[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 3, 2009
No. 08-12672 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 90-00016-CR-CB-002
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHANIE NODD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 3, 2009)
Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Stephanie Nodd, a pro se federal prisoner convicted of a crack cocaine
offense, appeals the denial of her motion to reduce her 360-month sentence, 18
U.S.C. § 3582(c)(2). No reversible error has been shown; we affirm.
Nodd originally was assigned a base offense level of 40, based on her
possession of 8 kilograms of crack cocaine. Her guidelines range was life
imprisonment. But the district court departed downwardly and imposed a 360-
month sentence because Nodd was not as culpable as leaders of the conspiracy
who had received life sentences.1
Nodd filed her first section 3582(c)(2) motion pursuant to Amendment 505
to the Sentencing Guidelines.2 The district court acknowledged that Amendment
505 reduced the maximum base offense level in crack cocaine cases to 38 and
noted that, with a base offense level of 38, Nodd’s guidelines range would be 324
to 405 months. But the court denied the motion, concluding that a sentence
reduction was inappropriate in Nodd’s case because her original sentence
1
On Nodd’s direct appeal, we remanded her case to the district court for resentencing so
that the court could make specific findings about the scope of her participation in the conspiracy
and the quantity of drugs attributable to her. On remand, the district court again imposed a 360-
month sentence.
2
Amendment 505, which became effective after Nodd was sentenced and is retroactively
applicable, reduced the upper limits of the U.S.S.G. § 2D1.1 drug quantity table and capped the
base offense level at 38 for a defendant who is accountable for 1.5 kilograms or more of cocaine
base. U.S.S.G. App. C, Amend. 505.
2
represented a substantial departure, both from her original guidelines range and the
range calculated under Amendment 505.
In the instant section 3582(c)(2) motion, Nodd sought a sentence reduction
pursuant to Amendment 706, which changed the threshold drug quantity for a base
offense level of 38 from 1.5 to 4.5 kilograms of crack cocaine. She argued that
both Amendments 505 and 706 reduced the maximum base offense level for crack
cocaine offenses to 38; so, because her offense level remained at 40, she was
entitled to have her base offense level reduced to 38. The district court concluded
that Amendment 706 did not apply to Nodd because she had been held accountable
for 8 kilograms of crack cocaine, and, thus, the amendment did not lower her
guidelines range.
We review de novo the district court’s legal conclusions and questions of
statutory interpretation in a section 3582(c)(2) proceeding. United States v.
Moore, 541 F.3d 1323, 1326 (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).
On appeal, Nodd repeats her argument that she is entitled to have her base offense
level reduced to 38 pursuant to Amendment 706.
When a sentencing guideline is amended and given retroactive effect, the
district court, “after considering the factors set forth in [18 U.S.C. §] 3553(a) to the
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extent that they are applicable,” may reduce a previous sentence under the
amendment “if such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A reduction of a
term of imprisonment is not “consistent with applicable policy statements issued
by the Sentencing Commission” -- and is, therefore, not authorized under section
3582(c)(2) -- 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).
After Amendment 706, the maximum base offense level of 38 in crack
cocaine cases corresponds to 4.5 kilograms or more of crack cocaine instead of 1.5
kilograms or more. So, because Nodd was held accountable for 8 kilograms of
crack cocaine, Amendment 706 does not have the effect of lowering her guidelines
range and the district court committed no error in denying her section 3582(c)(2)
motion. The applicability of Amendment 706 is driven by drug quantity; the
amendment was designed to lower the base offense levels only of those defendants
attributed with less than 4.5 kilograms of crack cocaine. See United States v.
Jones, 548 F.3d 1366, 1369 (11th Cir. 2008), cert. denied (U.S. Mar. 23, 2009)
(No. 08-8865) (explaining that “a base offense level of 38 still applies to
defendants responsible for 4.5 kilograms or more” of crack cocaine).
Nodd takes issue with her base offense level of 40. But Amendment 505,
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not Amendment 706, gave Nodd the opportunity to have her base offense level
reduced to the current cap of 38. Contrary to Nodd’s assertion, Amendment 706
did not affect the base offense level cap of 38 established by Amendment 505; the
cap of 38 remained unchanged after Amendment 706. That the district court, in its
discretion, chose not to reduce Nodd’s sentence under Amendment 505 is
unimportant to the resolution of the present appeal.3
Nodd also argues that her original sentence incorrectly was calculated
because the district court applied the guidelines in effect at the time of sentencing
instead of when she committed the offense. She characterizes this as an ex post
facto violation that this Court now can correct to prevent manifest injustice. But
Nodd’s challenges to the original calculation of her sentence are beyond the scope
of a section 3582(c)(2) proceeding, and we need not address them. See 18 U.S.C.
§ 3582(c)(2) (limiting proceedings under this statute to cases where a retroactive
amendment affects the applicable guidelines range).
AFFIRMED.
3
In the prior section 3582(c)(2) proceedings, the court did not explicitly change Nodd’s
base offense level; but the court did acknowledge that Nodd’s base offense level would be 38
under the amended guideline.
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