[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 13, 2009
No. 08-13472 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 95-14025-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES E. STOKES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 13, 2009)
Before EDMONDSON, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Appellant Charles E. Stokes, a federal prisoner proceeding pro se, appeals
the district court’s denial of his motion for reduction of sentence, filed pursuant to
18 U.S.C. § 3582(c). No reversible error has been shown; we affirm.
Stokes was convicted of possession of crack cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). Stoke’s base offense level was 32
when calculated pursuant to U.S.S.G. § 2D1.1. But Stoke’s sentence was enhanced
because he was classified as a career offender under U.S.S.G. § 4B1.1(a): he was
at least eighteen years old at the time of the instant drug felony offense; and he had
two earlier drug felony convictions. Because the statutory maximum sentence for
the offense was life, with the career offender enhancement Stokes’s total offense
level was 37, U.S.S.G. § 4B1.1(b); and Stoke’s guideline imprisonment range was
360 months to life imprisonment. Also, the government filed a notice of sentence
enhancement pursuant to 21 U.S.C. § 851; three prior drug convictions were cited
to enhance Stokes’s sentence to a statutory mandatory minimum of life
imprisonment. 21 U.S.C. § § 841(b)(1)(A) and 851. The mandatory minimum
term of life imprisonment was imposed.
Pursuant to 18 U.S.C. § 3582(c)(2), Stokes filed a motion to reduce his
sentence based on a retroactive amendment of the guidelines for crack-cocaine
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offenses.1 The district court denied the motion. On appeal, Stokes argues that he
was due a section 3582(c) reduction: his crack-cocaine sentence was based on the
amended guideline even if the sentence imposed was otherwise enhanced. Stokes
also seeks to argue that the enhanced penalty provisions were applied incorrectly to
him; that United States v. Booker, 125 S.Ct. 738 (2005), requires the guidelines to
be applied in an advisory fashion in section 3582(c)(2) proceedings; and that the
Sentencing Commission exceeded its authority when it limited section 3582(c)(2)
reductions to a two-level decrease. None of these arguments are of merit.
United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), cert. denied,
McFadden v. United States, 129 S.Ct. 965 (2009), and cert. denied, (U.S. March 9,
2009)(No. 08-8554), and United States v. Williams, 549 F.3d 1337 (11th Cir.
2008), are dispositive of Stokes’s claimed entitlement to a sentence reduction
based on Amendment 706. In Moore, the defendants also sought the benefit of
Amendment 706 but were sentenced as career offenders; we affirmed that the
district court lacked authority under section 3582(c)(2) to grant the requested
sentence reductions:
Where a retroactively applicable guideline amendment
reduces a defendant’s base offense level, but does not
1
Amendment 706 revised U.S.S.G. § 2D1.1 by reducing by two levels the offense levels
applicable to crack-cocaine offenses. Subject to technical changes effected by Amendment 711,
Amendment 706 was made retroactive as of 3 March 2008 by Amendment 713.
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alter the sentencing range upon which his or her sentence
was based, § 3582(c)(2) does not authorize a reduction in
sentence. Here, although Amendment 706 would reduce
the base offense levels applicable to defendants, it would
not affect their guideline ranges because they were
sentenced as career offenders under § 4B1.1.
Moore, 541 F.3d at 1330. And in Williams, we concluded that a statutorily
mandated minimum sentence displaced an otherwise shorter guidelines sentence in
the same manner as did the section 4B1.1 enhanced career offender provisions;
Amendment 706 effected no change to a statutorily imposed mandatory minimum
sentence. Id. at 1339-40. Because Stokes’s life sentence was not impacted on by
Amendment 706's offense level reduction, the district court was without authority
to grant the requested relief.
Stokes seeks to challenge the correctness of the enhancement applied at his
sentencing in 1996. But a section 3582 proceeding allows a sentence previously
imposed to be revisited only to the extent that the sentence is affected by a
guidelines amendment made retroactively applicable; the district court had no
authority to reconsider Stokes’s sentence on the ground that it was incorrect from
the start. See United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005)
(except for consideration of the guideline range that has been amended, all original
sentencing determinations remain unchanged).
About Stokes’s claimed Booker error, Booker too has no application to
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section 3582(c)(2) motions. Moreno, 421 F.3d at 1220. And Stokes’s argument
that the Sentencing Commission exceeded its authority when it cabined the district
court’s section 3582 authority is foreclosed by United States v. Melvin, 556 F.3d
1190, 1192 (11th Cir. 2009) (rejecting argument that Booker or Kimbrough v.
United States, 128 S.Ct. 558 (2007), prohibit limitations on a judge’s discretion in
a section 3582 proceeding), cert. denied, (U.S. May 18, 2009)(No. 08-8664).
AFFIRMED.
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