United States v. Warren Levell Jackson

Case: 12-10030 Date Filed: 08/15/2012 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 12-10030
Non-Argument Calendar
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D.C. Docket No. 2:99-cr-14021-DMM-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

versus

WARREN LAVELL JACKSON,

llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(August 15, 2012)

Before CARNES, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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Warren Lavell Jackson, a federal prisoner proceeding pro se, appeals the

district court’s denial of his request for a sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2). On appeal, Jackson argues the district court erred by failing to

reduce his sentence pursuant to Amendment 750 and the Fair Sentencing Act of

2010 (FSA).1 He also argues the district court had authority to vacate his life

sentence because the Government’s 21 U.S.C. § 851 notice failed to list

constitutionally valid convictions.

We review de novo the district court’s legal conclusions regarding the scope

of its authority under 18 U.S.C. § 3582(c)(2). United States v. James, 548 F.3d

983, 984 (11th Cir. 2008). Pursuant to § 3582(c)(2), a defendant whose

“sentencing range . . . has subsequently been lowered by the Sentencing

Commission” may move the district court to reduce his sentence. 18 U.S.C.

§ 3582(c)(2). Any reduction must be “consistent with applicable policy statements

issued by the Sentencing Commission.” Id. The Sentencing Commission’s policy

statement explains that “[a] reduction in the defendant’s term of imprisonment is

not consistent with th[e] policy statement and therefore is not authorized under 18

U.S.C. § 3582(c)(2) if . . . an amendment . . . does not have the effect of lowering

1
Amendment 750, effective November 1, 2011, made permanent an amendment lowering
the base offense levels for particular crack cocaine quantities in U.S.S.G. § 2D1.1(c).

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the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B) (Nov.

2011); see also id. § 1B1.10 cmt. n.1(A) (providing that a reduction in a

defendant’s term of imprisonment is not authorized under 18 U.S.C. 3582(c)(2) if

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)”).

Here, the district court determined it lacked authority to revise Jackson’s

sentence under § 3582 because Jackson was subject to a mandatory minimum term

of life imprisonment under 21 U.S.C. §§ 841(b)(1)(A) based on his “prior

convictions for a felony drug offense.” Because Jackson’s statutory minimum

sentence was greater than his otherwise applicable guideline range, the statutory

mandatory minimum of life imprisonment became his guideline range. See

U.S.S.G. § 5G1.1(b). Thus, Jackson’s guideline range of life was unaffected by

Amendment 750, such that the district court did not err in denying his § 3582(c)(2)

motion. See United States v. Glover, 11th Cir. 2012, __ F.3d __ (No. 12-10580,

July 11, 2012) (“The law is clear that a sentencing court lacks jurisdiction to

consider a § 3582(c)(2) motion, even when an amendment would lower the

defendant’s otherwise-applicable Guidelines sentencing range, when the defendant

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was sentenced on the basis of a mandatory minimum.”) (quotations and alteration

omitted).2

Moreover, Jackson’s arguments regarding the deficiencies in his § 851

information are outside the scope of a § 3582(c)(2) proceeding. 18 U.S.C.

§ 3582(c)(2) (limiting proceedings under this statute to cases where a retroactive

amendment affects the applicable guideline range); see also United States v.

Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (noting that a proceeding under

§ 3582(c)(2) does not constitute a full resentencing, and the district court must

maintain all original sentencing determinations with the sole exception of applying

the relevant amended guideline range). Accordingly, we affirm.3

2
Jackson also filed supplemental authority contending that Dorsey v. United States, 132
S. Ct. 2321, 2329 (2012), renders the changes under the FSA applicable to his resentencing under
§ 3582(c)(2). Dorsey did not decide whether the FSA applies to a defendant, like Jackson, who
was sentenced before the FSA went into effect and who files a § 3582(c)(2) motion after the
FSA’s effective date. See United States v. Liberse, 11th Cir. 2012, __F.3d__ (No. 12-10243,
July 30, 2012). We note that Glover is a post-Dorsey case. Regardless, because Jackson was
responsible for 287.2 grams of cocaine base, 21 U.S.C. §§ 841(b)(1)(A) and 851 would still
subject Jackson to a mandatory minimum life term of imprisonment because his offense involved
at least 280 grams of cocaine base. While Jackson contends he was responsible for a lower
amount, he submitted no evidence of this amount, and did not object to the portion of the PSI
holding him responsible for 287.2 grams of cocaine base.
3
Although Jackson contends the district court has authority to reduce his sentence in
light of Freeman v. United States, 131 S. Ct. 2685 (2011), we recently rejected this argument
where a defendant was sentenced as a career offender, such that his guideline range was not
lowered by Amendment 750. See United States v. Lawson, 11th Cir. 2012, __F.3d__ (No. 11-
15912, July 13, 2012). Likewise, Freeman does not apply here, where Jackson was sentenced
based on a statutory minimum.

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AFFIRMED.

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