[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13982 ELEVENTH CIRCUIT
December 15, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 96-00078-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHANIE YVETTE GEORGE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 15, 2008)
Before BARKETT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Stephanie Yvette George, a federal prisoner convicted of a crack-cocaine
offense, appeals the district court’s denial of her pro se 18 U.S.C. § 3582(c)(2)
motion for a reduced sentence. On appeal, George argues that she was eligible for
a reduction under § 3582(c)(2) because her sentence was partially “based on” the
drug quantity guideline. She submits that U.S.S.G. § 1B1.10 must be disregarding
insofar as it conflicts with United States v. Booker, 543 U.S. 220, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005), and the limiting clause of § 3582(c)(2) should
be construed as advisory under Booker. She claims that the district court had
inherent equitable power to give effect to Amendment 706 and reduce her
sentence. She also asserts that Amendment 709 changed the definition of “related
cases” such that she would no longer be a career offender under the current
Guidelines.
We review “a district court’s decision whether to reduce a sentence pursuant
to [§ 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). However, in the § 3582(c)(2) context, we review “de novo the district
court’s legal conclusions regarding the scope of its authority under the Sentencing
Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002).
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A district court may not modify a term of imprisonment once it has been
imposed except where expressly permitted by statute or by Fed.R.Crim.P. 35. 18
U.S.C. § 3582(c)(1)(B). One statutory exception to this general rule includes
relief under § 3582(c)(2), which provides:
[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 [18
U.S.C. § 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). The Sentencing Commission’s recently revised policy
statement on retroactive amendments to the Guidelines provides:
In a case in which a defendant is serving a term of imprisonment, and
the guideline range applicable to that defendant has subsequently
been lowered as a result of an amendment to the Guidelines Manual
listed in subsection (c) below, the court may reduce the defendant’s
term of imprisonment as provided by [§ 3582(c)(2)]. As required by
[§ 3582(c)(2)], any such reduction in the defendant’s term of
imprisonment shall be consistent with this policy statement.
U.S.S.G. § 1B1.10(a)(1) (made effective on March 3, 2008, by Amendment 712).
The policy statement emphasizes that “[a] reduction in the defendant’s term of
imprisonment is not consistent with this policy statement and therefore is not
authorized under [§ 3582(c)(2)] if . . . [a]n amendment listed in subsection (c) does
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not have the effect of lowering the defendant’s applicable guideline range.”
U.S.S.G. § 1B1.10(a)(2)(B). In this regard, the commentary to § 1B1.10 explains
that a reduction under § 3582(c)(2) is not authorized if the “amendment . . . is
applicable to the defendant but 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).” U.S.S.G. § 1B1.10, comment. (n.1(A)).
On November 1, 2007, the Sentencing Commission promulgated
Amendment 706, which 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 Amendment 706 is to provide
a two-level reduction in base offense levels for certain crack-cocaine offenses.
See id. The 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)
(listing Amendment 706 under U.S.S.G. § 1B1.10(c) as a retroactively applicable
amendment).
A district court lacks authority to grant a sentence reduction under
§ 3582(c)(2) “[w]here a retroactively applicable guideline amendment reduces a
defendant’s base offense level, but does not alter the sentencing range upon which
his or her sentence was based.” United States v. Moore, 541 F.3d 1323, 1330
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(11th Cir. 2008). Section 3582(c)(2) does not authorize a reduced sentence where
a defendant was sentenced in accordance with a statutory mandatory minimum
sentence. United States v. Black, 523 F.3d 892, 892-93 (8th Cir. 2008)
(persuasive authority), petition for cert. filed, (U.S. July 25, 2008) (No. 08-7085).
Although the Guidelines are effectively advisory under Booker, the district
courts are still bound by statutory minimum sentences. United States v.
Ciskowski, 492 F.3d 1264, 1270 (11th Cir. 2007). While district courts may grant
variances based on the crack-to-powder disparity, they are still “constrained by the
mandatory minimums Congress prescribed.” Kimbrough v. United States, 552
U.S. ____, 128 S.Ct. 558, 574, 169 L.Ed.2d 481 (2007).
Upon review of the record and consideration of the parties’ briefs, we
discern no error. The district court did not err in finding that Amendment 706 had
no effect on George’s offense level because she was sentenced to the statutory
mandatory minimum.
AFFIRMED.
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