Case: 12-13790 Date Filed: 01/08/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13790
Non-Argument Calendar
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D.C. Docket No. 1:08-cr-00004-MP-AK-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE DELANEY THOMPSON,
a.k.a. Yellow,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(January 8, 2013)
Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
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Andre Thompson, proceeding pro se, appeals the district court’s denial of his
motion to reduce his 180-month sentence under 18 U.S.C. § 3582(c)(2).
Thompson argues that § 3582(c)(2), an amendment to the Sentencing Guidelines
that reduced the base offense levels for certain crack-cocaine crimes, gives the
district court the authority to reduce his sentence because he was convicted of a
crack-cocaine offense. Because Thompson was subject to a mandatory-minimum
sentence and is ineligible for § 3582(c)(2) relief, we affirm the district court’s
denial of his motion for a sentence reduction under this provision.1
I.
“We review de novo the district court’s legal conclusions regarding the
scope of its authority under the Sentencing Guidelines in a § 3582(c)(2)
proceeding.” United States v. Douglas, 576 F.3d 1216, 1218 n.1 (11th Cir. 2009).
We review the district court’s decision not to reduce a sentence based upon
§ 3582(c)(2) for abuse of discretion, and its findings of fact for clear error. United
States v. Davis, 587 F.3d 1300, 1303 (11th Cir. 2009).
1
The government argues that Thompson’s § 3582(c)(2) appeal is untimely because his notice of
appeal was not filed within fourteen days of the district court’s denial of his motion for a
sentence reduction. See Fed. R. App. P. 4(b)(1)(A); United States v. Fair, 326 F.3d 1317, 1318
(11th Cir. 2003) (holding that the rules governing criminal cases apply to § 3582(c)(2)
proceedings). Although the fourteen-day deadline to file a notice of appeal is not jurisdictional,
these “deadlines provide rules for processing claims that assure relief to a party properly raising
them.” United States v. Lopez, 562 F.3d 1309, 1311–13 (11th Cir. 2009) (quotation marks
omitted). Here, the district court denied Thompson’s motion on March 7, 2012 and Thompson
waited until July 10, 2012 to file his notice of appeal. While we reject Thompson’s arguments
on the merits, we also agree with the government that Thompson’s appeal is untimely under Rule
4(b).
2
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Title 18, section 3582 of the United States Code provides that a district court
may reduce the sentence of a “defendant who has been 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) (2002). However, “[t]he 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 was sentenced on the basis of a
mandatory minimum.” United States v. Mills, 613 F.3d 1070, 1078 (11th Cir.
2010). We have explained that this “makes sense” because “an amendment that
alters the initial calculation of a guidelines range is not to be applied in a case
where the difference in the initial calculation would have made no difference
because a mandatory minimum would have trumped the initial calculation and
dictated the final guidelines range anyway.” United States v. Glover, 686 F.3d
1203, 1206 (11th Cir. 2012). Here, as indicated in the presentence report,
Thompson was subject to a mandatory-minimum sentence. As a result, Thompson
is not eligible for a § 3582 sentence reduction.2
2
Thompson cites to Freeman v. United States, 131 S. Ct. 2685 (2011), in arguing that the district
court was authorized to reduce his sentence. In Freeman, a plurality of the Supreme Court held
that a defendant who entered a plea agreement with an agreed-upon sentence or sentencing range
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) was eligible for relief under §
3582(c)(2). Id. at 2695. However, Thompson did not enter into such an agreement. Instead, his
plea agreement indicated “that the sentence to be imposed is left solely to the discretion of the
District Court.” Thus, the holding of Freeman does not apply to Thompson.
3
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For this reason, we affirm the district court’s denial of Thompson’s motion
for a sentence reduction.
AFFIRMED.
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