[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 4, 2009
No. 08-13083 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 91-00033-CR-ORL-18-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ETHEL MAE JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 4, 2009)
Before CARNES, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
Ethel Mae Jackson, through counsel, appeals the district court’s denial of her
motion to reduce her sentence pursuant to 18 U.S.C. § 3582(c)(2). Jackson’s
§ 3582(c)(2) motion was based on Amendment 706 to the sentencing guidelines,
which reduced the base offense levels applicable to crack cocaine. Jackson
contends that the district court erred in denying her motion because: (1) the
Sentencing Commission effectively, if not expressly, reduced the base offense
level applicable to her offense; and (2) the court possessed the authority under
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), to treat the
guidelines as advisory in her case.
“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). A district court may modify a term of imprisonment
where a defendant has been sentenced based on a sentencing range that has
subsequently been lowered by the Sentencing Commission. 18 U.S.C. §
3582(c)(2). Any reduction, however, must be “consistent with applicable policy
statements issued by the Sentencing Commission.” Id. Where a defendant’s
guideline range remains unchanged by Amendment 706 because her offense
involved 4.5 kilograms or more of crack cocaine, a district court is not authorized
to reduce the defendant’s sentence under § 3582(c)(2). United States v. Jones, 548
F.3d 1366, 1369 (11th Cir. 2008), cert. denied, Jones v. United States, No. 08-8865
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(Mar. 23, 2009).
Jackson’s offense involved at least 15 kilograms of crack cocaine. As a
result, Amendment 706 did not lower her guidelines range and she was not eligible
for a sentence reduction under § 3582(c)(2). See U.S.S.G. § 2D1.1(c)(1); Jones,
548 F.3d at 1369. Moreover, the Supreme Court’s decision in Booker neither gave
the district court authority to treat the guidelines as advisory in Jackson’s
§ 3582(c)(2) proceeding, United States v. Melvin, 556 F.3d 1190, 1192–93 (11th
Cir. 2009), petition for cert. filed, No. 08-8664 (Feb. 10, 2009), nor provided an
independent jurisdictional basis for a sentence reduction under § 3582(c)(2).
United States v. Moreno, 421 F.3d 1217, 1220–21 (11th Cir. 2005). The district
court did not err in denying Jackson’s § 3582(c)(2) motion.
AFFIRMED.
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