[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15340
AUGUST 5, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 97-00103-CR-ORL-18B
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FITZROY GEORGE GUTZMORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 5, 2009)
Before DUBINA, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.
PER CURIAM:
Fitzroy George Gutzmore, through counsel, appeals the district court’s
denial of his motion for a reduced sentence, pursuant to 18 U.S.C. § 3582(c)(2).
Gutzmore’s § 3582(c)(2) motion was based on Amendment 706 to the Guidelines,
which reduced base offense levels applicable to crack cocaine.1
On appeal, Gutzmore argues that he is eligible for a sentence reduction
pursuant to § 3582(c)(2) because Amendment 706 lowered his base offense level
from 38 to 36. He argues that the district court’s original sentencing
determinations regarding the drug quantity attributed to him cannot stand in light
of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Gutzmore argues that his sentence is disparate with similarly situated individuals
that were sentenced after Apprendi and United States v. Booker, 543 U.S. 220, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005). Finally, he argues that the U.S. Sentencing
Commission exceeded its delegated authority because U.S.S.G.
§ 1B1.10(b)(2)(A)’s prohibition against a reduction below the amended guideline
range violates Booker now that the guidelines are advisory.
“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 reduce a term of imprisonment in
the case of a defendant who was sentenced to a term of imprisonment based on a
1
The Government’s motion for summary affirmance is DENIED AS MOOT and
its motion to treat the motion as a brief is GRANTED.
2
sentencing range that has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). Any reduction, however, must be
“consistent with applicable policy statements issued by the Sentencing
Commission.” Id. The applicable policy statements, found in § 1B1.10, state a
reduction of a term of imprisonment is not authorized if the retroactive amendment
does not have the effect of lowering the defendant’s applicable guideline range.
U.S.S.G. § 1B1.10(a)(2)(B).
Here, Amendment 706 would reduce Gutzmore’s base offense level to 36.
However, all other sentencing determinations remain unchanged. See United
States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005) (holding that, with the
exception of the amended guideline range, “all original sentencing determinations
remain unchanged”). Therefore, after reinstating the orginal enhancements that
total 4 levels, Gutzmore would have a total offense level of 40 and a criminal
history category of III, and his applicable guideline range remains unchanged.
See U.S.S.G. Ch. 5, Pt. A (table) (providing a sentencing range of 360 months’ to
life imprisonment for a defendant with a criminal history category of III and an
offense level of 40 to 43). Therefore, the district court properly determined that it
was not authorized to reduce Gutzmore’s sentence pursuant to § 3582(c)(2). See
U.S.S.G. § 1B1.10(a)(2)(B) (stating that a reduction of a term of imprisonment is
3
not authorized if the retroactive amendment does not have the effect of lowering
the defendant’s applicable guideline range). Finally, Gutzmore’s Booker argument
is foreclosed by precedent. See United States v. Melvin, 556 F.3d 1190, 1192-93
(11th Cir. 2009) (holding that Booker is inapplicable in § 3582(c)(2) proceedings),
cert. denied, (U.S. May 18, 2009) (No. 08-8664). Accordingly, we affirm.
AFFIRMED.2
2
Gutzmore’s request for oral argument is denied.
4