[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 25, 2009
No. 08-16424 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-00065-CR-002-CDL-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS EUGENE MITCHELL,
a.k.a. Paradise,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 25, 2009)
Before EDMONDSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Curtis Eugene Mitchell, a federal prisoner convicted of a crack cocaine
offense, appeals the denial of his motion for a sentence reduction, 18 U.S.C. §
3582(c)(2), based on Amendment 706 to the Sentencing Guidelines.1 No reversible
error has been shown; we affirm.
The district court denied the section 3582(c)(2) motion because Mitchell had
received the statutory mandatory minimum sentence. On appeal, Mitchell argues
that the mandatory minimum -- which operated to deny him a sentence reduction
under Amendment 706 -- violates principles of equal protection and due process
because the crack-to-powder cocaine sentencing ratio is unrelated to a legitimate
state interest.
We review the denial of a section 3582(c)(2) motion for an abuse of
discretion. United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005). But
we review Mitchell’s constitutional claim only for plain error because he did not
raise it in the district court. Id. at 1220.
A district court may reduce a term of imprisonment for a “defendant who
has been sentenced to a term of imprisonment based on a sentencing range that has
1
Amendment 706 -- which became retroactive on 3 March 2008, U.S.S.G. App. C,
Amend. 713 (Supp. 1 May 2008) -- reduced by two the base offense levels in crack cocaine
sentences calculated pursuant to the drug quantity table, U.S.S.G. § 2D1.1(c).
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subsequently been lowered by the Sentencing Commission.” 18 U.S.C. §
3582(c)(2). But a defendant who initially was sentenced to the statutory minimum
is ineligible for a reduction under Amendment 706 and section 3582(c)(2). United
States v. Williams, 549 F.3d 1337, 1342 (11th Cir. 2008). Thus, because Mitchell
received the mandatory minimum sentence, the district court abused no discretion
in denying the section 3582(c)(2) motion; Amendment 706 did not have the effect
of lowering his guidelines range. See U.S.S.G. § 1B1.10, cmt. n.1(A) (noting that
“the operation of another guideline or statutory provision,” such as “a statutory
mandatory minimum term of imprisonment,” would prevent Amendment 706 from
“hav[ing] the effect of lowering the defendant’s applicable guideline range”).
About Mitchell’s due process and equal protection claim, constitutional
challenges to an original sentence are not cognizable under section 3582(c)(2). See
United States v. Bravo, 203 F.3d 778, 780-82 (11th Cir. 2000) (concluding that a
district court had no jurisdiction in a section 3582(c)(2) proceeding to consider a
defendant’s claim that his sentence constituted cruel and unusual punishment).
Thus, the district court committed no plain error in denying the section 3582(c)(2)
motion.
AFFIRMED.
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