[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-17165 ELEVENTH CIRCUIT
AUGUST 5, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-00064-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS PORTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 5, 2009)
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Marcus Porter, through counsel, appeals the district court’s denial of his
counseled motion for a reduced sentence, filed pursuant to 18 U.S.C. § 3582(c)(2).
Porter’s motion was based on Amendment 706 to the Guidelines, which reduced
base offense levels applicable to crack cocaine. The court denied Porter’s motion
because Amendment 706 did not affect his mandatory term of life imprisonment
under 21 U.S.C. § 841(b)(1)(A), even though he received a downward departure
under Fed.R.Crim.P. 35(b). On appeal, Porter submits that the district court erred
in denying his § 3582(c)(2) motion, but he acknowledges that his position is
controlled by this Court’s decision in United States v. Williams, 549 F.3d 1337
(11th Cir. 2008), and provides that he merely is preserving the issue in the event
the Williams is altered or reversed. Porter submits that Williams was decided
wrongly because it overlooked that the Sentencing Commission used “guideline
range” as “a precise term of art,” submitting that a “guideline range” is “wholly
distinct” from a “guideline sentence.” Porter also argues that Williams offends the
policy of encouraging defendants to provide substantial assistance.
“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 modify a term of imprisonment in
the case of a defendant who was sentenced to a term of imprisonment based on a
sentencing range that subsequently has been lowered by the Sentencing
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Commission. 18 U.S.C. § 3582(c)(2).
As Porter concedes on appeal, the district court did not err in denying his
§ 3582(c)(2) motion because, even though he received a downward departure
under Fed.R.Crim.P. 35(b), his sentence was based on the statutory minimum term
of imprisonment, not his otherwise applicable range calculated under U.S.S.G.
§ 2D1.1. See U.S.S.G. § 1B1.10, comment. (n.1(A)); Williams, 549 F.3d
at 1339-42 (holding that the district court did not have the authority to grant
Williams a reduction because Amendment 706 had no effect on his statutory
minimum term of imprisonment, which had become his guideline range, even
though he received a downward departure under U.S.S.G. § 5K1.1 and 18 U.S.C.
§ 3553(e)).
Based on our review of the record and the parties’ briefs, we discern no
reversible error. Accordingly, we affirm.
AFFIRMED.
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