[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 6, 2009
No. 09-11533 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 93-00121-CR-ORL-18-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY GRAHAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 6, 2009)
Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:
Terry Graham, through counsel, appeals the district court’s order granting in
part his motion for a sentencing reduction, pursuant to 18 U.S.C. § 3582(c)(2). For
the reasons set forth below, we affirm.
I.
In 1993, a jury found Graham guilty of conspiracy to possess with intent to
distribute crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and
(b)(1)(A)(iii).1 In preparing a pre-sentence investigation report (“PSI”), the
probation officer determined that Graham had a base offense level of 36 based on
the drug quantity for which he was held accountable. The probation officer also
applied a two-level enhancement for obstruction of justice, which ultimately gave
Graham an offense level of 38. The probation officer determined that Graham had
a criminal history category of IV, which, when combined with his offense level of
38, produced an applicable guideline range of 324 to 405 months’ imprisonment.
The district court sentenced Graham to the low end of that range.
In January 2009, the district court sua sponte appointed Graham counsel and
directed the parties to discuss the applicability of Amendment 706. In response,
Graham’s appointed counsel argued, inter alia, that Graham was eligible for a
sentencing reduction under Amendment 706, his amended guideline range was 262
1
Notably, § 841(b)(1)(A)(iii) provides for a statutory maximum penalty of life
imprisonment. 21 U.S.C. § 841(b)(1)(A).
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to 327 months’ imprisonment, and the court should re-sentence him below the
amended guideline range in light of the 18 U.S.C. § 3553(a) factors and United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 621 (2005), and its
progeny. In addition, and relying on Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000), counsel argued that, because the jury did not
make any specific drug-quantity findings, his applicable statutory maximum was
240 months’ imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(C), which therefore
became his guideline sentence under U.S.S.G. § 5G1.1(a).2
The district court agreed that Graham was eligible for a sentencing reduction
and that, after reducing his offense level from 38 to 36, his amended guideline
range was 262 to 327 months’ imprisonment. However, the district court rejected
his Apprendi argument, finding that it was authorized under § 3582(c)(2) only to
substitute the two-level reduction in Amendment 706. The court then considered
the § 3553(a) factors and reduced Graham’s sentence to the low end of the
amended guideline range.
II.
“We review de novo a district court’s conclusions about the scope of its
2
See U.S.S.G. § 5G1.1(a) (“Where the statutorily authorized maximum sentence is less than
the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall
be the guideline sentence.”).
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legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d
983, 984 (11th Cir. 2008). Under § 3582(c)(2), a district court may modify a
defendant’s term of imprisonment where he “has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by
the Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2). Any such reduction
must also be consistent with the Commission’s applicable policy statement in
U.S.S.G. § 1B1.10. See id.
III.
In this case, the district court granted in part Graham’s motion for a
sentencing reduction, re-sentencing him to the low-end of the amended guideline
range. Nonetheless, Graham contends on appeal that the court should have
imposed an even greater reduction for two general reasons. First, Graham repeats
his Apprendi argument that, because the jury never made specific drug-quantity
findings, the applicable statutory maximum penalty was 240 months’
imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(C), which therefore became his
guideline sentence under U.S.S.G. § 5G1.1(a). However, the district court
correctly found that it was not authorized to revisit these calculations in the
§ 3582(c)(2) proceeding. U.S.S.G. § 1B1.10(b)(1) (“[T]he court shall substitute
only the amendments listed in subsection (c) for the corresponding guideline
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provisions that were applied when the defendant was sentenced and shall leave all
other guideline application decisions unaffected.”); see United States v. Melvin,
556 F.3d 1190, 1190 (11th Cir.) (“hold[ing] that a district court is bound by the
limitations on its discretion imposed by § 3582(c)(2) and the applicable policy
statements by the Sentencing Commission”) (emphasis added), cert. denied, 129
S.Ct. 2382 (2009). Second, Graham generally relies on Booker, its progeny, and
the § 3553(a) factors, but such reliance is foreclosed by our case law. See Melvin,
556 F.3d at 1192-94 (holding that, despite Booker, the district court was not
authorized to reduce the defendant’s sentence below the low end of the amended
guideline range). Accordingly, we affirm.
AFFIRMED.
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