[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 30, 2008
No. 08-12278 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 94-00018-CR-001-CAR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
INES MORENO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(December 30, 2008)
Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.
PER CURIAM:
On June 2, 1994, appellant pled guilty, pursuant to a plea agreement, to
possession with intent to distribute cocaine base, and on November 1, 1994, the
district court sentenced him to prison for a term of 480 months.1 The court
subsequently reduced the sentence to 420 months on the Government’s motion to
reduce the sentence for appellant’s substantial assistance.
On March 4, 2008, appellant moved the court pursuant to 18 U.S.C.
§ 3582(c)(2) to reduce his sentence based on Amendment 706 to the Guidelines, a
retroactive amendment that lowered the base offense levels for cocaine base
offenses. Appellant asked for a reduction of his base offense level by 10 levels
(from 40 to 30), which would yield a sentence range of 130 to 162 months. The
district court denied his motion. In doing so, the court adhered to the offense level
and criminal history category computations it had made when sentencing appellant
in November 1994 and stated:
Retroactive amendment # 706 is applicable to defendant’s case. However,
given the amount of drugs used to calculate the guideline range, the
sentencing range remains the same. The sentence of 420 months
imprisonment as reflected in the order of 02/25/1999 based on a motion
pursuant to Rule 35(b) [of the Federal Rules of Criminal Procedure] remains
the same sentence of the Court. The factors set forth at 18 U.S.C. § 3553(a)
were considered in this ruling.
1
The offense involved 25 kilograms of cocaine base. Under U.S.S.G. § 2D1.1(c), the
base offense level for 25 kilograms of cocaine base was 38. The court enhanced this level by
two levels for obstruction of justice, resulting in a total offense level of 40. Coupled with a
criminal history category of VI, the Guidelines prescribed a sentence range of 360 months to life.
Section 841(b)(10(A) if Title 21 prescribed a mandatory minimum sentence of five years and a
maximum of 40 years. Given this maximum, the Guidelines sentence range became 360 months
to 480 months’ imprisonment.
2
Appellant now appeals the ruling, contending that the district court failed to
comply with the requirements of 18 U.S.C. § 3553(c) because, in denying his
motion, it did not make an adequate statement of its reasons for the imposition of
his 420 months’ sentence as required by Rita v. United States, 551 U.S. ___, 127
S.Ct. 2456, 168 L.Ed. 2d 203 (2007). That is, the court’s statement that it had
considered the § 3553(a) factors constituted an insufficient explanation of its
reason for imposing the 420 months’ sentence.
A district court may not modify a term of imprisonment once imposed
unless expressly permitted by statute or by Rule 35 of the Federal Rules of
Criminal Procedure. See 18 U.S.C. § 3582(c). Section 3582(c) provides such
permission. It states:
[I]n 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 section 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). When a retroactive amendment changes a defendant’s
base offense level but does not lower his sentence range, however, the district court
lacks jurisdiction to reduce a sentence under § 3582(c)(2). United States v. Moore,
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541 F.3d 1323, 1327-29 (11th Cir. 2008).
Amendment 706, promulgated on November 1, 2007, amended the Drug
Quantity Table in U.S.S.G. § 2D1.1(c). U.S.S.G. App. C, Amend. 706 (2007).
The effect of the amendment is to provide a two-level reduction in base offense
levels for certain crack-cocaine offenses. See id. The Sentencing Commission
made this amendment retroactively applicable, effective as of March 3, 2008. See
U.S.S.G., App. C, Amend. 713 (Supp. May 1, 2008). After the implementation of
the amendment, defendants held accountable for more than 4.5 kilograms of
cocaine base, rather than the prior amount of 1.5 kilograms, are assigned a base
offense level of 38. U.S.S.G. § 2D1.1(c)(1).
The district court did not err in concluding that it lacked jurisdiction to
reduce appellant’s sentence because, under Amendment 706, appellant’s base
offense level – due to the amount of drugs for which the court properly held him
accountable – did not change. It remained at 38.
AFFIRMED.
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