[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 12, 2009
No. 09-10453 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00103-CR-ORL-22-JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE JAMES HULL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 12, 2009)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
In United States v. Hull, 238 Fed.Appx. 543 (11th Cir. 2007), we affirmed
appellant’s convictions and sentences for possession of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), and possession of marijuana, in
violation of 21 U.S.C. § 844(a).1 On March 5, 2008, appellant moved the district
court to reduce his sentence for the cocaine offense pursuant to 18 U.S.C.
§ 3582(c)(2) based on Amendment 706 to the Sentencing Guidelines. The district
court denied his motion on the ground that he was not eligible for a sentence
reduction because Amendment 706 did not have an effect of lowering the
Guideline sentence range for appellant’s cocaine offense; the amendment applies
only in crack cocaine cases. The court did not address the question of whether
appellant could receive the reduction on other grounds, such as the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005).
Appellant now appeals the court’s ruling. He concedes that United States v.
Melvin, 556 F.3d 1190 (11th Cir. 2009), cert. denied, 129 S.Ct. 2382 (2009), held
that Booker did not apply in § 3582(c)(2) proceedings, but argues that Melvin was
wrongly decided. He argues further that the district court should have considered
that he had successfully completed a drug abuse program and that unequal
application of § 3582(c)(2) based on whether a defendant was sentenced before or
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The district court sentenced appellant to prison for 87 months for the cocaine offense
and a concurrent 12 months for the marijuana offense.
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after Booker denies him due process and equal protection of the law.
A district court may modify a term of imprisonment on the ground that the
Guidelines sentence range has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). Resentencing under § 3582(c)(2) is not
available under Amendment 706, however, unless the amendment lowers the
defendant’s base offense level and Guidelines sentence range. United States v.
James, 548 F.3d 983, 986 (11th Cir. 2008). Amendment 706 did not lower the
base offense level for appellant’s cocaine offense; hence, it is inapplicable here.
Melvin forecloses appellant’s Booker argument, as well as his arguments based on
his satisfactory completion of the drug abuse program and the Due Process and
Equal Protection Clauses. Section 3582(c)(2) is not a vehicle for revisiting the
merits of appellant’s sentence.
AFFIRMED.
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