[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12067 ELEVENTH CIRCUIT
November 12, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 90-04051-CR-4-WS-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHANIEL JAMES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 12, 2008)
Before CARNES, MARCUS, and PRYOR, Circuit Judges.
PER CURIAM:
Nathaniel James, a federal prisoner who was convicted of one felony count
involving a crack cocaine and powder cocaine offense, appeals the district court’s
judgment denying his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2).
He contends that Amendment 706 to the sentencing guidelines lowers his base
offense level by two levels and, as a result, lowers his guidelines range. He also
contends that during the resentencing proceeding he seeks the district court should
recalculate the drug quantities for which he is accountable in light of United States
v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and Kimbrough v. United States,
552 U.S. __, 128 S. Ct. 558 (2007).
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. Moore, 541 F.3d 1323,
1326 (11th Cir. 2008) (citing United States v. White, 305 F.3d 1264, 1267 (11th
Cir. 2002)).1 A district court generally cannot modify a term of imprisonment once
imposed. United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005).
However, there is an exception under 18 U.S.C. § 3582(c)(2) that provides:
[When] a defendant . . . has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by
the Sentencing Commission pursuant to 28 U.S.C. 994(o), . . ., the
court may reduce the term of imprisonment, after considering the
1
Once it is established that 18 U.S.C. § 3582 applies, a district court’s decision to grant
or deny a sentence reduction is reviewed only for abuse of discretion. United States v. Vautier,
144 F.3d 756, 759, n.3 (11th Cir. 1998); see also White, 305 F.3d at 1267.
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factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are
applicable, if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2); see also Moreno, 421 F.3d at 1219.
For crack cocaine offenses, Amendment 706 to the Sentencing Guidelines,
considered along with Amendment 713, retroactively reduced applicable base
offense levels. United States v. Moore, 541 F.3d 1323, 1325 (11th Cir. 2008); see
also U.S.S.G. App. C, Amend. 706 (2007); Amend. 713 (Supp. May 1, 2008).
Under Moore, however, “[w]here a retroactively applicable guideline amendment
reduces a defendant’s base offense level, but does not alter the sentencing range
upon which his or her sentence was based, § 3582(c)(2) does not authorize a
reduction in sentence.” 541 F.3d at 1330.
In Moore we held that Amendment 706 did not alter the sentencing range of
defendants convicted of crack cocaine offenses because those defendants had been
sentenced as career offenders under U.S.S.G. § 4B1.1. Id. at 1328. We followed
and applied the Moore decision in United States v. Thomas, No. 08-11492, 2008
WL 4659359 (11th Cir. Oct. 23, 2008). The defendant in that case had been
convicted of crack cocaine offenses and of being a felon in possession of a firearm,
and for purposes of sentencing those convictions were grouped together under
U.S.S.G. § 3D1.2(c). Id. Because of the application of the U.S.S.G. § 4B1.4
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armed career criminal provisions in Thomas’ case, Amendment 706 did not alter
his sentence, and therefore § 3582(c)(2) did not authorize a reduction in his
sentence.2 Id. Moore and Thomas dictate the result in this case. Although the
facts of this case are somewhat different, the overriding similarity is that
Amendment 706 did not alter the guidelines range on which James’ sentence was
based.
James organized and operated a large drug organization in Florida, resulting
in his 1991 conviction for conspiracy to possess with intent to distribute cocaine
and crack cocaine in violation of 21 U.S.C. § 846. He was sentenced under the
sentencing guidelines in effect on July 31, 1989. His base offense level under
U.S.S.G. § 2D1.1(a)(3) was determined to be 36 because the conspiracy involved
hundreds of kilograms of powdered cocaine and between 10 and 15 kilograms of
2
In certain situations Amendment 706 may apply even where the defendant was
sentenced under the armed career criminal provisions. The offense level for an armed career
criminal is taken from the greatest of several calculations, including “the offense level
applicable from Chapters Two and Three.” See U.S.S.G. § 4B1.4(b)(1)–(3). Chapter Two of the
Sentencing Guidelines Manual includes the drug quantity table in § 2D1.1(c) that sets forth the
offense levels for quantities of crack cocaine. U.S.S.G. § 2D1.1(c). Thus, for example, if an
offense level of 36 under § 2D1.1(c) was applied at the original sentencing for an armed career
criminal because it produced the highest offense level among the relevant calculations in
§ 4B1.4(b), that offense level played a role in the calculation of the range. In that situation the
new offense level of 34 could mean that the armed career criminal was sentenced to a “range that
has subsequently been lowered” under 18 U.S.C. § 3582(c)(2). In this way, Amendment 706
could apply to the sentence of an armed career criminal.
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crack cocaine.3 It was increased two levels under U.S.S.G. § 2D1.1(b)(1) for
possession of a firearm and another four levels under § 3B1.1(a) because of his
leadership role in the offense. Those increases resulted in an adjusted offense level
of 42. The court found that the appropriate criminal history category was II. An
offense level of 42 and criminal history category of II produced a guidelines range
of 360 months to life. The court sentenced him to life. Amendment 706 changes
none of that.
Amendment 706 does not affect the calculation of James’ base offense level
in a way favorable to him. At his sentencing in 1989 James was held responsible
for 10 to 15 kilograms of crack cocaine, which at that time resulted in a base
offense level of 36. Because of an intervening change in the guidelines, under the
amendment his base offense level now would be 38. U.S.S.G. § 2D1.1(c)(1)
(2007) (providing that 4.5 kilograms or more of crack cocaine receive a base
offense level of 38, the highest possible level in the drug quantity table). The same
is true of the base offense level if it is calculated on the basis of the powder
cocaine. He was held responsible for “hundreds of kilograms” of it. That also
3
The district court did not convert the quantities of two types of drugs into an
equivalency aggregate drug amount. However, the large quantities of each type of drug placed
James well over the threshold quantity necessary for a base offense level of 36, the highest
possible level for drug quantity at the time of sentencing in 1989. See U.S.S.G. § 2D1.1, Drug
Quantity Table (1989).
5
resulted in a base offense level of 36, the highest then available for large quantities
of powder cocaine. Now, the guidelines provide for a base offense level of 38 for
150 or more kilograms of powder cocaine. Id. What this means is that whether
his sentence was based on the crack cocaine or the powder cocaine, under
Amendment 706 the base offense level used to calculate James’ sentence would be
higher than the one used at his 1989 sentencing. The result would be a higher
adjusted offense level and a higher guidelines range.
The provisions of Amendment 706 would not result in a lower base offense
level and guidelines range for James. It follows that James is not entitled to
resentencing under § 3582(c)(2). See Thomas, 2008 WL 4659359; Moore, 541
F.3d at 1328. His arguments for the application of Booker and Kimbrough at
resentencing are academic.
AFFIRMED.
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