[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 11, 2009
No. 08-15822 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 91-00146-CR-ORL-19-GJK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES A. WHEELER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 11, 2009)
Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant James A. Wheeler, a federal prisoner convicted of a crack cocaine
offense, appeals, through counsel, the district court’s denial of his 18 U.S.C. §
3582(c)(2) motion for reduction of sentence based on Amendment 706 to the
United States Sentencing Guidlines § 2D1.1. On appeal, Wheeler argues that the
district court erred in its application of § 3582(c)(2) because his sentence was
greater than the statutory maximum. Wheeler asserts that the jury never made a
factual finding regarding drug quantity, and therefore his statutory maximum was
240 months’ imprisonment, much less than the 370-month sentence imposed by
the district court. Further, he asserts that the drug quantity testimony presented at
sentencing was ambiguous, and the rule of lenity requires that this ambiguity be
resolved in Wheeler’s favor.
Wheeler acknowledges that Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000), is not applied retroactively, but asserts that the
§ 3582 proceeding rendered his sentence no longer final. Acknowledging our
precedent that prohibits a district court in a § 3582 proceeding from revisiting prior
sentencing calculations, Wheeler argues that if his sentence was 240 months, i.e.,
the statutory maximum in light of Apprendi, he would have been eligible for a
sentence reduction under Amendment 706. Wheeler asserts that unequal
application of § 3582 based on whether a defendant was sentenced before or after
Apprendi and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d
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621 (2005), violates due process and equal protection, because the Sentencing
Commission intended Amendment 706 to be retroactively beneficial to all
offenders. Again acknowledging our contrary precedent, Wheeler argues that
advisory guideline ranges are inherently lower than mandatory guideline ranges.
Finally, he argues that his sentence was greater than necessary for the purposes of
sentencing, and he has rehabilitated himself while in prison.
“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. Jones, 548 F.3d 1366,
1368 (11th Cir. 2008), cert. denied, 129 S. Ct. 1657 (2009). 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 has subsequently been
lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). However, when
the district court is determining whether to modify a defendant’s sentence pursuant
to § 3582(c)(2), “all original sentencing determinations remain unchanged with the
sole exception of the guideline range that has been amended since the original
sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (emphasis
in the original).
Amendment 706 to the Sentencing Guidelines reduced base offense levels
for crack cocaine offenses. Jones, 548 F.3d at 1368. “Under Amendment 706, the
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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.” Id. at 1369 (citations omitted). Thus, if a defendant is
responsible for at least 4.5 kilograms of crack cocaine, Amendment 706 does not
reduce his applicable guideline range, and he is ineligible for a sentence reduction
under § 3582(c)(2). Id. The Supreme Court’s Booker decision does not provide an
independent basis for § 3582 relief, and the transition from mandatory to advisory
guidelines does not grant a district court jurisdiction to reduce a defendant’s
sentence. Id.
In our view, Wheeler’s guideline range did not change because he was held
accountable for more than 4.5 kilograms of crack. Therefore, we conclude that the
district court correctly determined that it lacked jurisdiction to reduce Wheeler’s
sentence. Section 3582(c) does not provide that a previously imposed sentence is
not final, particularly when the district court lacks jurisdiction to reduce the
sentence pursuant to § 3582. We also conclude that Wheeler’s claims that (1) the
drug quantity testimony at sentencing was ambiguous; (2) he was sentenced over
the statutory maximum because the jury made no finding regarding drug quantity;
and (3) his sentence was greater than necessary are barred because the district court
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is not permitted to revisit determinations from the original sentence imposed.
Bravo, 203 F.3d at 781. Because Apprendi is not applied retroactively and Booker
does not apply in the § 3582 context, there is no equal protection or due process
violation by not applying those cases to Wheeler. See Varela v. United States, 400
F.3d 864, 867–68 (11th Cir. 2005) (holding in the § 2255 context that Apprendi
and Booker do not apply retroactively). Moreover, the transition from mandatory
to advisory guidelines did not grant the district court jurisdiction to reduce
Wheeler’s sentence. Jones, 548 F.3d at 1369. Finally, Wheeler’s argument that
his post-sentencing rehabilitation entitles him to a reduced sentence incorrectly
assumes that the district court had jurisdiction to reduce his sentence.
For the above-stated reasons, we affirm the district court’s order denying
Wheeler’s motion for reduction of sentence.
AFFIRMED.
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