[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12273 ELEVENTH CIRCUIT
November 5, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-80131-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARL VEREEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 5, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Carl Vereen, a federal prisoner convicted of a crack cocaine offense, appeals
pro se the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction
of sentence. Vereen argues that Amendment 706 to § 2D1.1 of the U.S.
Sentencing Guidelines entitles him to a sentence reduction. He further argues that
because the sentencing guidelines are advisory under United States v. Booker, 543
U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the district court should have
exercised its discretion and reduced his sentence. Finally, Vereen argues that
recent Supreme Court case law establishes that district courts are not bound by
either the guidelines or minimum statutory sentences. After carefully reviewing
the record and the parties’ briefs, we discern no reversible error.
“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) (citation omitted). A district court may reduce a sentence “based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. [§] 994(o) . . . if such a reduction is consistent
with applicable policy statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c)(2). “A reduction in the defendant’s term of imprisonment is not
consistent with this policy statement and therefore is not authorized under 18
U.S.C. [§] 3582(c)(2) if . . . [the] amendment . . . does not have the effect of
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lowering the defendant’s applicable guideline range.” U.S. S ENTENCING
G UIDELINES M ANUAL § 1B1.10(a)(2)(B) (2007). A sentence “may be imposed at
any point within the applicable guideline range, provided that the sentence . . . is
not less than any statutorily required minimum sentence.” § 5G1.1(c)(2).
Furthermore, the district court may not reduce, pursuant to 18 U.S.C. § 3582(c)(2),
a defendant’s sentence “to a term that is less than the minimum of the amended
guideline range . . . .” U.S. S ENTENCING G UIDELINES M ANUAL § 1B1.10(b)(2)(A).
Amendment 706, which reduced by two levels the offense levels in crack
cocaine cases, calculated pursuant to § 2D1.1(c), became effective on November 1,
2007. See U.S. S ENTENCING G UIDELINES M ANUAL app. C, amend. 706. The
Amendment was made retroactive as of March 3, 2007 by incorporation into §
1B1.10(c). See U.S. S ENTENCING G UIDELINES M ANUAL app. C, amend. 713 (Supp.
May 1, 2008). Although the retroactive effect of Amendment 706 allows a
defendant whose guideline range was determined under § 2D1.1’s offense level
calculations to seek a reduction in his sentence, a defendant whose original
sentence ultimately was based on something other than the offense level
calculation under § 2D1.1 is precluded from receiving a sentence reduction. See §
1B1.10(a)(2)(B). Amendment 706 does not have the effect of lowering the
applicable guideline range when the defendant received a mandatory minimum
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sentence. See § 1B1.10 cmt. n.1 (noting that a defendant is eligible for a reduction
pursuant to an amendment listed in subsection (c) only if the amendment “ha[s] the
effect of lowering the defendant’s applicable guideline range”).
Although the guidelines are “effectively advisory,” Booker, 543 U.S. at 245,
125 S. Ct. at 738, the district courts are still bound by statutory minimum
sentences. United States v. Ciskowski, 492 F.3d 1264, 1270 (11th Cir. 2007)
(citations omitted). While district courts may grant variances based on the crack-
to-powder disparity, they are still “constrained by the mandatory minimums
Congress prescribed . . . .” Kimbrough v. United States, 552 U.S. ___, 128 S. Ct.
558, 574, 169 L. Ed. 2d 481 (2007).
Vereen cannot receive a sentence reduction under 18 U.S.C. § 3582(c)(2)
because his sentence was ultimately based on the ten-year statutory minimum
sentence for a repeat drug felony offender. 21 U.S.C. § 841(b)(1)(B). That ten-
year statutory minimum sentence was unaffected by Amendment 706. See United
States v. Eggersdorf, 126 F.3d 1318, 1320 (11th Cir. 1997) (“Regardless of the
guideline amendment, the language of the statutory minimum is clear and has been
unaltered by Congress.”). Reducing Vereen’s sentence would have been neither
consistent with the guidelines’ policy statement nor authorized under 18 U.S.C. §
3582(c)(2). Accordingly, we affirm the district court’s denial of Vereen’s motion
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for a reduced sentence.
AFFIRMED.
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