[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13206 ELEVENTH CIRCUIT
JUNE 9, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 95-06008-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
TORRENCE ALLEN,
a.k.a. Antonio P. Allen,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 9, 2009)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Torrence Allen, who filed a 18 U.S.C. § 3582(c)(2) motion pro se but was
represented by appointed counsel during the resentencing proceedings, appeals the
district court’s denial of his § 3582(c)(2) motion for a reduction of his sentence
based on Amendment 706 to U.S.S.G. § 2D1.1, which lowered the base offense
levels applicable to crack cocaine offenses. Allen, who was convicted of
conspiracy to possess with intent to distribute crack cocaine and was attributed 848
grams of crack cocaine, argues that he is entitled to § 3582 relief because his
offense level was based on § 2D1.1, and that he was not sentenced as, or ever
determined to be a career offender under § 4B1.1. He also asserts that the statutory
maximum sentence for his offense was actually 240 months, and consequently, the
district court at his original sentencing exceeded its authority because it sentenced
him to 480 months’ imprisonment.
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). Under § 3582(c)(2), a district court may modify a defendant’s
term of imprisonment where he “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 such reduction must also be consistent
with the Commission’s applicable policy statements, which similarly provide, inter
alia, that a sentencing reduction is not permitted where the retroactive amendment
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“does not have the effect of lowering the defendant’s applicable guideline range.”
U.S.S.G. § 1B1.10(a)(2)(B).III.
A defendant whose original sentence ultimately was based on something
other than the offense level calculation under § 2D1.1, such as the career offender
guideline section of § 4B1.1, is precluded from receiving a sentence reduction
because the amendment does not have the effect of lowering the applicable
guideline range. See United States v. Moore, 541 F.3d 1323, 1327 (11th Cir.
2008), cert. denied, McFadden v. United States, 129 S.Ct. 965 (2009), and cert.
denied, (U.S. Mar. 9, 2009) (No. 08-8554); see also U.S.S.G. § 1B1.10, comment.
(n.1(A)) (stating that a reduction under § 3582(c)(2) is not authorized where “the
amendment . . . is applicable to the defendant but the amendment does not have the
effect of lowering the defendant’s applicable guideline range because of the
operation of another guideline or statutory provision”). Where the base offense
levels under § 2D1.1 play no role in the calculation of the guideline range, the
defendant is not entitled to § 3582 relief under Amendment 706. Moore, 541 F.3d
at 1327.
In Moore, however, we did not address the applicability of Amendment 706
to a career offender who was originally sentenced based on the drug quantity
guideline. In a related context, we have suggested that Amendment 706 might
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apply to armed career criminals who were originally sentenced based on the drug
quantity guideline, because such individuals would have been “sentenced to a
‘range that has subsequently been lowered’ under 18 U.S.C. § 3582(c)(2).” James,
548 F.3d at 985 n. 2. Consequently, if the offense level was based on § 2D1.1, the
defendant’s guideline range would be lowered, and Amendment 706 would apply.
See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B).
Nevertheless, proceedings under § 3582 do not constitute a de novo
resentencing. United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000). Rather,
“all original sentencing determinations remain unchanged.” Id. A court applying
an amendment under § 3582 “must recalculate the sentence under the amended
guidelines, first determining a new base level by substituting the amended
guideline range for the originally applied guideline range, and then using that new
base level to determine what ultimate sentence it would have imposed.” Id. at 780;
see also U.S.S.G. § 1B1.10(b).
Facts contained in the PSI are “undisputed and deemed to have been
admitted, unless party objects to them before the sentencing court with specificity
and clarity.” United States v. Beckles, No. 07-15062, manu. op. at 19-20 (11th Cir.
Apr. 17, 2009). Indeed, a defendant’s failure to object to allegations of fact at
sentencing means that the defendant admitted those facts for sentencing purposes,
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and precludes any argument that there was error in them. Id. at 20.
Regarding his eligibility for a sentence reduction, although the record is not
clear whether the court specifically found that Allen was a career offender, there is
no doubt that he is a career offender. Allen failed to object to his career offender
status below and conceded that his criminal history, which reveals that he had more
than two prior felony convictions and therefore qualified him as a career offender,
was correct. Consequently, we assume that the court at the original sentencing
applied the guidelines correctly and found that he was a career offender.
Although Allen was not sentenced under the career offender provisions
because his offense level under the drug quantity guidelines, in § 2D1.1, was
higher than the offense level as a career offender, he nevertheless is not eligible for
a sentence reduction under Amendment 706. Because all original sentencing
determinations are left unchanged in a § 3582(c)(2) proceeding, the court was
required to determine Allen’s new base offense level under § 2D1.1, and compare
that number to his career offender offense level under § 4B1.1(b). In this respect,
the court did not err in determining that Amendment 706 would not have the effect
of reducing his sentencing range, as this approach is consistent with the policy
statement in § 1B1.10(b)(1).
To the extent that Allen seeks to challenge his original sentence based on his
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argument that his statutory maximum sentence was 240 months, he may not do so
in a § 3582(c)(2) proceeding. Moreover, that argument fails because the
mandatory maximum sentence was life imprisonment due to his possession of over
500 grams of crack cocaine and his prior conviction for a felony drug offense. 21
U.S.C. § 841(b)(1)(A). Accordingly, we affirm.
AFFIRMED.
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