[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12355 ELEVENTH CIRCUIT
November 18, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 95-00121-CR-WS
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
STEVEN WARREN,
a.k.a. Caine,
a.k.a. Steve Warren,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(November 18, 2008)
Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Steven Warren, a federal prisoner proceeding pro se, appeals the district
court’s finding that it lacked authority under 18 U.S.C. § 3582(c)(2) to reduce his
sentence below the low-end of his amended guideline range on the ground that
U.S.S.G. § 1B1.10(b)(1) restricts such a reduction.
Warren had filed a motion for a reduced sentence under 18 U.S.C. §
3582(c)(2) based on an amendment to the Sentencing Guidelines that retroactively
lowered the base offense levels applicable to crack cocaine. Without objection
from the state, the district court proposed granting the motion and lowering
Warren’s offense level by two levels. Warren filed objections to the district court’s
proposed sentence, requesting additional consideration and a further reduction of
his sentence pursuant to 18 U.S.C. § 3553(a). The district court rejected Warren’s
objections, setting his term of imprisonment at the low-end of the recalculated
range.
Warren argues that the district court erred in finding that § 1B1.10(b)(1) of
the Guidelines prohibited it from further reducing his sentence to a term less than
the minimum amended guideline range. He asserts that the district court’s reading
of § 1B1.10(b)(2)(A) violated his Sixth Amendment rights because the court failed
to consider the advisory nature of the Guidelines under United States v. Booker,
543 U.S. 220 (2005), and thus, failed to recognize its authority to impose a
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downward variance due to the unwarranted disparity created among defendants
convicted of crack-cocaine offenses and powder-cocaine offenses, under 18 U.S.C.
§ 3553(a)(6).
Upon review of the record and the parties’ briefs, we discern no reversible
error. When an appellant demonstrates that the sentencing court relied upon an
invalid factor in determining his sentence, remand is appropriate unless we
conclude, on the record as a whole, that “the error did not affect the district court’s
selection of the sentence imposed.” United States v. Kendrick, 22 F.3d 1066, 1068
(11th Cir. 1994). Given the facts of this case, even assuming arguendo that the
district court erred in its determination as to the extent of its authority to grant a
downward variance, there was no reversible error because the error did not affect
Warren’s sentence.
Despite concluding that § 1B1.10(b)(2)(A) prohibited it from reducing
Warren’s sentence below the amended guideline range, the district court addressed
each of Warren’s arguments for a further reduction in his sentence below the
amended guideline range, including the applicable § 3553(a) factors, public safety,
Warren’s prison history and family relationships, as well as his first-offender status
and acceptance of responsibility, and found that no further reduction was
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warranted.1 Therefore, even if the district court erred in finding that, regardless of
Booker, it was prohibited from reducing Warren’s sentence below the amended
guideline range, that error was harmless. Any such error cannot be said to have
affected the district court’s selection of the sentence where it considered each of
Warren’s presented arguments for a further reduction and found that no such
reduction would be warranted.
AFFIRMED.
1
For the first time on appeal, Warren also argues that the district court erred in failing to
consider, under § 3553(a)(6), the disproportionate manner in which the Guidelines apply to
crack-cocaine offenses and power-cocaine offenses, resulting in unwarranted sentencing
disparities. Because Warren did not raise this issue before the district court, the district court
cannot be said to have abused its discretion in allegedly failing to consider a factor that was not
brought to its attention. See Gall v. United States, 552 U.S. ___, 128 S.Ct. 586, 599 (2007)
(stating that it is “not incumbent on the District Judge to raise every conceivable relevant issue
on his own initiative”).
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