[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 8, 2009
No. 08-15752 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 90-00021-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILFRED RIVERA,
Defendant-Appellant.
________________________
No. 08-15753
Non-Argument Calendar
________________________
D. C. Docket No. 01-00033-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILFRED RIVERA,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(June 8, 2009)
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
In these consolidated appeals, Wilfred Rivera, proceeding pro se, challenges
the district court’s denial of his motions for a reduced sentence, which were filed
pursuant to 18 U.S.C. § 3582(c)(2), and the denial of his motions for
reconsideration. Rivera’s § 3582(c)(2) motions were based on Amendment 706 to
the Sentencing Guidelines, which reduced the base offense levels applicable to
cocaine base (“crack”) offenses. In 1990, Rivera pled guilty to distribution of 50
grams or more of crack, in violation of 21 U.S.C. § 841(a)(1). He currently is
serving a sentence of 24 months for violating the terms of his supervised release in
that case. Rivera also is currently serving a consecutive prison sentence of 108
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months for conspiracy to possess with intent to distribute five kilograms or more
of cocaine, in violation of 21 U.S.C. § 846. While he filed identical § 3582
motions and motions for reconsideration in both cocaine cases, Rivera has
abandoned his claim that the district court erred in denying his motions in the
powder cocaine case, because he failed to argue the denial of those motions in his
appellate brief. See Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994).
Appealing the district court’s rulings in the crack cocaine case, Rivera
argues that the district court can grant a § 3582 sentence reduction when a
defendant is sentenced to a term of imprisonment upon the revocation of his
supervised release. Rivera contends that the district court should have followed
the teaching of Kimbrough v. United States, 552 U.S. __, 128 S.Ct. 558, 169
L.Ed.2d 481 (2007), and Gall v. United States, 552 U.S. ___, 128 S.Ct. 586, 169
L.Ed.2d 445 (2007), in exercising its discretion in sentencing him under the
sentencing factors of 18 U.S.C. § 3553(a).
“We review de novo a district court’s conclusions about the scope of its
legal authority under . . . § 3582(c)(2).” United States v. James, 548 F.3d 983, 984
(11th Cir. 2008). A district court may modify a term of imprisonment in the case
of a defendant sentenced to a term of imprisonment based on a sentence range that
subsequently been lowered by the Sentencing Commission. 18 U.S.C. §
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3582(c)(2). Any such reduction must also be consistent with the Commission’s
applicable policy statements, which provide that a sentence reduction must relate
to the defendant’s “term of imprisonment” and is not permitted if none of the
retroactive amendments apply to the defendant’s case. U.S.S.G. §§ 1B1.10(a)(1),
(a)(2)(A).
The commentary to U.S.S.G. § 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)). The commentary to the Guidelines thus explicitly provides that a
defendant serving a term imposed upon revocation of supervised release is not
eligible for § 3582(c)(2) relief. Id.; see also United States v. Melvin, 556 F.3d
1190 (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 sentence
ranges applicable to defendants whose terms of supervised released have been
revoked. See U.S.S.G. § 7B1.4(a). Thus, the court, following the revocation of
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supervised release, does not sentence the defendant under the crack cocaine
provisions of U.S.S.G. § 2D1.1, and Amendment 706 has no effect on the sentence
ranges set out in § 7B1.4(a). See U.S.S.G. App. C, Amend. 706 (amending the
Drug Quantity Table in § 2D1.1(c)). “Where a retroactively applicable guideline
amendment . . . does not alter the sentencing range upon which [a defendant’s]
sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.”
United States v. Moore, 541 F.3d 1323, 1330 (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).
Here, the district court correctly determined that Rivera was not eligible for
a sentence reduction based on Amendment 706 as the sentence imposed following
the revocation of supervised release was based on a sentence range set out in
§ 7B1.4, not § 2D1.1.1
AFFIRMED.
1
Rivera’s citation of Kimbrough and Booker are inapposite. See Melvin, 556 F.3d at
1192-93.
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