[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 10, 2009
No. 08-15477 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 91-00176-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE GREGORY BATTEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 10, 2009)
Before EDMONDSON, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Eddie Gregory Batten, a pro se 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.
Batten originally received a base offense level of 40 based on the 5
kilograms of crack cocaine attributable to him. With no other sentencing
adjustments and a criminal history category of II, Batten’s guidelines range was
324 to 405 months’ imprisonment. The district court sentenced Batten to 405
months in addition to a consecutive 60-month sentence for a firearm count.
In his section 3582(c)(2) motion, Batten sought to have his base offense
level reduced to 38 and to have his sentence reduced pursuant to Amendment 706.
But the district court concluded that Amendment 706 did not apply to Batten
because his offense involved more than 4.5 kilograms of crack cocaine and denied
the section 3582(c)(2) motion.
On appeal, Batten argues that Amendment 706 allowed the district court to
lower his base offense level from 40 to 38 because 38 is now the highest base
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).
2
offense level and corresponds to the amount of drugs attributable to him. 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, 129 S.Ct. 1601 (2009).
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
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, unauthorized 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 drug cases
corresponds to 4.5 kilograms or more of crack cocaine instead of 1.5 kilograms or
more. 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.
3
Jones, 548 F.3d 1366, 1369 (11th Cir. 2008), cert. denied, 129 S.Ct. 1657 (2009)
(explaining that “a base offense level of 38 still applies to defendants responsible
for 4.5 kilograms or more” of crack cocaine). So, because Batten was held
accountable for 5 kilograms of crack cocaine, Amendment 706 was inapplicable to
him, and the district court committed no error in denying the section 3582(c)(2)
motion.
Batten takes issue with his base offense level of 40, which has been
abolished from the drug quantity table since his 1992 sentencing. But Amendment
505 -- not Amendment 706 -- reduced the top-end base offense level for drug
crimes from 42 to 38. U.S.S.G. App. C, Amend. 505. Amendment 706 had no
affect on the base offense level cap of 38 established by Amendment 505. Thus,
Amendment 505 gave Batten the opportunity to have his base offense level
reduced to the current cap of 38. In this section 3582(c)(2) proceeding, Batten
explicitly sought relief under Amendment 706. As noted, Amendment 706 affords
Batten no relief because of the drug quantity attributable to him.2
AFFIRMED.
2
And the record indicates that the district court previously denied Batten relief under
Amendment 505 over a decade ago. See United States v. Escobar-Urrego, 110 F.3d 1556, 1560
(11th Cir. 1997) (explaining that the law-of-the-case doctrine prevented a defendant from
relitigating a sentencing issue already decided at a prior stage in the case).
4