[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11128 Aug. 25, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-00016-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PRESTON TYRONE SMITH,
a.k.a. Red,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 25, 2009)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Preston Tyrone Smith, a federal prisoner convicted of a crack cocaine offense,
proceeding pro se, appeals the district court’s denial of motion for a sentence
reduction, pursuant to 18 U.S.C. § 3582(c)(2). On appeal, he argues that: (1) the
district court plainly erred in failing to resentence him during his § 3582(c)(2)
proceedings because United States v. Booker, 543 U.S. 220 (2005), had the effect of
retroactively stripping the district court of subject matter jurisdiction over his original
sentence; and (2) the district court abused its discretion in denying him a § 3582(c)(2)
sentence reduction, pursuant to Amendment 706, which reduced the offense levels
associated with certain crack cocaine offenses. After careful review, we affirm.
We review de novo a district court’s legal conclusions regarding the scope of
its authority under 18 U.S.C. § 3582(c)(2). United States v. James, 548 F.3d 983, 984
(11th Cir. 2008). When an issue presented involves a legal interpretation, review is
de novo. United States v. Pringle, 350 F.3d 1172, 1178 (11th Cir. 2003). We review
sentencing issues not raised before a district court for plain error. United States v.
Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005). “[W]e may exercise our
discretion to correct a forfeited error where there is (1) an error, (2) that is plain, (3)
that affects substantial rights (which usually means that the error was prejudicial), and
(4) that seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Mangaroo, 504 F.3d 1350, 1353 (11th Cir. 2007).
First, we find no merit in Smith’s claim that the district court plainly erred in
failing to resentence him during his § 3582 proceedings. The district court has
2
limited jurisdiction in the context of § 3582(c)(2) proceedings. Proceedings under
§ 3582(c)(2) and § 1B1.10 “do not constitute a full resentencing of the defendant,”
U.S.S.G. § 1B1.10(a)(3), or de novo resentencings, United States v. Moreno, 421
F.3d 1217, 1220 (11th Cir. 2005). Accordingly, § 3582(c)(2) does not “grant to the
court jurisdiction to consider extraneous resentencing issues.” United States v.
Bravo, 203 F.3d 778, 782 (11th Cir. 2000). Constitutional challenges to a
defendant’s sentence are the sort of “extraneous” issues that are not cognizable under
§ 3582(c)(2). Id. (declining to consider defendant’s Eight Amendment claim because
“such a collateral attack on [a] sentence” should be brought pursuant to 28 U.S.C. §
2255, not § 3582(c)). Thus, the district court lacks authority to re-examine the other
sentencing determinations made at the original sentencing. United States v. Cothran,
106 F.3d 1560, 1562-63 (11th Cir. 1997).
In addition, we have held that “Booker is a Supreme Court decision, not a
retroactively applicable guideline amendment by the Sentencing Commission.
Therefore, Booker is inapplicable to § 3582(c)(2) motions.” Moreno, 421 F.3d at
1220 (applying plain error). Specific to Amendment 706, we have applied Moreno
to reject an argument, made by a defendant sentenced pre-Booker under mandatory
Guidelines, that he was entitled to application of Booker in his § 3582(c)(2)
3
proceedings. See United States v. Webb, 565 F.3d 789, 792-93 (11th Cir. 2009). We
reasoned that Booker did not afford the district court a basis for granting a §
3582(c)(2) sentence reduction. Id. at 793.
In light of this case law, the district court here did not commit any error, much
less plain error, by failing to consider whether Booker had the effect of stripping the
district court of subject matter jurisdiction over Smith’s original sentence, thereby
rendering his original sentence void, and requiring the district court to impose a new
sentence. Indeed, the district court could not address that argument in a § 3582(c)(2)
proceeding. And even if a § 3582(c)(2) proceeding was the proper context to raise
the issue, we have repeatedly recognized that “Booker is inapplicable to § 3582(c)(2)
motions.” Moreno, 421 F.3d at 1220.
Next, we reject Smith’s argument that the district court abused its discretion
by denying Smith a § 3582 sentence reduction. 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. 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 applicable policy statements issued by the
4
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).
Amendment 706, which has been made retroactive, amends the Drug Quantity
Table in U.S.S.G. § 2D1.1(c) “to provide a two-level reduction in base offense levels
for crack cocaine offenses.” United States v. Moore, 541 F.3d 1323, 1325 (11th Cir.
2008). However, if a defendant’s base offense level is determined under the career-
offender guideline in U.S.S.G. § 4B1.1(b), rather than the drug-quantity guideline in
§ 2D1.1(c), Amendment 706 has no effect on the applicable guideline range. 541
F.3d at 1327-28. Where Amendment 706 does not have the effect of lowering the
applicable guideline range because the defendant’s offense level was determined by
the career offender guideline, the defendant is not entitled to § 3582(c)(2) relief. Id.
at 1328.
Because Smith’s original sentence was based on his status as a career offender
under § 4B1.1 and was unaffected by § 2D1.1, Amendment 706 did not have the
effect of lowering his sentencing range, and § 3582(c)(2) does not afford him relief.
Moore, 541 F.3d at 1327-28. Smith’s argument that we are not bound by Moore
because Moore violates Booker is unavailing as we are bound to follow prior binding
5
precedent “unless and until it is overruled by this [C]ourt en banc or by the Supreme
Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008)
(quotations omitted), cert. denied, (U.S. June 22, 2009) (No. 08-8655). There is no
dispute that Moore has not been overruled by either this Court sitting en banc or the
Supreme Court, and we are therefore bound to follow it. See id.
Finally, Smith’s argument that Moreno is inapplicable here also fails, given our
holding in United States v. Melvin, 556 F.3d 1190, 1192 (11th Cir.) (holding that
Booker does not “prohibit 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”), cert. denied, 129 S.Ct. 2382 (2009). Accordingly, we
affirm.
AFFIRMED.
6