[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15212 MAY 11, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 99-00903-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRENCE SMITH,
a.k.a. Terry,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 11, 2009)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Terrence Smith, proceeding pro se, appeals the district court’s order denying
his 18 U.S.C. § 3582(c)(2) motion for sentence reduction. Smith’s § 3582(c)(2)
motion was based on Amendment 591 to the Sentencing Guidelines, which
requires the selection of the applicable guideline be based on the statute of
conviction, rather than judicial findings of relevant conduct not made by the jury.
Smith asserts the offense level for his arson conviction, 18 U.S.C. § 844(i), was
improperly based upon the guideline applicable to first-degree murder, in light of
Amendment 591.
“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 reduce 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,” provided that
“such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The applicable policy
statements provide that a court may reduce a defendant’s sentence, pursuant to
§ 3582(c)(2), where “the guideline range applicable to that defendant has
subsequently been lowered as a result of” a covered amendment to the Guidelines.
U.S.S.G. § 1B1.10(a)(1).
2
Amendment 591 became effective on November 1, 2000, and Smith was
sentenced on July 30, 2001. Therefore, although the Amendment was made
retroactive by incorporation into U.S.S.G. § 1B1.10(c), it does not constitute a
subsequent amendment within § 3582(c)(2) and the applicable policy statement
because it was already in effect at the time he was sentenced. See United States v.
Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir. 2003) (stating that a pro se inmate’s
motion “could fit under § 3582(c) only if he was arguing his sentence should be
modified based on a subsequent sentencing guideline amendment”). Moreover, we
previously rejected Smith’s challenge to the calculation of his offense level by
reference to the first-degree murder guideline in his direct appeal. See United
States v. Smith, No. 01-14427, manuscript op. at 18-19 (11th Cir. Jan. 31, 2003).
Accordingly, the district court did not err in denying the motion, and we affirm.
AFFIRMED.
3