[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 17, 2008
No. 08-12893 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 93-00148-CR-ORL-18-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEWIS JESSE LEE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 17, 2008)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Lewis Jesse Lee appeals the district court’s judgment denying his motion for
a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court
concluded that Lee was not eligible for a reduction under § 3582(c)(2) because
Amendment 706 to the United States Sentencing Guidelines did not lower his base
offense level. For the reasons that follow, we AFFIRM.
I. BACKGROUND
In February 1994, Lee was convicted in a jury trial of conspiracy to possess
with intent to distribute fifty grams or more of cocaine base, in violation of 21
U.S.C. §§ 841(b)(1)(A)(iii) and 846. See R1-495. The United States District
Court for the Middle District of Florida determined that his base offense level
would be 42 under U.S.S.G. § 2D1.1(c)(9) (Nov. 1993) because the jury found that
the offense involved more than fifteen kilograms of cocaine base. See id. On the
basis of this offense level, the district court sentenced him to 360 months of
imprisonment. See id. In March 2005, Lee was resentenced to 262 months of
imprisonment because Amendment 505 to the sentencing guidelines reduced the
base offense level for offenses which involved more than 1.5 kilograms of cocaine
from 42 to 38. See U.S.S.G. App. C, Amend. 505 (Nov. 2004).
In November 2007, the Sentencing Commission issued Amendment 706,
which amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c) to provide a two-
level reduction in the base offense levels for particular crack cocaine offenses. See
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U.S.S.G. App. C, Amend. 706 (Nov. 2007). The Commission made this
amendment retroactively applicable effective 3 March 2008. See U.S.S.G. App. C,
Amend. 713 (Supp. May 1, 2008) (listing Amendment 706 under U.S.S.G.
§ 1B1.10(c) as a retroactively applicable amendment). As a result of these
amendments, defendants who were responsible for between 1.5 and less than 4.5
kilograms of crack would have their base offense levels reduced from 38 to 36.
See U.S.S.G. § 2D1.1(c)(1). Those who were responsible for 4.5 or more
kilograms, though, would still have a base offense level of 38. See id.
In March 2008, in response to the district court’s sua sponte inquiry
regarding the effect of Amendments 706 and 713, Lee filed a motion seeking a
sentence reduction. The district court denied his motion on 5 May 2008, finding
that those amendments did not have the effect of lowering his base offense level.
See R1-856. Any sentence reduction thus would be both unauthorized by the
guidelines and inconsistent with the policy behind them. Lee has appealed this
decision.
II. DISCUSSION
For proceedings involving sentence modifications under 18 U.S.C.
§ 3582(c)(2), “we review de novo the district court’s legal conclusions regarding
the scope of its authority under the Sentencing Guidelines.” United States v.
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White, 305 F.3d 1264, 1267 (11th Cir. 2002) (per curiam). The decision whether
to reduce a sentence pursuant to that statute is reviewed for abuse of discretion.
See United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003). Additionally,
we review issues raised for the first time on appeal for plain error. See United
States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005) (per curiam). Plain error
exists if there was “(1) error, (2) that is plain, and (3) that affects substantial rights.
If all three conditions are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (citation and quotation
marks omitted).
A defendant can only have his sentence modified based on a retroactive
amendment to the sentencing guidelines if he was “sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by
the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see also U.S.S.G.
§ 1B1.10(2)(B) (forbidding sentence reduction if an amendment does not have the
effect of lowering the defendant’s applicable guideline range). Lee acknowledges
that Amendment 706 did not lower his base offense level, but contends that the
Commission effectively did so by reducing all base offense levels for crack cocaine
offenders. Since some individuals originally classified as offense level 38, i.e.
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those responsible for 1.5 to less than 4.5 kilograms of crack cocaine, had their
offense levels reduced, the Commission, in effect, allegedly lowered the sentencing
range for level 38 offenders in general. Additionally, he notes that, under United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the sentencing guidelines
are merely advisory, thereby permitting a court to exercise its discretion in
imposing a sentence. He therefore asserts that Booker, in essence, lowered all
sentencing ranges by deeming them advisory rather than mandatory.1
According to Lee, since the court was free to reject any sentencing
guidelines or policy statements after Booker, it should not have applied U.S.S.G.
§ 1B1.10 to bar his sentence because that policy statement was inconsistent with 28
U.S.C. §§ 991(b)(1)(B) and 994(a)(2)(c). He reads those statutes to forbid the
Sentencing Commission from issuing policy statements that are inconsistent with
the general purposes behind 18 U.S.C. § 3553(a)(2), including avoidance of
sentencing disparities between similarly-situated defendants. Although the
Commission enacted Amendment 706 to reduce the disparity between sentences
for offenses involving crack cocaine and powder cocaine, it did not have this effect
on those held responsible for more than 4.5 kilograms of crack cocaine.
Additionally, the Commission failed to explain why this group was not entitled to a
1
He did not make this Booker-based argument before the district court, thus we evaluate
it for plain error. See Moreno, 421 F.3d at 1220.
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reduction. The amendment, he concludes, was therefore inconsistent with the
aforementioned statutes, and courts addressing sentence reduction motions for
those crack cocaine offenders to whom the amendment did not facially apply
should consider the amendment’s general goals rather than its actual application.
In other words, the district court could have deemed inapplicable U.S.S.G.
§ 1B1.10(a)(2), which provides that a sentencing reduction can be made under
§ 3582 only if the amendment would lower the defendant’s guideline range. The
court thus had the authority to reduce his sentence based on Amendments 706 and
713 and § 3582(c)(2) and its refusal to do so was inconsistent with the policy
behind Amendment 706.
We find all of these arguments unpersuasive. We have previously rejected
these Booker-related arguments in United States v. Jones, — F.3d —, No. 08-
13298, 2008 WL 4934033 (11th Cir. Nov. 19, 2008). In that case, we rejected a
sentence reduction based on Amendment 706 and Booker for a defendant who, like
Jones, was responsible for more than 4.5 kilograms of crack cocaine. See id. at —,
*2. We noted that the non-mandatory nature of sentences post-Booker does not
make such defendants eligible for a § 3582(c)(2) reduction since that statute only
applies when a particular defendant had his sentencing range lowered, rather than
when other defendants with the same original offense level had their ranges
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lowered. See id. at —, *1; United States v. Bravo, 203 F.3d 778, 780 (11th Cir.
2000) (noting that a sentence reduction would be permissible only when “that
defendant” had a sentence based on a subsequently-lowered sentencing range).
Since neither Lee’s offense level nor his sentencing range actually was lowered by
Amendments 706 and 713, he would not be eligible for a reduction based on their
enactment. Further, a defendant can receive a § 3582(c)(2) sentence reduction only
if the Sentencing Commission, rather than a court, lowered his sentencing range.
See Jones, at —, 2008 WL 4934033 at *2. Booker therefore is “inapplicable to
§ 3582(c)(2) motions” because it was a Supreme Court decision rather than an
action by the Sentencing Commission. Moreno, 421 F.3d at 1220. Accordingly,
the district court did not plainly err by refusing to find that Booker provides a basis
for jurisdiction under § 3582(c). See id. at 1220–21.
Lee’s argument regarding the actual effect of Amendment 706 is unavailing
for much the same reason. The district court only has jurisdiction to reduce a
defendant’s sentence if an amendment actually lowers his sentencing range,
regardless of whether the policy behind the amendment arguably impacted the
defendant. See 18 U.S.C. § 3582(c)(2). Additionally, even if the court had
jurisdiction, we generally do not second-guess the Commission’s rationale for a
guidelines amendment. See United States v. Wimbush, 103 F.3d 968, 970 (11th
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Cir. 1997) (per curiam) (holding that federal courts lack the authority to review the
Sentencing Commission’s actions for compliance with the Administrative
Procedures Act insofar as the adequacy of the statement of the basis and purpose of
a guideline amendment is concerned). Accordingly, the district court correctly
found that Lee was not entitled to a sentence reduction based on Amendment 706.
III. CONCLUSION
The district court properly denied Lee’s motion for a sentence reduction
based on Amendment 706. The court lacked jurisdiction to reduce his sentence
because his guideline range was not changed by Amendment 706, a situation
unaffected by the purported policy for the amendment. Additionally, the court did
not plainly err regarding whether Booker provided a basis for a § 3582(c)(2)
reduction. Accordingly, we AFFIRM the district court’s denial of Lee’s motion.
AFFIRMED.
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