[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 20, 2009
No. 09-10943 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 06-00530-CR-7-RDP-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 20, 2009)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
David Smith, a federal prisoner serving a 156-month sentence following his
conviction on three felony counts, appeals the district court’s denial of his pro se
motion for a reduction of sentence. Smith believes that he is entitled to relief
pursuant to 18 U.S.C. § 3582(c)(2). In denying relief, the district court found that
Smith’s guideline range was calculated on the amount of powder cocaine
attributable to him and, therefore, Amendment 706 had no effect on his guideline
range. Moreover, the court noted that, because Smith was subject to a statutory
minimum term of life imprisonment, Amendment 706 did not reduce his guideline
range.
On appeal, Smith acknowledges that Amendment 706 did not lower his
guideline range but asserts that because of “bad math” in the design of the
sentencing table, he should receive a reduction. He argues that part of his offense
level calculation included an upward departure because he also possessed crack
cocaine, although the district court calculated his guideline range based only on the
powder cocaine he possessed. Smith asserts that the guidelines are advisory under
United States v. Booker, 543 U.S. 220 (2005).
Smith also contends that his presentence investigation report contained an
erroneous prior state conviction and that the district court should have ordered an
updated report to correct the record. He argues that the district court erred by
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concluding that the statutory language required that the guideline amendment
lower his guideline range in order for him to benefit. Smith claims that the district
court failed to calculate his applicable guideline range or consider the 18 U.S.C.
§ 3553(a) factors. He contends that even though he was subject to a mandatory
statutory minimum of life imprisonment, because the district court departed
downward at his original sentencing based on a substantial assistance motion,
Amendment 706 lowered his applicable guideline range.
We conduct a de novo review of issues of legal interpretation in a
§ 3582(c)(2) context. United States v. Williams, 549 F.3d 1337, 1338–39 (11th
Cir. 2008). Amendment 706 provided a two-level reduction in base offense levels
for certain cocaine base offenses. U.S.S.G. App. C., Amend. 706 (Nov. 1, 2007).
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, defendants are ineligible for relief under certain situations.
For example, when a defendant is subject to a statutory mandatory minimum
that replaces his guideline range, that defendant is not eligible for a sentence
reduction under Amendment 706. Williams, 549 F.3d at 1341–42. This ineligibility
does not change if a court makes a downward departure below the statutory
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minimum when that departure is made pursuant to a U.S.S.G. § 5K1.1 or 18 U.S.C.
§ 3553(e) substantial assistance motion. Id. at 1342.
We have also held that Booker does not apply to § 3582(c)(2) proceedings.
United States v. Melvin, 556 F.3d 1190, 1193–94 (11th Cir.), cert. denied, 129
S.Ct. 2382 (May 18, 2009).
Smith was not entitled to a reduction in his sentence based on Amendment
706 because the district court calculated his guideline range based on powder
cocaine and not crack cocaine, and he was subject to a mandatory minimum term
of life imprisonment. Furthermore, Booker did not grant the district court
jurisdiction to resentence him, and the court also lacked jurisdiction to consider
any errors in his original sentencing.
AFFIRMED.
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