[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13262 ELEVENTH CIRCUIT
December 30, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 93-00249-CR-T-26-B
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY LEE LEWIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 30, 2008)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Anthony Lee Lewis, a federal prisoner convicted of numerous crack cocaine
offenses, appeals the district court’s denial of his 18 U.S.C. § 3582 motion for
reduction of sentence based on an amendment to U.S.S.G. § 2D1.1 that lowered
the base offense levels applicable to crack cocaine offenses. Lewis argues that:
(1) an individual serving a statutory mandatory minimum sentence should not be
foreclosed from relief under the amendment in light of Supreme Court precedent,
and (2) his constitutional right to Equal Protection was violated by the refusal to
apply the amendment’s Guidelines reduction to all crack cocaine offenders,
including those sentenced pursuant to a statutory mandatory minimum. After
careful review, we affirm.
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). Where the issue involves a legal interpretation, however, review
is de novo. United States v. Pringle, 350 F.3d 1172, 1178 (11th Cir. 2003).
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
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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
retroactive 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. See U.S.S.G. App. C, Amend.
706 (2007). 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 whose original sentence ultimately was based on something
other than the offense level calculation under § 2D1.1 is precluded from receiving
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); United States v.
Moore, 541 F.3d 1323, 1327 (11th Cir. 2008). This occurs where the defendant
was sentenced to a statutory mandatory minimum sentence. See U.S.S.G. §
1B1.10, cmt. n.1(A) (noting that defendant is not eligible for reduction, even if
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amendment is listed in subsection (c), if “the amendment does not have the effect
of lowering the defendant’s applicable guideline range because of the operation of
another guideline or statutory provision (e.g., a statutory mandatory minimum term
of imprisonment).”); see United States v. Williams, 2008 WL 5000148, *2 (11th
Cir. Nov. 26, 2008).1
The record reveals that Lewis’s total offense level was 40, his criminal
history category was VI due to his career offender status, and his resulting
calculated guideline range was 360 months’ to life imprisonment. See U.S.S.G. §
4B1.1. However, a mandatory minimum term of life imprisonment applied as a
result of Lewis’s prior felony drug convictions, and the district court therefore
sentenced Lewis to life imprisonment. See 21 U.S.C. §§ 841(b)(1)(A) and 851.
Because the applicable guideline imprisonment range of 360 months’ to life
imprisonment was lower than the statutory mandatory minimum term of life
imprisonment that applied based on Lewis’s prior felony drug convictions, the
statutory mandatory minimum became the guideline sentence. See U.S.S.G. §
5G1.1(b) (“[w]here a statutorily required minimum sentence is greater than the
1
We have noted that “Congress has only authorized departures from statutory mandatory
minimums in limited circumstances.” United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th
Cir. 2007). The only two circumstances in which a court can depart downward from a statutory
minimum sentence are when the government files a motion to recognize a defendant’s substantial
assistance pursuant to 18 U.S.C. § 3553(e), or a defendant falls within the provisions of the
“safety valve” embodied in 18 U.S.C. § 3553(f)). See id. Neither circumstance arises here.
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maximum of the applicable guideline range, the statutorily authorized minimum
sentence shall be the guideline sentence.”). As a result, Lewis’s sentence
ultimately was based on something other than the offense level calculation under §
2D1.1. See Moore, 541 F.3d at 1327. Lewis is therefore precluded from receiving
a reduction in his sentence, and we affirm the district court’s denial of his § 3582
motion on this issue. See U.S.S.G. § 1B1.10(a)(2)(B).2
Moreover, to the extent that Lewis raises an Equal Protection claim
regarding the application of Amendment 706, jurisdiction to resentence a
defendant is limited to certain motions by the Bureau of Prisons, a Rule 35 motion
by the government, or a Guidelines amendment that lowers the sentencing range of
the defendant. 18 U.S.C. § 3582(c). Because an alleged Equal Protection
violation is none of those, § 3582 is not an appropriate vehicle for raising such a
challenge. See United States v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000)
(holding that the district court properly declined to consider an Eighth Amendment
argument because section 3582(c) does not grant “jurisdiction to consider
extraneous resentencing issues”).
2
Lewis cites Kimbrough v. United States, 128 S. Ct. 558 (2007), to argue that the crack
cocaine sentencing disparity was unfair to all offenders convicted of crack cocaine offenses,
including those sentenced under a mandatory sentencing scheme, but Kimbrough itself requires
district courts to follow mandatory statutory minimum sentences. See id. at 574 (district courts
remain “constrained by the mandatory minimums Congress prescribed in the 1986 Act”).
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Accordingly, we affirm the district court.
AFFIRMED.
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