[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-17065 ELEVENTH CIRCUIT
JULY 20, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 95-08089-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE LOUIS PARSON,
a.k.a. Louis Parson,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 20, 2009)
Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.
PER CURIAM:
Willie Parson, a federal prisoner convicted of conspiracy to possess with
intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)
and 846, appeals the district court’s denial of his pro se 18 U.S.C. § 3582(c)(2)
motion for reduction of sentence based on Amendment 706 to U.S.S.G. § 2D1.1,
which lowered the base offense levels applicable to crack cocaine offenses. On
appeal, Parson argues, through counsel, that our holding in United States v. Jones,
548 F.3d 1366, 1369 (11th Cir. 2008) (per curiam), which affirmed the denial of a
§ 3582(c)(2) motion based on a crack cocaine amount unaffected by Amendment
706, is inapplicable even though Parson was held accountable for more than 4.5
kilograms of crack cocaine. He asserts that (1) the statutory maximum sentence for
his crime of conviction is thirty years of imprisonment because the indictment only
charged him with a detectable amount of cocaine and crack cocaine, (2) the district
court was required to recalculate a new sentence, and (3) the life sentence imposed
exceeded the court’s statutory authority.
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) (per curiam). A district court may modify a term of
imprisonment in the case of a defendant who was sentenced based on a sentencing
range that subsequently has been lowered by the Sentencing Commission. See 18
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U.S.C. § 3582(c)(2). Any reduction, however, must be “consistent with applicable
policy statements issued by the Sentencing Commission.” Id. (quotation marks
and citations omitted). A reduction of a term of imprisonment is not consistent
with applicable policy statements issued by the Sentencing Commission—and is
not authorized under § 3582(c)(2)—if the retroactive amendment does not have the
effect of lowering the defendant’s applicable guideline range. Jones, 548 F.3d at
1368.
Here, the district court properly denied § 3582(c)(2) relief because Parson’s
guideline range was not lowered as a result of Amendment 706. Parson was held
accountable for more than 200 kilograms of crack cocaine, and Amendment 706
only lowered the base offense levels for quantities of crack cocaine less than 4.5
kilograms. See Jones, 548 F.3d at 1369 (holding that the defendant was not
entitled to a reduction in sentence because he had been held accountable for more
than 4.5 kilograms of crack cocaine, and Amendment 706 did not lower his
guideline range).
Parson’s argument concerning the applicable statutory maximum appears to
be based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), in
which the Supreme Court held that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
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maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id.
at 490, 120 S. Ct. at 2362-63. However, Apprendi is not a retroactively applicable
guideline amendment, and, therefore, cannot be a basis for § 3582(c)(2) relief. See
United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005) (per curiam)
(observing that Booker did not provide a basis for § 3582(c)(2) relief because it
was “a Supreme Court decision, not a retroactively applicable guideline
amendment”).
Because Parson is not eligible for § 3582(c)(2) relief and Apprendi is not
applicable, Parson’s argument that the court must recalculate his guidelines range
is also meritless. See United States v. Webb, 565 F.3d 789, 793 (11th Cir. 2009)
(per curiam) (noting that where Amendment 706 did not change the guideline
range, the district court correctly found that it need not examine the 18 U.S.C.
§ 3553(a) factors). Consequently, the district court properly denied Parson’s
§ 3582(c)(2) motion, and we affirm.
AFFIRMED.
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