[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10469 ELEVENTH CIRCUIT
MAY 26, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 01-00066-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH FRANCIS COLLINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 26, 2009)
Before BIRCH, HULL and WILSON, Circuit Judges.
PER CURIAM:
Kenneth Francis Collins, a federal prisoner who was convicted of a crack
cocaine offense, appeals pro se the denial of his motion to reduce his sentence,
filed pursuant to 18 U.S.C. § 3582(c)(2). Collins’s § 3582(c)(2) motion was based
on Amendment 706 to the U.S. Sentencing Guidelines, which reduced the base
offense level applicable to crack cocaine offenses involving fewer than 4.5
kilograms of cocaine. On appeal, Collins asserts that the district court held him
accountable for at least 1.5 kilograms of crack cocaine, but did not make a specific
finding that more than 4.5 kilograms were involved. Thus, Collins argues that the
court erred by denying him a sentence reduction pursuant to Amendment 706.
In a § 3582(c)(2) proceeding, we review de novo the district court’s legal
conclusions regarding the scope of its authority under the Guidelines. United
States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008), cert. denied, 129 S. Ct.
1601 (2009). We review the district court’s decision to deny a sentence reduction
for an abuse of discretion. United States v. Jones, 548 F.3d 1366, 1368 n.1 (11th
Cir. 2008) (per curiam), cert. denied, 129 S. Ct. 1657 (2009).
A court may not modify a term of imprisonment once 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). The applicable policy statement provides that if a defendant’s
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guideline range “has subsequently been lowered as a result of an amendment to the
Guidelines Manual listed in [§ 1B1.10(c)], the court may reduce the defendant’s
term of imprisonment as provided by 18 U.S.C. § 3582(c)(2),” and “any such
reduction in the defendant’s term of imprisonment shall be consistent with this
policy statement.” U.S. S ENTENCING G UIDELINES M ANUAL § 1B1.10(a)(1) (2008).
“Under Amendment 706, the guidelines now provide a base offense level of
36 for defendants who are responsible for at least 1.5 kilograms but less than 4.5
kilograms of crack cocaine. However, a base offense level of 38 still applies to
defendants responsible for 4.5 kilograms or more.” Jones, 548 F.3d at 1369
(citations omitted).
At sentencing, the district court acknowledged that the trial evidence
established that Collins was accountable for a quantity of drugs corresponding to
base offense level 38. Because Collins’s base offense level was calculated in the
presentence investigation report based on a total of more than 4.5 kilograms of
cocaine base, his base offense level remains unchanged by Amendment 706.
Accordingly, we conclude that the district court did not abuse its discretion by
denying Collins a sentence reduction pursuant to § 3582(c)(2).
AFFIRMED.
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