[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 24, 2009
No. 08-13432 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-00356-CR-T-23-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBON JONES,
a.k.a. Dread,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 24, 2009)
Before EDMONDSON, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Albon Jones appeals the district court’s refusal to grant
more than a two-level base offense level reduction of his sentence sought by Jones
pursuant to his 18 U.S.C. § 3582(c)(2) motion. No reversible error has been
shown; we affirm.
Jones pleaded guilty pursuant to a plea agreement to a crack cocaine offense
and was sentenced originally to a term of 100 months’ imprisonment.1 That
sentence reflected a downward departure from Jones’s guideline range based on a
U.S.S.G. § 5K1.1 substantial assistance motion filed by the government. In March
2008, Jones filed a motion pursuant to section 3582(c)(2) for retroactive
application of Amendment 706 to the sentencing guidelines.2 The district court
determined that Amendment 706 was applicable to Jones, reduced Jones’s offense
level by two levels, and imposed a new revised total sentence of 84 months (again
reflecting a comparable downward departure to the guideline range to reflect
1
The government’s argument that the appeal waiver in Jones’s plea agreement bars this
appeal is without merit. Neither the language of the plea agreement nor the Rule 11 colloquy
attending the district court’s acceptance of Jones’s guilty plea contemplated a waiver of rights in
the event of a retroactive guidelines amendment; the record fails to support a knowing waiver of
the right to appeal a ruling in a section 3582(c)(2) proceeding. See United States v. Johnson, 541
F.3d 1064, 1066 (11th Cir. 2008).
2
Amendment 706 revised U.S.S.G. § 2D1.1 by reducing by two levels the offense levels
applicable to crack cocaine offenses. Subject to technical changes effected by Amendment 711,
Amendment 706 was made retroactive as of 3 March 2008 by Amendment 713.
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Jones’s substantial assistance). Jones does not dispute that his revised guideline
range after application of the two-level adjustment and credit for substantial
assistance was 84 to 105 months. Jones argued before the district court -- and
argues on appeal -- that a further reduction below the guideline range is supported
by application of the sentencing factors set out in 18 U.S.C. § 3553(a). Jones
maintains that post-Booker, United States v. Booker, 125 S.Ct. 738 (2005), the
guidelines are advisory in the context of a section 3582 resentencing: the district
court has authority to depart from the guidelines when imposing a new sentence
under section 3582.
We review de novo the district court’s legal conclusions about the scope of
its authority under section 3582, United States v. Moore, 541 F.3d 1323, 1326 (11 th
Cir. 2008), cert. denied, McFadden v. United States, 129 S.Ct. 965 (2009), and
cert. denied, 129 S.Ct. 1601 (2009), if section 3582 applies, a district court’s
decision to grant or deny a sentence reduction is reviewed for abuse of discretion.
United States v. James, 548 F.3d 983, 984 n.1 (11th Cir. 2008)
If a district court is authorized to reduce a sentence pursuant to section
3582(c)(2), it may do so “after considering the factors set forth in section 3553(a)
to the extent 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).
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A sentencing adjustment under section 3582(c)(2) allows no full de novo
resentencing. See U.S.S.G. § 1B1.10(a)(3) (“proceedings under 18 U.S.C. §
3582(c)(2) and this policy statement do not constitute a full resentencing of the
defendant”). All original sentencing determinations are to remain unchanged with
only the amended guideline range substituted for the unamended guideline range
used at sentencing. See U.S.S.G. § 1B1.10, comment. n.2; United States v.
Vautier, 144 F.3d 756, 760 n. 4 (11th Cir. 1998). The 84-month sentence imposed
represents the minimum sentence the district court had authority to impose
consistent with section 3582(c)(2) and applicable policy statements of the
Sentencing Commission.
Jones argues nonetheless that Booker trumps application of the policy
statements: once a guidelines amendment is made retroactive, the Sentencing
Commission has no power to cabin the district court’s jurisdiction and discretion
on the application of that guideline. Our decision in United States v. Melvin, 556
F.3d 1190 (11th Cir. 2009), cert. denied (U.S. May 18, 2009) (No. 08-8664),
precludes Jones’s claim of Booker error. In Melvin, we concluded that Booker and
its progeny have no application to section 3582(c)(2) resentencing proceedings.
Under Melvin, a district court is bound by the limitations on its discretion imposed
by section 3582(c)(2) and the applicable Sentencing Commission policy
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statements. Resentencing under section 3582(c)(2) allows a district court no
discretion to impose a non-guidelines sentence.
AFFIRMED.
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