[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10955 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 17, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 97-00028-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH DION MCCHRISTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 17, 2009)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Kenneth Dion McChriston appeals from the district court’s denial of his
motion for a reduced sentence, filed pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 706 to the Sentencing Guidelines. McChriston argues that he was
eligible for a sentence reduction because his sentence was not based upon the
statutorily enhanced minimum sentence in 21 U.S.C. § 841(b)(1)(A)(iii), and that
the district court should have applied Apprendi v. New Jersey, 530 U.S. 466
(2000), in his § 3582(c)(2) proceeding to redetermine the amount of drugs for
which he was responsible. After thorough review, we affirm.
“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 in the case of a
defendant who was sentenced to a term of imprisonment based on a sentencing
range that subsequently has 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. The applicable
policy statements, found in U.S.S.G. § 1B1.10, provide that a sentence reduction is
not authorized under § 3582(c)(2) if “[a]n amendment listed in subsection (c) does
not have the effect of lowering the defendant’s applicable guideline range.”
U.S.S.G. § 1B1.10(a)(2)(B). Where the statutory minimum sentence exceeds the
top end of the applicable guideline range, the statutory minimum becomes the
guideline. U.S.S.G. § 5G1.1(b). The Sentencing Commission’s application notes
indicate that the operation of “a statutory mandatory minimum term of
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imprisonment” would prevent an amendment from “hav[ing] the effect of lowering
the defendant’s applicable guideline range.” See U.S.S.G. § 1B1.10 cmt. n.1(A).
McChriston’s arguments are foreclosed by precedent and the record.
McChriston’s sentence was based upon an application of the statutory minimum
sentence in 21 U.S.C. § 841(b)(1)(A)(iii), and, thus, he was ineligible for a
sentence reduction because his applicable guideline range would not be reduced by
the application of Amendment 706. See United States v. Williams, 549 F.3d 1337,
1341-42 (11th Cir. 2008) (holding that a defendant sentenced to statutory
minimum was not eligible for a sentence reduction, even where the court at the
original sentencing had granted the government’s motion under U.S.S.G. § 5K1.1
to sentence below the mandatory minimum). In addition, the district court did not
have authority to apply Apprendi to redetermine the drug amount because a
§ 3582(c)(2) proceeding is not a full resentencing. See United States v. Moreno,
421 F.3d 1217, 1220 (11th Cir. 2005); U.S.S.G. § 1B1.10(a)(3) (noting that
proceedings “do not constitute a full resentencing of the defendant”).1
AFFIRMED.
1
Moreover, to the extent McChriston suggests otherwise, we have held that neither
United States v. Booker, 543 U.S. 220 (2005), nor Kimbrough v. United States, 128 S. Ct. 558
(2007), “prohibit[s] the limitations on a judge’s discretion in reducing a sentence imposed by
§ 3582(c)(2) and the applicable policy statement by the Sentencing Commission.” United States
v. Melvin, 556 F.3d 1190, 1192 (11th Cir.), cert. denied, (U.S. May 18, 2009) (No. 08-8664).
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