[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 28, 2009
No. 08-16052 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 93-00571-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROOSEVELT BRAGG,
a.k.a. Lil Bo,
a.k.a. Fred Horn,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 28, 2009)
Before TJOFLAT, DUBUINA and BLACK, Circuit Judges.
PER CURIAM:
Roosevelt Bragg, a federal prisoner convicted of conspiracy to possess with
intent to distribute cocaine, in violation of 21 U.S.C. § 846, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence based
on Amendment 706 to U.S.S.G. § 2D1.1, which lowered the base offense levels
applicable to crack cocaine quantities.
On appeal, Bragg acknowledges we have held that a defendant who is
responsible for more than 4.5 kilograms of crack cocaine is ineligible for a
sentence reduction under Amendment 706. However, Bragg asserts because he
was charged with possessing only “a detectable amount” of cocaine, the applicable
statutory maximum penalty was 20 years’ imprisonment. He argues the district
court, in recalculating his sentence under Amendment 706, should have realized
his original sentence exceeded the statutory maximum and reduced his sentence
accordingly.
“We review de novo a district court’s conclusions about the scope of its legal
authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983,
984 (11th Cir. 2008). A district court may modify a term of imprisonment in the
case of a defendant who was sentenced to a term of imprisonment based on a
sentencing range that subsequently has been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). Any reduction, however, must be
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“consistent with applicable policy statements issued by the Sentencing
Commission.” Id. A reduction of a term of imprisonment is not “consistent with
applicable policy statements issued by the Sentencing Commission” – and is,
therefore, not authorized under § 3582(c)(2) – if the retroactive amendment does
not have the effect of lowering the defendant’s applicable guideline range.
U.S.S.G. § 1B1.10(a)(2)(B).
The district court properly denied § 3582 relief because Bragg’s guideline
range was not lowered as a result of Amendment 706, given that he was held
accountable for more than 4.5 kilograms of crack cocaine, and Amendment 706
only lowered base offense levels for quantities of crack cocaine less than 4.5
kilograms. See James, 548 F.3d at 986 (holding that the defendant was not entitled
to a reduction in sentence because he had been held accountable for more than 4.5
kilograms of crack cocaine, and Amendment 706 did not lower his guideline
range). Furthermore, Bragg’s argument his sentence exceeded the statutory
maximum penalty is not properly before this Court, because a § 3582 proceeding
“does not constitute a de novo resentencing” and “does not grant to the court
jurisdiction to consider extraneous resentencing issues.” United States v. Bravo,
203 F.3d 778, 781-82 (11th Cir. 2000). Accordingly, the district court properly
denied the § 3582 motion, and we affirm.
AFFIRMED.
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