United States v. Ryan D. Moore , 321 F. App'x 901 ( 2009 )


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  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 08-14171                  MARCH 25, 2009
    Non-Argument Calendar            THOMAS K. KAHN
    CLERK
    ________________________
    D. C. Docket No. 04-00249-CR-T-26-MSS
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RYAN D. MOORE,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    _________________________
    (March 25, 2009)
    Before BIRCH, HULL and PRYOR, Circuit Judges.
    PER CURIAM:
    Ryan Moore appeals his sentence of imprisonment for 135 months imposed
    after the district court reduced Moore’s original sentence of imprisonment of 180
    months for his drug crimes. 
    18 U.S.C. § 3582
    (c)(2). Moore argues that his
    sentence is unreasonable. We affirm.
    I. BACKGROUND
    Moore pleaded guilty in 2004 to conspiracy to possess and possession with
    intent to distribute 50 grams or more of cocaine base, 
    18 U.S.C. § 2
    ; 
    21 U.S.C. §§ 841
    (a), (b)(1)(A)(i) & (iii), 846, and possession with intent to distribute a quantity
    of cocaine, 
    18 U.S.C. § 2
    ; 
    21 U.S.C. § 841
    (a)(1), (b)(1)(C). The presentence
    investigation report provided a base offense level of 36, United States Sentencing
    Guidelines § 2D1.1(c)(2) (Nov. 2004), increased it by two levels for possession of
    a firearm, id. § 2D1.1(b)(1), and reduced it by three levels for Moore’s acceptance
    of responsibility, id. § 3E1.1. With a total offense level of 35 and a criminal
    history of V, the report listed a guideline range between 262 and 327 months of
    imprisonment. Moore’s cocaine base offenses required a minimum sentence of ten
    years of imprisonment, while his cocaine offense had a statutory maximum
    sentence of twenty years of imprisonment.
    At the sentencing hearing, the district court stated that Moore “fac[ed]
    almost the next 20 years of [his] young life in a Federal penitentiary[,] . . . [b]ut . . .
    [was] also required to nevertheless take into account the factors in Title 18 of the
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    United States Code, section 3553(a).” The court considered evidence that Moore’s
    mother was addicted to crack cocaine when Moore was born, granted Moore a
    downward variance, and sentenced him below the guidelines to three concurrent
    terms of 180 months of imprisonment.
    In 2008, Moore moved to reduce his sentence. 
    18 U.S.C. § 3582
    (c)(2).
    Moore argued that he was entitled to a two level reduction of his base offense
    level, which provided a guideline range between 188 and 235 months of
    imprisonment. See U.S.S.G. App. C, Amend. 706 (Supp. Nov. 1, 2007). Moore
    requested that the district court sentence him to 122 months of imprisonment.
    The district court appointed a public defender to represent Moore, instructed
    the United States Probation Office to provide a supplemental presentence
    investigation report, and ordered the parties to respond to the supplemental report.
    The government responded that Amendment 706 applied to Moore and stated that
    the district court could vary downward from the amended guideline range, but
    argued that Moore should receive at least a sentence of 142 months of
    imprisonment. Moore argued for a maximum sentence of 135 months of
    imprisonment, based on his background and his conduct while in prison, and the
    disparity between sentencing ranges for crack and powder cocaine discussed in
    Kimbrough v. United States, 
    128 S. Ct. 558
     (2007).
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    The district court granted Moore’s motion and reduced his sentence to 135
    months of imprisonment. The court determined that Moore was “eligible . . . for a
    reduction in his base offense level pursuant to Amendments 706 and 711 of the
    United States Sentencing Guidelines.”
    II. STANDARDS OF REVIEW
    “In a proceeding to modify a sentence under 
    18 U.S.C. § 3582
    (c)(2), we
    review de novo the district court’s legal conclusions regarding the scope of its
    authority under the Sentencing Guidelines.” United States v. White, 
    305 F.3d 1264
    , 1267 (11th Cir. 2002) (citing United States v. Pelaez, 
    196 F.3d 1203
    , 1205
    (11th Cir. 1999)). We review the reasonableness of a sentence for an abuse of
    discretion. Gall v. United States, 
    128 S. Ct. 586
    , 597 (2007).
    III. DISCUSSION
    Moore challenges his reduced sentence on two grounds. First, Moore argues
    that the district court failed to consider the decision of the Supreme Court in
    Kimbrough v. United States, 
    128 S. Ct. 558
     (2007), when the district court
    recalculated his sentence. Second, Moore argues that the district court failed to
    consider his post-sentencing conduct. These arguments fail.
    Moore’s argument about the effect of Kimbrough is foreclosed by our
    decision in United States v. Melvin, No. 08-13497 (11th Cir. Feb. 3, 2009). We
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    explained that United States v. Booker, 
    543 U.S. 220
    , 
    125 S. Ct. 738
     (2005),
    excised only those provisions applicable to an original sentencing hearing and did
    not address the separate provision that allows a district court to reduce a sentence
    based on retroactive amendments of the Guidelines, 
    18 U.S.C. § 3582
    (c). Melvin,
    No. 08-13497, slip op. at 7–8. Kimbrough, which applied Booker, likewise did not
    affect requests to modify a sentence. Melvin, slip op. at 9. The district court could
    not rely on Kimbrough to reduce Moore’s sentence.
    The district court was not required to grant Moore a greater reduction of
    sentence. A district court may reduce a term of imprisonment when the guideline
    range is lowered by the Sentencing Commission. 
    18 U.S.C. § 3582
    (c). After the
    district court recalculates the sentence under the amended guidelines, it must
    decide, in the light of the statutory sentencing factors, 
    18 U.S.C. § 3553
    (a),
    “whether, in its discretion, it will elect to impose the newly calculated sentence
    under the amended guidelines or retain the original sentence.” United States v.
    Bravo, 
    203 F.3d 778
    , 780–81 (11th Cir. 2000); see also U.S.S.G. § 1B1.10 cmt.
    n.1(B). Any reduction must be “consistent with applicable policy statements
    issued by the Sentencing Commission,” 
    18 U.S.C. § 3582
    (c)(2), which preclude a
    “full resentencing of the defendant.” U.S.S.G. § 1B1.10(a)(3); see Bravo, 
    203 F.3d at 781
    . Section 1B1.10 counsels against, but does not prohibit, the reduction
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    of a non-guideline sentence: “if the original term of imprisonment constituted a
    non-guideline sentence determined pursuant to 
    18 U.S.C. § 3553
    (a) and United
    States v. Booker, 
    543 U.S. 220
     (2005), a further reduction generally would not be
    appropriate.”
    Moore’s sentence is reasonable. The district court reviewed the
    supplemental presentence investigation report and Moore’s response to the report,
    which detailed his post-sentencing conduct. After due consideration of those
    arguments, the district court reduced Moore’s sentence to 135 months of
    imprisonment. See 
    28 U.S.C. § 3553
    (a); Gall, 
    128 S. Ct. at 597
    .
    IV. CONCLUSION
    Moore’s reduced sentence is AFFIRMED.
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