[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 17, 2008
No. 08-11377 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00125-CR-J-32-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARVIN ROWNELL JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 17, 2008)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Arvin Rownell Johnson, proceeding pro se, appeals the district court’s denial
of his motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). On
appeal, Johnson argues that the district court was permitted to lower his sentence
under 18 U.S.C. § 3582(c)(2) because the mandatory statutory minimum term of
imprisonment is no longer a bar now that he is eligible for a reduced sentence
based on Amendment 706, which reduced the offense levels in crack cocaine cases.
After careful review, we affirm.
“In a § 3582(c)(2) proceeding, we review de novo the district court’s legal
conclusions regarding the scope of its authority under the Sentencing Guidelines.”
United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008) (quotations
omitted). Section 3582(c)(2) prohibits a court from modifying a term of
imprisonment after it has been imposed except “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).” 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1) (Supp. May 1,
2008). Amendment 706, which reduced the offense levels in crack cocaine cases
calculated pursuant to § 2D1.1(c) by two levels, became effective November 1,
2007. See U.S.S.G. App. C, Amend. 706 (2007). The Amendment was made
retroactive as of March 3, 2007, by incorporation into U.S.S.G. § 1B1.10(c). See
U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008).
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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) (Supp. May 1,
2008). This occurs where, as here, the defendant was sentenced to a statutory
mandatory minimum sentence. See U.S.S.G. § 1B1.10, comment. (n.1(A)) (Supp.
May 1, 2008) (noting that defendant is not eligible for reduction, even if
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).”) (emphasis added); see also United States v. Eggersdorf, 126
F.3d 1318, 1320 (11th Cir. 1997) (“The statute controls in the event of a conflict
between the guideline and the statute.”).
In this case, the district court did not err by finding that it lacked authority to
reduce Johnson’s sentence under § 3582(c)(2) and Amendment 706. The court at
the original sentencing varied downward to the mandatory statutory minimum of
120 months’ imprisonment, the shortest term permitted by the penalty statute.
Thus, a further reduction is not permitted.
AFFIRMED.
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