Case: 12-11038 Date Filed: 07/31/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11038
Non-Argument Calendar
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D.C. Docket No. 5:92-cr-00082-CAR-CHW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PINKNEY CLOWERS, III,
a.k.a. Boo Boo,
a.k.a. DOG,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Middle District of Georgia
____________________________
(July 31, 2012)
Before TJOFLAT, JORDAN and KRAVITCH, Circuit Judges.
PER CURIAM:
Pinkney Clowers, III, appeals from the district court’s denial of his motion for
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reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). After review of the record
and the parties’ briefs, we affirm.
Mr. Clowers sought a reduction of sentence based on Amendments 505 and
750 to the Sentencing Guidelines, which have been made retroactive. See U.S.S.G.
§ 1B1.10(c). The district court ruled that Mr. Clowers was not entitled to a reduction
because he had received a statutory mandatory sentence of life imprisonment for
engaging in a continuing criminal enterprise (Count 18) in violation of 21 U.S.C. §
848(a). See D.E. 945 (stating reasons for denial of § 3582(c)(2) motion).1 See also
D.E. 690 at 6 (statement of reasons for amended criminal judgment) (adopting
Presentence Investigation Report); Presentence Investigation Report ¶ 163 (indicating
that Mr. Clowers faced a statutory mandatory sentence of life imprisonment on Count
18).
The district court correctly denied Mr. Clower’s motion. A sentence reduction
is “not authorized” if the applicable amendment “does not have the effect of lowering
the defendant’s applicable guideline range,” U.S.S.G. § 1B1.10(a)(2)(b), and here the
statutorily mandated sentence of life imprisonment “effectively displace[d]” the
1
Mr. Clowers says that he never received the district court’s statement of reasons for denial
of his § 3582(c)(2) motion. Assuming that is correct, Mr. Clowers was apprised of the district
court’s rationale in the government’s response brief (which quoted the district court’s language) and
had the opportunity to address that rationale in his reply brief.
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otherwise applicable range for Mr. Clowers under the Sentencing Guidelines and
“bec[a]me[ ] the guideline sentence” for him. See United States v. Williams, 549 F.3d
1337, 1340 (11th Cir. 2008). Because Mr. Clowers was not sentenced based on the
offense levels in U.S.S.G. § 2D1.1, Amendments 505 and 750 did not have the effect
of lowering his statutory mandatory sentence of life imprisonment. See id. at 1340-
41; United States v. Pope, 58 F.3d 1567, 1572 (11th Cir. 1995) (per curiam).
Mr. Clowers argues that he should never have faced a statutory mandatory term
of life imprisonment on Count 18 because the government charged him only under
21 U.S.C. § 848(a) and not 21 U.S.C. § 848(b). As Mr. Clowers sees it, § 848(b) sets
forth a different (and more severe) offense than § 841(a), and the jury therefore was
required to make the necessary factual findings (as to his leadership status and drug
quantity) before he could be subject to a statutory mandatory penalty of life
imprisonment under § 848(b). Although Mr. Clowers’ argument as to § 848(b) is
supported by dicta from a Second Circuit case, see United States v. Torres, 901 F.2d
205, 240 (2d Cir. 1990) (“[S]ection 848(b) requires the jury to find, beyond a
reasonable doubt, elements in addition to those stated in section 848(a) . . . .”), the
Second Circuit ruled after Torres that a district court can make the requisite findings
necessary for a mandatory life sentence under § 848(b) because § 848(a) itself
provides for a maximum sentence of life imprisonment. See, e.g., United States v.
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Rivera, 282 F.3d 74, 76-77 (2d Cir. 2000) (per curiam).2 Torres, therefore, does not
help Mr. Clowers.
More importantly, Mr. Clowers’s motion for reduction of sentence did not
permit the district court to revisit rulings and findings made at the initial sentencing
hearing. As the Supreme Court has held, “proceedings under § 3582(c) do not
implicate the Sixth Amendment right to have essential facts found by a jury beyond
a reasonable doubt,” and “§ 3582(c) “does not authorize a resentencing.” Dillon v.
United States, 130 S. Ct. 2683, 2692, 2694 (2010). Thus, Mr. Clowers was not
entitled to use his motion for reduction of sentence to correct any alleged errors in the
initial sentencing hearing. See United States v. Bravo, 203 F.3d 778, 781 (11th Cir.
2000) (holding that, in a § 3582(c) proceeding, “all original sentencing
determinations remain unchanged with the sole exception of the guideline range that
has been amended since the original sentencing”).
AFFIRMED.
2
We note that other circuits have come to the same conclusion as the Second Circuit in
Rivera. See, e.g., United States v. Avila Vargas, 570 F.3d 1004, 1007 n.2 (8th Cir. 2009); United
States v. Soto-Beniquez, 356 F.3d 1, 44-45 (1st Cir. 2009); United States v. Smith, 223 F.3d 554,
563-66 (7th Cir. 2006).
4