[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 5, 2009
No. 08-14470 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00175-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VIRGIL JAWAN SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 5, 2009)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Virgil J. Smith, pro se, appeals the district court’s denial of his pro se motion
for a reduced sentence, filed pursuant to 18 U.S.C. § 3582(c)(2). Smith’s
§ 3582(c)(2) motion was based on Amendment 706 to the United States
Sentencing Guidelines, which reduced base offense levels applicable to crack
cocaine. On appeal, Smith argues that his career offender status is an enhancement
to the Guidelines sentencing range for crack cocaine offenders found in § 2D1.1.
He contends that because § 2D1.1 dictated his original base offense level,
Amendment 706 lowered his original Guidelines range. Next, Smith argues the
district court should have reduced his sentence in recognition of the factors listed
in 18 U.S.C. § 3553(a). Specifically, Smith argues that the court should have
reduced his sentence because of his efforts at rehabilitation. Lastly, Smith argues
that the Supreme Court recognized in Kimbrough v. United States, 552 U.S. 85,
128 S.Ct. 558, 169 L.Ed.2d 481 (2007), that crack cocaine sentences historically
have been unreasonably high. According to Smith, his sentence should be reduced
in light of this holding.
“We review de novo a district court’s conclusions about the scope of its
legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d
983, 984 (11th Cir. 2008). A district court may not modify a term of imprisonment
unless a defendant was sentenced based on a sentencing range that has
“subsequently been lowered” by the Sentencing Commission. See 18 U.S.C.
2
§§ 3582(c)(1)(B), (c)(2). When the district court is determining whether to modify
a defendant’s sentence pursuant to § 3582(c)(2), “all original sentencing
determinations remain unchanged with the sole exception of the guideline range
that has been amended since the original sentencing.” United States v. Bravo, 203
F.3d 778, 781 (11th Cir. 2000) (emphasis in original).
Amendment 706, which has been made retroactive, amends the Drug
Quantity Table in § 2D1.1(c) “to provide a two-level reduction in base offense
levels for crack cocaine offenses.” United States v. Moore, 541 F.3d 1323, 1325
(11th Cir. 2008), cert. denied, McFadden v. United States, 129 S.Ct. 965 (2009),
and cert. denied, (U.S. Mar. 9, 2009) (No. 08-8554). However, if a defendant is a
career offender, his base offense level is determined under the career-offender
guideline in § 4B1.1(b) and not the drug-quantity guideline in § 2D1.1(c). Id. at
1327-28. For this reason, we held in Moore that defendants who are sentenced
under the career-offender guideline are not sentenced under § 2D1.1, and therefore
Amendment 706 has no effect on their applicable guideline range. Id.
Just as in Moore, Smith’s sentencing range was determined by his career-
offender status under U.S.S.G. § 4B1.1, and his crack cocaine base offense level
played no role in his ultimate sentence. Therefore, Smith is ineligible for relief
under Amendment 706. See Moore, 541 F.3d at 1327-28, 1330
3
Smith’s argument that he should receive a sentence reduction under
Kimbrough is foreclosed by precedent. See United States v. Melvin, 556 F.3d
1190, 1192-93 (11th Cir. 2009), cert. denied, (U.S. May 18, 2009) (No. 08-8664)
(holding that Kimbrough applies to original sentencing proceedings and does “not
address motions to reduce a sentence under § 3582(c)(2)”). Further, the court
could not have reduced Smith’s sentence based on his post-sentencing conduct,
standing alone, because § 3582(c)(2) only authorizes a court to reduce a sentence
where a defendant’s original sentencing range has been reduced by the Sentencing
Commission. See 18 U.S.C. § 3582(c)(2). We affirm.
AFFIRMED.
4
United States v. Virgil Jawan Smith
Combined Opinion