[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 18, 2009
No. 09-10029 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 91-00161-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY JONES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 18, 2009)
Before DUBINA, Chief Judge, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Larry Jones, a federal prisoner convicted of being a felon in
possession of a firearm, proceeding pro se, appeals the district court’s denial of his
motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). On appeal, he
argues that the district court abused its discretion in denying him a § 3582(c)(2)
sentence reduction pursuant to Amendment 651 to the United States Sentencing
Commission Guidelines Manual (“U.S.S.G.” or “Guidelines”), which clarified the
standard for imposing an upward departure based on the inadequacy of a
defendant’s criminal history category. Jones also argues the district court abused
its discretion by denying his motion for a sentence reduction because his original
sentence was arbitrary, the district court relied on prior convictions that may not
have complied with Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d
274 (1969), and Jones’s sentence exceeded the guideline imprisonment range.
Jones further argues that (1) his sentence amounts to cruel and unusual punishment
and gives rise to a presumption of vindictiveness; and (2) we have discretion under
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), to
grant the requested relief.
I.
We review a district court’s resolution of a motion under § 3582(c)(2) for
abuse of discretion and review issues of legal interpretation de novo. United States
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v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003); United States v. Pringle, 350 F.3d
1172, 1178 (11th Cir. 2003). We review the district court’s determination of the
scope of its authority under § 3582(c)(2) de novo. 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 based on a sentencing range that subsequently has
been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The
amendment to the Guidelines must be retroactively applicable, however, and only
amendments listed in U.S.S.G. § 1B1.10(c) qualify as retroactively applicable
amendments warranting § 3582(c)(2) relief. U.S.S.G. § 1B1.10(a)(1), (c); United
States v. Armstrong, 347 F.3d 905, 907–08 (11th Cir. 2003).
Amendment 651 elucidated, inter alia, the standard for imposing departures
pursuant to U.S.S.G. § 4A1.3 based on the inadequacy of a defendant’s criminal
history category. See U.S.S.G. App. C, Amend. 651, Reason for Amendment.
Amendment 651 is not listed in § 1B1.10(c), and, therefore, it is not a retroactively
applicable amendment that may be the basis for § 3582(c)(2) relief. See U.S.S.G. §
1B1.10(c) (listing the retroactively applicable amendments, which does not include
Amendment 651).
Proceedings under § 3582(c)(2) and § 1B1.10 “do not constitute a full
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resentencing of the defendant” or a de novo resentencing. U.S.S.G. §
1B1.10(a)(3); 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. Moreover, the
Supreme Court’s decision in Booker does not provide an independent basis for
granting a sentence reduction in the context of § 3582(c)(2) proceedings because
Booker does not apply to § 3582(c)(2) proceedings. United States v. Melvin, 556
F.3d 1190, 1192 (11th Cir.), cert. denied, 129 S. Ct. 2382 (2009).
After reviewing the record and reading the parties’ briefs, we conclude that
Jones’s arguments are unavailing because Amendment 651 cannot provide the
basis for § 3582(c)(2) relief, and the district court lacked jurisdiction to consider
“extraneous resentencing issues” in the § 3582(c)(2) proceeding. Accordingly, we
affirm the district court’s order denying a sentence reduction.
AFFIRMED.
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