[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12104 ELEVENTH CIRCUIT
JULY 7, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 94-03122-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY CURTIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 7, 2009)
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Anthony Curtis, a federal prisoner convicted of crack cocaine offenses,
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. Curtis argues
that the district court should have applied Kimbrough v. United States, 552 U.S.
85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and United States v. Booker, 543 U.S.
220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to reduce his guideline range in
recognition of the disparate treatment between cocaine and crack cocaine. He also
argues that the district court erred in holding him accountable for six kilograms of
crack cocaine because it should have considered only the drugs that were
distributed after he joined the conspiracy.
“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. A reduction of a term of imprisonment is not “consistent with
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applicable policy statements issued by the Sentencing Commission”—and is,
therefore, not authorized under § 3582(c)(2)—if the retroactive amendment does
not have the effect of lowering the defendant’s applicable guideline range.
U.S.S.G. § 1B1.10(a)(2)(B).
Here, the district court properly denied § 3582 relief because Curtis’s
guideline range was not lowered as a result of Amendment 706 because he was
held accountable for more than 4.5 kilograms of crack cocaine, and
Amendment 706 only lowered base offense levels for quantities of crack cocaine
less than 4.5 kilograms. See James, 548 F.3d at 986 (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). Furthermore, Curtis’s argument that the court improperly
attributed more than 4.5 kilograms of crack cocaine to him is meritless because the
district court must keep all the original factual findings the same during § 3582
proceedings, and he was held accountable for 6 kilograms at sentencing. See
United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (holding that
proceedings under § 3582 do not constitute a de novo resentencing, and “all
original sentencing determinations remain unchanged”). Additionally, Curtis’s
arguments under Booker and Kimbrough fail because those cases are not
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retroactively applicable guideline amendments and cannot be a jurisdictional basis
for § 3582 relief. See United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir.
2009), cert. denied, (U.S. May 18, 2009) (No. 08-8664) (holding that neither
Booker nor Kimbrough render a guideline range advisory in the context of a
§ 3582 proceeding, whether or not the guideline range is reduced by a sentencing
amendment); United States v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir. 2005)
(holding that Booker did not provide a jurisdictional basis for § 3582 relief because
it was not a sentencing amendment). Therefore, the district court properly denied
the § 3582 motion, and we affirm.
AFFIRMED.
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