[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 9, 2009
No. 08-12223 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-00076-CR-FTM-29DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY LAMAR GASKINS,
a.k.a. Big Mook,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 9, 2009)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Gary Lamar Gaskins, proceeding pro se, appeals the district court’s denial of
his motion for a reduced sentence, which was filed pursuant to 18 U.S.C.
§ 3582(c)(2), and based on Amendment 706 to the Sentencing Guidelines,
reducing the base offense levels applicable to crack cocaine offenses. Gaskins
currently is serving a 48-month sentence for violating the terms of his supervised
release, in relation to an underlying crack cocaine offense.
On appeal, he argues that the district court erred in denying his § 3582(c)(2)
motion because it had the authority to reduce his sentence, despite his status, at his
original sentencing, as a career offender. Gaskins also asserts that, under United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and 18
U.S.C. § 3553(a), the court had the authority to sentence him below his guideline
range. Further, he contends, the court should have reduced his sentence based on
the crack cocaine racial disparity, under Kimbrough v. United States, 552 U.S.
___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).
In a § 3582(c)(2) proceeding, “we review de novo the district court’s legal
conclusions regarding the scope of its authority under the Sentencing Guidelines.”
United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002)
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
2
Commission . . . .” 18 U.S.C. § 3582(c)(2). Any such reduction must also be
consistent with the Commission’s applicable policy statements, which provide that
a sentencing reduction is not permitted if none of the retroactive amendments apply
to the defendant or a retroactive amendment “does not have the effect of lowering
the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(A)-(B).
The commentary to § 1B1.10 states, “Only a term of imprisonment imposed
as part of the original sentence is authorized to be reduced under this section. This
section does not authorize a reduction in the term of imprisonment imposed upon
revocation of supervised release.” U.S.S.G. § 1B1.10, comment. (N.4(A)); see also
United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir. 2009), petition for cert.
filed, (U.S. Feb. 10, 2009) (No. 08-8664) (holding that “a district court is bound by
the limitations on its discretion imposed by § 3582(c)(2) and the applicable policy
statements by the Sentencing Commission”).
Furthermore, Chapter 7 of the Sentencing Guidelines sets out the guideline
ranges applicable to defendants whose terms of supervised released have been
revoked. See U.S.S.G. § 7B1.4(a). Thus, in the revocation of supervised release
context, a defendant is not sentenced under the crack cocaine guidelines in
U.S.S.G. § 2D1.1, and Amendment 706 has no effect on the guideline ranges set
out in U.S.S.G. § 7B1.4(a). See U.S.S.G. App. C, Amend. 706 (amending the
3
Drug Quantity Table in § 2D1.1(c)).
Here, the district court correctly determined that Gaskins was not eligible for
a sentence reduction based on Amendment 706, as his sentence was imposed upon
revocation of supervised release and based on a guideline range set out in § 7B1.4,
not § 2D1.1. In addition, Gaskins’s original sentencing range was based on his
status as a career offender and not on his crack cocaine offense. See United States
v. Williams, 549 F.3d 1337, 1339 (11th Cir. 2008) (“a defendant whose original
sentencing range was based on something other than § 2D1.1 is precluded from
receiving a sentence reduction, since the amendment would not lower his
applicable guidelines range.”). Thus, Gaskins’s crack cocaine base offense level
played no role in his sentence, and Amendment 706 did not affect his guideline
range.
AFFIRMED.
4