[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12284 ELEVENTH CIRCUIT
MAY 28, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 00-06013-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK ROBERTS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 28, 2009)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Patrick Roberts, through counsel, appeals the district court’s order denying
his 18 U.S.C. § 3582(c)(2) motion for sentence reduction. Roberts’ § 3582(c)(2)
motion was based on Amendment 706 to the Sentencing Guidelines, which
reduced the base offense levels applicable to crack cocaine offenses.
On appeal, Roberts concedes that he is not eligible for a sentence reduction
under Amendment 706 because he was sentenced as a career offender under U.S.
Sentencing Guidelines § 4B1.1. Nevertheless, he seeks to preserve for further
review his claim that the district court erred. Roberts also argues that he was
denied the assistance of counsel in violation of Arizona v. Fulminante, 499 U.S.
279, 309, 111 S. Ct. 1246, 1265 (1991). Roberts asserts that the district court’s
failure to notify the Federal Public Defender of its appointment left Roberts in a
worse position than someone who had not had counsel appointed to him at all.
While the district court had issued an order that appointed the Office of the Federal
Public Defender to represent Roberts, that order was never served. The district
court’s orders denying Roberts’ subsequent pro se motions likewise were not
served on the Office of the Federal Public Defender.
“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) (per curiam) (citations omitted). A district court may reduce
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the sentence “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.” 18 U.S.C. § 3582(c)(2). Any sentence reduction, however, must be
“consistent with applicable policy statements issued by the Sentencing
Commission.” Id. The applicable policy statements prohibit a reduction if a
retroactive amendment applies to the defendant but “does not have the effect of
lowering the defendant’s applicable guideline range because of the operation of
another guideline or statutory provision.” U.S. S ENTENCING G UIDELINES M ANUAL
§ 1B1.10 cmt. n.1(A).
Harmless error is applied to sentencing cases and remand is unnecessary if
the party defending the sentence persuades the court of appeals that the district
court would have imposed the same sentence absent the error. Williams v. United
States, 503 U.S. 193, 203, 112 S. Ct. 1112, 1121 (1992). There is no constitutional
or statutory right to counsel for § 3582(c)(2) proceedings. United States v. Webb,
No. 08-13405, slip op. at 1977 (11th Cir. April 13, 2009) (per curiam).
Here, as Roberts concedes, the district court did not err in denying his
motion for sentence reduction because he was sentenced as a career offender, and
the crack cocaine offense level played no ultimate role in his sentence. See
United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008), cert. denied, 129 S.
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Ct. 1601 (2009), and McFadden v. United States, 129 S. Ct. 965 (2009) (“Where 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, § 3582(c)(2) does not authorize a reduction in sentence.”).
Because Roberts had no constitutional right to an attorney during a
§ 3582(c)(2) proceeding, and the district court would have imposed the same
sentence even if he had been represented by counsel, Roberts’ rights were not
violated by the failure of the court to notify his counsel of its appointment. See
Williams, 503 U.S. at 203, 112 S. Ct. at 1121; Webb, No. 08-13405, slip op. at
1977.
Upon review of the record and the parties’ briefs, we discern no error.
Accordingly, we affirm.
AFFIRMED.
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