[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 18, 2009
No. 09-11981 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00035-CR-LSC-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANNY DENEASE FORD,
a.k.a. Dawn Ford,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(November 18, 2009)
Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Danny Denease Ford, a federal prisoner proceeding pro se,
appeals the district court’s order denying her 18 U.S.C. § 3582(c)(2) motion for a
sentence reduction based on Amendment 706 to the Sentencing Guidelines, which
lowered the base offense levels applicable to crack cocaine offenses. On appeal,
Ford argues that she qualified for a sentence reduction but the district court denied
her request without explanation. She asserts that she was entitled to a sentence
reduction under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed.
2d 621 (2005), and Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558, 169
L. Ed. 2d 481 (2007). She also argues that the district court sentenced her
incorrectly because she was coerced into pleading guilty, and the amount of drugs
attributed to her was incorrect. She further asserts that her due process rights were
violated because there was no evidence to prove her guilt, and the drug amount
was not properly calculated.
“We review de novo a district court’s conclusions about the scope of its legal
authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983,
984 (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
sentencing range that has subsequently been lowered by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). Any reduction, however, must be
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“consistent with applicable policy statements issued by the Sentencing
Commission.” Id. The applicable policy statements, found in § 1B1.10, state that
“the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C.
§ 3582(c)(2) and this policy statement to a term that is less than the minimum of
the amended guideline range.” U.S.S.G. § 1B1.10(b)(2)(A).
Here, we conclude from the record that the district court did not err in
denying Ford’s § 3582(c)(2) motion. Because Ford’s sentence was ultimately
based on the statutory mandatory minimum rather than the amount of crack
cocaine attributed to her, Amendment 706 did not lower the guideline range that
determined her sentence. See U.S.S.G. § 1B1.10, comment. (n.1(A)) (prohibiting a
reduction where an “amendment does not have the effect of lowering the
defendant’s applicable guideline range because of the operation of another
guideline or statutory provision (e.g., a statutory mandatory minimum term of
imprisonment.”); see also United States v. Williams, 549 F.3d 1337, 1339-42 (11th
Cir. 2008) (holding that the district court did not have the authority to grant a
sentence reduction to the defendant because Amendment 706 had no effect on his
statutory minimum term of imprisonment, which had become his guideline range).
The downward departures that Ford received pursuant to U.S.S.G. § 5K1.1 and 18
U.S.C. § 3553(e), do not affect this analysis. See id. at 1340-41 (holding that a
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downward departure, pursuant to § 5K1.1, does not waive a statutory mandatory
minimum sentence and, thereby, entitle a defendant to a sentence reduction under
Amendment 706). Furthermore, our decision in United States v. Melvin, 556 F.3d
1190, 1192 (11th Cir.), cert. denied, 129 S. Ct. 2382 (2009), where we held that
Booker and Kimbrough do not affect the limitations in U.S.S.G. § 1B1.10 on a
judge’s discretion in a § 3582(c)(2) proceeding forecloses Ford’s Booker and
Kimbrough arguments. Additionally, the district court did not err by holding that it
could not consider Ford’s arguments concerning the drug amount and the
voluntariness of her plea because § 3582(c)(2) only permitted the court to
determine whether Amendment 706 lowered Ford’s guideline range. See United
States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005) (holding that § 3582(c)(2)
does not constitute a de novo resentencing and “all original sentencing
determinations remain unchanged with the sole exception of the guideline range
that has been amended since the original sentencing” (internal quotation marks and
alteration omitted)). Accordingly, we affirm the district court’s order denying
Ford’s motion for a sentence reduction.
AFFIRMED.
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