[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13497 ELEVENTH CIRCUIT
FEB 03, 2009
________________________
THOMAS K. KAHN
CLERK
D.C. Docket No. 04-60192 CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
EDWARD MELVIN,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 3, 2009)
Before TJOFLAT, BLACK and COX, Circuit Judges.
PER CURIAM:
We decide in this appeal whether United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (2005), and Kimbrough v. United States, __ U.S. __, 128 S. Ct. 558 (2007),
prohibit Congress or the Sentencing Commission from limiting the discretion of a
district court in reducing a sentence under 18 U.S.C. § 3582(c)(2). Concluding that
Booker and Kimbrough do not apply to § 3582(c)(2) proceedings, we hold that a
district court is bound by the limitations on its discretion imposed by § 3582(c)(2)
and the applicable policy statements by the Sentencing Commission.
I. BACKGROUND
In 2004, Edward Melvin pleaded guilty to three counts charging distribution
and possession with intent to distribute crack cocaine within 1,000 feet of a
playground, in violation of 21 U.S.C. §§ 841(a)(1) and 860. Melvin’s last sentencing
was in September of 2006, following prior appeals that resulted in remands for
resentencing.
Under the Sentencing Guidelines, Melvin’s total offense level was 25 and his
criminal history category was V, which yielded a sentencing guideline range of 100
to 125 months’ imprisonment. The district court, mindful that the guidelines were
merely advisory under Booker, sentenced Melvin to 100 months’ imprisonment on
each count, to run concurrently. On August 15, 2007, these sentences were affirmed
on direct appeal. United States v. Melvin, 241 F. App’x 692, 697 (11th Cir. 2007).
On November 1, 2007, the United States Sentencing Commission promulgated
Amendment 706 (later amended by Amendment 711) to the Sentencing Guidelines,
which reduced the base offense level for crack cocaine offenses two levels.
2
Amendment 706, as amended by Amendment 711, is retroactive. U.S. Sentencing
Guidelines Manual § 1B1.10(c) (2008).
On March 3, 2008, Melvin filed a motion to reduce his sentences under 18
U.S.C. § 3582(c)(2), arguing that his offense level under the amended guidelines was
now 23, with a sentencing range of 84 to 105 months’ imprisonment. Melvin asked
the district court for a reduction in his sentences that would reflect the new lower
guideline range. Melvin also asked the district court for reduced sentences that were
even lower than the amended guideline range, arguing that Booker and Kimbrough
rendered all guidelines advisory only, even in a § 3582(c)(2) proceeding.
The district court agreed with Melvin, and reduced his sentences to 75 months’
imprisonment on each count, with the sentences to run concurrently, even though the
applicable guideline range after Amendment 706 was 84 to 105 months. The
Government appeals.
II. ISSUES ON APPEAL AND CONTENTIONS OF THE PARTIES
The issue on appeal is whether Booker and Kimbrough preclude Congress and
the Sentencing Commission from placing any limitation on the extent to which a
sentence can be reduced under 18 U.S.C. § 3582(c)(2).
The Government contends that Booker and Kimbrough do not apply to
reductions in sentences made pursuant to § 3582(c)(2). Melvin responds that any
3
limitation Congress and the Sentencing Commission place upon a sentence reduction
under § 3582(c)(2) is equivalent to a mandatory sentencing guideline, which Booker
and Kimbrough prohibit. Additionally, Melvin argues that Kimbrough, independently
of Booker, renders all crack cocaine guidelines purely advisory, regardless of the
context in which they are applied.
III. STANDARD OF REVIEW
We review de novo the district court’s determination of the scope of its
authority to reduce a sentence under 18 U.S.C. § 3582. United States v. White, 305
F.3d 1264, 1267 (11th Cir. 2002).
IV. DISCUSSION
The Government argues that the district court erred in not following the clear
language of 18 U.S.C. § 3582(c)(2), which precludes reduction of a sentence in a
manner inconsistent with any applicable policy statements issued by the Sentencing
Commission. The statute provides:
The court may not modify a term of imprisonment once it has been
imposed except that--
***
(2) in the case 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
pursuant to 28 U.S.C. 994(o), upon motion of the
4
defendant or the Director of the Bureau of Prisons, or on its
own motion, the court may reduce the term of
imprisonment, after considering the factors set forth in
section 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) (emphasis added). The policy statement generally applicable to
§ 3582(c)(2) proceedings first tells the district court how to calculate a new
sentencing guideline range:
In determining whether, and to what extent, a reduction in the
defendant’s term of imprisonment under 18 U.S.C. 3582(c)(2) and this
policy statement is warranted, the court shall determine the amended
guideline range that would have been applicable to the defendant if the
amendment(s) to the guidelines listed in subsection (c) had been in
effect at the time the defendant was sentenced. In making such
determination, the court shall substitute only the amendments listed in
subsection (c) for the corresponding guideline provisions that were
applied when the defendant was sentenced and shall leave all other
guideline application decisions unaffected.
U.S. Sentencing Guidelines Manual § 1B1.10(b)(1) (2008). The policy statement
goes on to instruct the district court not to reduce a sentence below the new guideline
range: “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 guidelines range determined under [§ 1B1.10(b)(1)].” Id. at §
1B1.10(b)(2)(A). Following the policy statement, the amended guideline range in
this case is 84 to 105 months’ imprisonment, and therefore the policy statement
5
prohibits the reduction of Melvin’s sentences to a term of imprisonment less than 84
months.
The Government argues, therefore, that the district court should not have
reduced Melvin’s sentences below 84 months, the lowest term of imprisonment under
the amended guidelines. The Government urges us to vacate the district court’s
reduction of Melvin’s sentences to 75 months. Melvin responds that, while it is true
that the amended guidelines provide for sentences of no less than 84 months, these
guidelines, even in a proceeding under § 3582(c)(2), are merely advisory after the
Supreme Court decisions in Booker and Kimbrough. He argues that the policy
statement’s language, which forbids the reduction of the sentence to a term of
imprisonment less than the amended guidelines provide, creates a mandatory
sentencing guideline that is impermissible after Booker and Kimbrough.
Four other circuits have directly addressed this issue; three of them have held
that Booker and Kimbrough do not apply to § 3582(c)(2) motions. United States v.
Starks, __ F.3d __, No. 08-2590, 2009 WL 66115 (8th Cir. Jan. 13, 2009); United
States v. Dunphy, __ F.3d __, No. 08-6919, 2009 WL 19139 (4th Cir. Jan 5, 2009);
United States v. Rhodes, 549 F.3d 833 (10th Cir. 2008). Among the circuits, only the
Ninth Circuit has held that Booker prohibits any limitation on a district court’s
6
discretion in reducing a sentence under § 3582(c)(2). United States v. Hicks, 472
F.3d 1167 (9th Cir. 2007).
We agree with those circuits that have held that Booker and Kimbrough do not
prohibit the limitations on a judge’s discretion in reducing a sentence imposed by §
3582(c)(2) and the applicable policy statement by the Sentencing Commission.
First, we agree that, whereas Booker clearly applies to original sentencing
proceedings, it does not address motions to reduce a sentence under § 3582(c)(2).
Starks, 2009 WL 66115, at *2; Dunphy, 2009 WL 19139, at *4; Rhodes, 549 F.3d at
839-840. A proceeding under § 3582(c)(2) is not a full resentencing hearing. United
States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2001). Indeed, a defendant’s sentence
cannot be increased under § 3582(c)(2), and thus none of the concerns in Booker
about a judge increasing a defendant’s sentence based on facts not found by a jury are
present in a proceeding under § 3582(c)(2). See Starks, 2009 WL 66115, at *3
(holding that narrow scope of § 3582(c)(2) proceeding distinguishes it from
sentencing proceedings at issue in Booker); Dunphy, 2009 WL 19139, at *4 (same);
Rhodes, 549 F.3d at 839-40 (same).
Second, Booker excised all the statutory provisions of the Sentencing Reform
Act of 1984 which provided for the kind of mandatory sentencing guidelines Booker
prohibited. It is significant, therefore, that Booker did not excise § 3582(c)(2). To
7
remedy the constitutional defect it saw in the application of the mandatory guidelines,
the Court excised 18 U.S.C. § 3553(b) and 18 U.S.C. § 3742(e), and then declared,
“With these two sections excised . . . , the remainder of the [Sentencing Reform] Act
[of 1984] satisfies the Court’s constitutional requirements.” Booker, 543 U.S. at 259,
125 S. Ct. at 764. The Booker Court’s decision not to excise § 3582(c)(2), even
though it only allows a district court to reduce a prisoner’s sentence if such a
reduction would be consistent with applicable policy statements issued by the
Sentencing Commission, is strong evidence that § 3582(c)(2) does not violate the
holding of Booker. See Starks, 2009 WL 66115, at *2 (discussing Booker Court’s
decision to not excise § 3582(c)(2)); Dunphy, 2009 WL 19139, at *4 (same). Indeed,
we previously have said that “Booker is inapplicable to § 3582(c)(2) motions.”1
United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005).
Even if we were to construe Booker as applying to § 3582(c)(2) proceedings,
there is no mandatory sentencing guideline that would run afoul of Booker. As the
Fourth Circuit noted in Dunphy, there are no mandatory guidelines under §
3582(c)(2) since a court is not required to reduce a movant’s sentence. 2009 WL
19139, at *4; see also United States v. Speights, 561 F. Supp.2d 1277, 1279 (S.D.
1
In Moreno, we addressed whether Booker alone, absent a retroactive amendment to the
guidelines, was sufficient to permit a defendant to seek a sentence reduction under § 3582(c)(2). We
held that it was not.
8
Ala. 2008) (discussing discretionary nature of decision to even reduce sentence at all
under § 3582(c)(2)).
Finally, we disagree with Melvin that Kimbrough could apply here even though
Booker does not. The Kimbrough Court explicitly stated that, “We granted certiorari
. . . to determine whether the crack/powder disparity adopted in the United States
Sentencing Guidelines has been rendered ‘advisory’ by our decision in Booker.” __
U.S. __, 128 S. Ct. at 565-66 (2007). The Court addressed the issue in the context of
an original sentencing proceeding under 18 U.S.C. § 3553, and neither mentioned nor
addressed any proceeding under § 3582(c)(2). Id. at __, 128 S. Ct. at 564-65.
Kimbrough, therefore, does not control because it addresses an original sentencing
proceeding under an advisory guideline system.
V. CONCLUSION
The district court was only permitted under § 3582(c)(2) to reduce Melvin’s
sentences consistent with the applicable policy statements of the Sentencing
Commission. The applicable policy statement prohibits the district court’s reduction
of Melvin’s sentences to a term of imprisonment of less than 84 months. The district
court erred in relying on Booker and Kimbrough to reduce Melvin’s sentences to 75
months’ imprisonment. Therefore, we VACATE the district court’s order reducing
9
the custody sentence and REMAND with instructions to impose a custody sentence
of not less than 84 months.
VACATED AND REMANDED WITH INSTRUCTIONS.
10