[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13040 ELEVENTH CIRCUIT
DECEMBER 18, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-00302-CR-T-26-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RYAN FERRO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 18, 2008)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Ryan Ferro, a federal prisoner convicted of a crack cocaine offense, appeals
the district court’s ruling on his pro se motion for a reduced sentence under 18
U.S.C. § 3582(c)(2). After review, we affirm.
Ferro filed his § 3582(c)(2) motion based on Amendment 706 to the
Sentencing Guidelines, which lowered the base offense levels applicable to crack
cocaine offenses. See U.S.S.G. App. C, amends. 706, 713. The district court
granted Ferro’s motion in part and reduced Ferro’s 151-month sentence1 to 121
months’ imprisonment, the low end of Ferro’s new guidelines range of 121 to 151
months.
The district court denied Ferro’s request to impose a sentence below the new
guidelines range, concluding that, pursuant to U.S.S.G. § 1B1.10(b)(2)(A), district
courts are not authorized under § 3582(c)(2) to reduce a defendant’s sentence
below the low end of the amended guidelines range.2 Citing United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), Ferro argues that the district court
erred when it concluded that it lacked authority to reduce Ferro’s sentence below
1
At his original sentencing, Ferro’s guidelines range, after a U.S.S.G. § 5K1.1 substantial
assistance reduction, was 168 to 210 months’ imprisonment, and the district court imposed a
168-month sentence. Ferro later received a Rule 35(b) substantial assistance reduction, giving
him a guidelines range of 151 to 188 months’ imprisonment, and the district court imposed a
151-month sentence.
2
Section 3582(c)(2) requires a sentence reduction to be consistent with the Sentencing
Guidelines’ policy statements, which includes U.S.S.G. § 1B1.10. See 18 U.S.C. § 3582(c)(2).
Section 1B1.10(b)(2) and its commentary preclude a district court from reducing a defendant’s
sentence below the amended guidelines range if the defendant’s original sentence fell within the
then-applicable guidelines range. See U.S.S.G. § 1B1.10(b)(2)(A)-(B) & cmt. n.3.
2
the low end of his amended guidelines range.3
We need not resolve whether Booker applies to § 3582(c)(2) resentencings,
however, because any alleged error was harmless. The district court expressly
found that “even if Booker were applied, the Court would in all likelihood impose
the same sentence” and that Ferro’s 121-month sentence was “sufficient but not
greater than necessary to comply with all of the factors considered under 18 U.S.C.
§ 3553(a).” (Quotation marks omitted). In light of these findings, we fairly can
conclude that the district court would have imposed the same 121-month sentence
even if it had believed it had the authority to impose a sentence below the amended
guidelines range. As a result, any error the district court may have made had only
a very slight, if any, effect on Ferro’s sentence and was harmless. See United
States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005) (explaining that a
statutory Booker error is harmless when it did not affect, or had only a very slight
effect on, the sentence when viewing the proceedings as a whole).
AFFIRMED.
3
We review de novo the district court’s legal conclusions regarding the scope of its
authority to reduce a sentence under § 3582(c)(2). United States v. White, 305 F.3d 1264, 1267
(11th Cir. 2002).
3