[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 11, 2009
No. 08-14529 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 91-00111-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY JAMES HALL,
a.k.a Johnny Red,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 11, 2009)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Johnny James Hall appeals the district court’s denial of his pro se motion for
a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2). Hall based that motion on
Amendment 706 to the Sentencing Guidelines, which reduced base offense levels
applicable to certain crack cocaine offenses. On appeal, Hall argues that the
district court abused its discretion in determining he was ineligible for a sentence
reduction because nothing in the language of § 3582(c)(2) requires that a
defendant’s guideline range actually be lowered by an amendment, but rather the
sentence must only be based on a subsequently lowered range. He further asserts
that any language in the Guidelines removing authorization to reduce a sentence
from the courts would only be advisory in light of United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005), and Kimbrough v. United States, 552 U.S. 85, 128
S. Ct. 558 (2007). Finally, according to Hall, the district court was required to
consider the 18 U.S.C. § 3553(a) factors in determining whether he qualified for a
sentence reduction.
Following his conviction for three drug-related offenses, the district court
held Hall accountable for five kilograms of crack cocaine at sentencing. The
district court assigned a base offense level of 38 but applied a two-level
enhancement, giving Hall a total offense level of 40.1 That total offense level,
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According to the Government’s brief on appeal, the district court at sentencing made a
mistake in Hall’s favor insofar as five kilograms of cocaine base should have yielded a base
offense level of 40, not 38.
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coupled with a criminal history category of I, rendered a Guidelines range of 292
to 365 months. The district court sentenced Hall to 300 months imprisonment.
“We review a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343
(11th Cir. 2003) (citation omitted). However, “we review de novo the district
court’s legal conclusions regarding the scope of its authority under the Sentencing
Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002) (per
curiam) (citation omitted).
A district court generally cannot modify a term of imprisonment after it has
been imposed. United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005) (per
curiam). 18 U.S.C. § 3582(c)(2), however, provides for an exception:
[I]n the case of a defendant who has been sentenced to a
term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. § 944(o), . . . the
court may reduce the term of imprisonment, after
considering the factors set forth in [18 U.S.C. § 3553(a)]
to the extent that they are applicable, if such a reduction
is consistent with applicable policy statements issued by
the Sentencing Commission.
18 U.S.C. § 3582(c)(2). Amendment 706 to the Sentencing Guidelines reduced by
two levels the base offense level for crack cocaine offenses that involved less than
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4.5 kilograms of crack cocaine. U.S. S ENTENCING G UIDELINES M ANUAL app. C,
amend. 706. However, a movant is not entitled to a resentencing pursuant to
Amendment 706 when the provisions of that amendment do not result in a lower
base offense level and Guidelines range. United States v. James, 548 F.3d 983,
986 (11th Cir. 2008) (per curiam).
Here, the district court did not abuse its discretion in denying Hall’s § 3582
motion because he received a base offense level of 38 based on a finding that he
was accountable for five kilograms of crack cocaine. After Amendment 706, Hall
would still receive a base offense level of 38 because he was held accountable for
more than 4.5 kilograms of crack cocaine. See U.S. S ENTENCING G UIDELINES
M ANUAL § 2D1.1(c)(1). Therefore, Hall was not entitled to a sentence reduction
because Amendment 706 did not lower his base offense level or Guidelines range.
See James 548 F.3d at 986. Furthermore, Hall’s argument that he should be
resentenced pursuant to Booker and Kimbrough is foreclosed by our precedent.
See United States v. Melvin, 556 F.3d 1190, 1192-93 (11th Cir.) (per curiam)
(holding that Booker and Kimbrough are inapplicable to § 3582(c)(2) proceedings),
cert. denied, 129 S. Ct. 2382 (2009). Lastly, because Hall was ineligible for a
sentence reduction, the district court need not have considered the § 3553(a)
factors. See United States v. Bravo, 203 F.3d 778, 780-81 (11th Cir. 2000)
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(reasoning that the record must demonstrate that the district court considered the
§ 3553(a) factors only if the court first determines to reduce a defendant’s
sentence); see also United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998)
(“Second, in light of the conclusion reached in the first step, the court must
consider the factors listed in § 3553(a) and determine whether or not to reduce the
defendant’s original sentence.”) (emphasis added). As a result, the district court
did not abuse its discretion in denying Hall’s § 3582 motion.
Accordingly, we affirm.
AFFIRMED.
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