B1.10(b)(2)(A)-(B) & cmt. n.3 (Supp. May 1, 2008)
(providing that a sentencing court shall not reduce a defendant’s sentence below
the minimum of the amended guidelines range). As the district court
5
acknowledged in ruling on Potts’s § 3582(c)(2) motion, Potts’ guidelines
sentencing range was driven by her statutory mandatory minimum.
The fact that the district court granted the government’s § 5K1.1 downward
departure motion also does not change the outcome. In Moore, both Moore and
Lawton also received § 5K downward departures. The Moore court pointed out
that the sentencing court did not use the offense level to calculate the guidelines
range but used the career offender designation to determine the guidelines range.
Moore, 2008 WL 4093400, at *5-6. Similarly, here the low end of Potts’s
guidelines range was driven by the statutory mandatory minimum and not her
offense level. Thus, the district court did not abuse its discretion in denying Potts’s
§ 3582(c)(2) motion.
AFFIRMED.
6