[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 28, 2009
No. 09-12930 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 91-00301-CR-T-17-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLON MCNEALY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 28, 2009)
Before BIRCH, BLACK and HULL, Circuit Judges.
PER CURIAM:
Marlon McNealy appeals the district court’s denial of his motion for a
reduced sentence, filed pursuant to 18 U.S.C. § 3582(c)(2) and Amendments 505
and 706 to the Sentencing Guidelines. McNealy was originally sentenced pursuant
to a statutory mandatory minimum of life imprisonment. McNealy appealed his
convictions and sentences and this Court affirmed. United States v. Brazel, 102
F.3d 1120, 1164 (11th Cir. 1997).
McNealy asserts the district court erred by denying his § 3582(c)(2) motion
because the mandatory minimum, pursuant to 21 U.S.C. § 851, was inapplicable.
He contends that, because his prior offenses were juvenile offenses, § 851 should
not have applied to give him a mandatory life sentence. Citing Harris v. United
States, 149 F.3d 1304, 1305 (11th Cir. 1998), McNealy asserts the applicability of
a § 851 notice is jurisdictional and can be raised at anytime, including a
§ 3582(c)(2) proceeding.
We review a district court’s decision whether to reduce a sentence under
§ 3582(c)(2) for abuse of discretion and its conclusions regarding the scope of its
legal authority de novo. United States v. Williams, 549 F.3d 1337, 1338-39 (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 Guidelines
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range that has been lowered subsequently by the Sentencing Commission. 18
U.S.C. § 3582(c)(2).
Because a sentencing adjustment pursuant to § 3582(c)(2) does not
constitute a de novo resentencing, “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). Indeed, § 3582(c)(2) does not give the district court “jurisdiction to
consider extraneous resentencing issues.” Id. at 782. In Harris, we held that a
defendant could raise a jurisdictional challenge to the application of § 851 in a 28
U.S.C. § 2255 motion to vacate even though he failed to object at trial or on direct
appeal. 149 F.3d at 1307-09.
Because McNealy’s sentence was based upon the applicable statutory
mandatory minimum of life imprisonment rather than his original Guidelines
range, he was ineligible for a § 3582(c)(2) reduction based upon Amendment 706
or Amendment 505. See Williams, 549 F.3d at 1342 (“[A] defendant whose
original sentencing range was based on something other than § 2D1.1[, such as the
application of a statutory mandatory minimum term of imprisonment,] is precluded
from receiving a sentence reduction, since the amendment[s] would not lower his
applicable guidelines range.”). McNealy is attempting to challenge an extraneous
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sentencing issue, namely, the application of § 851, which led to his mandatory life
sentence. However, the correct avenue for challenging original sentencing
determinations is either on direct appeal or in a § 2255 motion to vacate.
McNealy’s reliance on Harris is inapposite because Harris involved a § 2255
motion to vacate which allows for jurisdictional challenges, whereas § 3582(c)(2)
is limited to determining whether a defendant was sentenced based on a Guidelines
range that has been amended since his original sentencing. See Harris, 149 F.3d at
1307-09. Accordingly, we affirm the district court’s denial of McNealy’s
§ 3582(c)(2) motion.
AFFIRMED.
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