[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11251 ELEVENTH CIRCUIT
OCTOBER 22, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-00023-CR-4-RH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARENCE EDWARD HOLSEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 22, 2009)
Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Clarence Edward Holsey, a pro se federal prisoner convicted of crack
cocaine and firearm offenses, appeals the denial of his motion for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the
Sentencing Guidelines. No reversible error has been shown; we affirm.*
When a sentencing guideline is amended and given retroactive effect, the
district court may reduce an already incarcerated defendant’s term of imprisonment
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); see
also U.S.S.G. § 1B1.10(a)(1). 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). 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).
*
We review de novo the district court’s legal conclusions about the scope of its authority
in a section 3582(c)(2) proceeding. United States v. James, 548 F.3d 983, 984 (11th Cir. 2008).
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Here, the district court denied Holsey’s section 3582(c)(2) motion because
he was not sentenced pursuant to the drug quantity table but, instead, was
sentenced pursuant to U.S.S.G. § 2K2.1, the guideline for firearm offenses. Holsey
was convicted on two crack cocaine counts and on one count of being a felon in
possession of a firearm. Pursuant to U.S.S.G. § 3D1.2(c), the drug counts were
grouped with, and treated as separate offense characteristics of, the firearm count.
Because section 2K2.1 yielded the higher guidelines range, see U.S.S.G. §
3D1.3(a), it was used to calculate Holsey’s range of 151 to 188 months. Holsey
received a total sentence of 151 months, comprised of 151 months on the drug
counts and 120 concurrent months (the statutory maximum) on the firearm count.
On appeal, Holsey argues that his sentence was based on the drug quantity
table. But the record shows clearly that Holsey’s guidelines range was calculated
under section 2K2.1. We conclude that the district court determined correctly that
it lacked authority to reduce Holsey’s sentence pursuant to Amendment 706
because his guidelines range was unaffected by the amendment. See United States
v. Moore, 541 F.3d 1323, 1327-28 (11th Cir. 2008), cert. denied, McFadden v.
United States, 129 S.Ct. 965 (2009), and cert. denied, 129 S.Ct. 1601 (2009)
(concluding that defendants sentenced as career offenders were ineligible for
sentence reductions under Amendment 706 because their guidelines ranges were
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not based on the drug quantity offense levels that had been lowered by Amendment
706).
AFFIRMED.
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