United States v. Barbara Potts , 296 F. App'x 887 ( 2008 )


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  •                                                               [DO NOT PUBLISH]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
    October 20, 2008
    No. 08-11524                   THOMAS K. KAHN
    Non-Argument Calendar                  CLERK
    ________________________
    D. C. Docket No. 06-80081-CR-DTKH
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    BARBARA POTTS,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (October 20, 2008)
    Before CARNES, BARKETT and HULL, Circuit Judges.
    PER CURIAM:
    Barbara Potts, a federal prisoner, appeals the denial of her pro se motion to
    reduce her sentence, filed pursuant to 
    18 U.S.C. § 3582
    (c)(2). After review, we
    affirm.
    I. BACKGROUND
    In 2007, Potts pled guilty to one count of conspiracy to manufacture at least
    50 grams of crack cocaine base and to possess with intent to distribute and to
    distribute at least 50 grams of crack cocaine and at least 5 kilograms of powder
    cocaine, in violation of 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(a) and 846. At sentencing,
    Potts’s advisory guidelines range was 97 to 121 months’ imprisonment.1 However,
    because Potts’s offense involved over 50 grams of cocaine base, Potts was subject
    to a mandatory minimum ten-year sentence under 
    21 U.S.C. § 841
    (b)(1)(A) and
    the low end of her guideline range was reset to 120 months under U.S.S.G.
    § 5G1.1(c)(2). See U.S.S.G. § 5G1.1(c)(2) (prohibiting a guidelines sentence
    below the statutory mandatory minimum sentence). The government moved
    pursuant to U.S.S.G. § 5K1.1 for a reduction in Potts’s sentence below the
    statutory mandatory minimum based on Potts’s substantial assistance. The district
    court granted the government’s motion on March 30, 2007 and imposed a 60-
    month sentence based on Potts’s substantial assistance.
    1
    The presentence investigation report (“PSI”) calculated Potts’s base offense level of 32,
    pursuant to U.S.S.G. § 2D1.1(c)(4), based on the amount of drugs involved in her offense. After
    adjustments, Potts’s total offense level of 29 and criminal history category of II yielded an
    advisory guidelines range of 97 to 121 months’ imprisonment.
    2
    In February 2008, Potts filed a pro se § 3582 motion to reduce her sentence,
    citing Amendment 706 to the Sentencing Guidelines. Amendment 706 reduced the
    offense levels under U.S.S.G. § 2D1.1 for offenses involving crack cocaine and
    was made retroactive by Amendment 713. See U.S.S.G. app. C, amend 706, 713;
    United States v. Stratton, 
    519 F.3d 1305
    , 1307 (11th Cir. 2008). Under
    Amendment 706, Potts’s base offense level would be reduced by two levels,
    yielding a potential guidelines range of 78 to 97 months’ imprisonment. See
    U.S.S.G. § 2D1.1(c)(5) (Supp. May 1, 2008).2 However, even with Amendment
    706, the low end of Potts’s actual guidelines range still would be 120 months’
    imprisonment because of the ten-year statutory mandatory minimum. See
    U.S.S.G. § 5G1.1(b).
    The district court denied Potts’s § 3582 motion. The district court
    acknowledged that Amendment 706, made retroactive by Amendment 713,
    reduced the base offense level for crack cocaine offenses. The district court
    concluded, however, that Potts was ineligible for a sentence reduction because
    Potts’s advisory guidelines range was derived not from the drug quantity table in
    § 2D1.1(c), but from the mandatory minimum sentence of ten years’ imprisonment.
    Thus, Amendments 706 and 713 did “not affect the statutory minimum that
    2
    Under the amended drug quantity tables, Potts’s base offense level would be 30, rather
    than 32.
    3
    ultimately determined [her] sentence.”
    Potts filed this appeal.3
    II. DISCUSSION
    Section 3582(c)(2) prohibits a court from modifying a term of imprisonment
    after it has been imposed except “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).” 
    18 U.S.C. § 3582
    (c)(2); see also U.S.S.G. § 1B1.10(a)(1) (Supp. May
    1, 2008). However, a reduction is not authorized by § 3582(c)(2) if “an
    amendment listed in subsection (c) does not have the effect of lowering the
    defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B) (May 1,
    2008).4
    This Court recently explained that “a reduction under § 3582(c)(2) is not
    authorized where ‘the amendment . . . is applicable to the defendant but the
    amendment does not have the effect of lowering the defendant’s applicable
    3
    As a threshold matter we note that, although Potts filed her § 3582(c)(2) motion before
    March 3, 2008, the date Amendment 713 took effect and made Amendment 706 retroactively
    applicable, both the district court and this Court have jurisdiction over Potts’s § 3582(c)(2)
    motion because the district court ruled on the motion after March 3, 2008. See United States v.
    Moore, ___ F.3d ___, Nos. 08-11230, 08-11341, 08-11484, 08-11526, & 08-13132, 
    2008 WL 4093400
    , at *2 (11th Cir. Sept. 5, 2008).
    4
    We review a district court’s denial of a defendant’s § 3582(c)(2) motion for an abuse of
    discretion. United States v. Brown, 
    332 F.3d 1341
    , 1343 (11th Cir. 2003).
    4
    guideline range because of the operation of another guideline or statutory provision
    (e.g. a statutory mandatory minimum term of imprisonment).’” Moore, 
    2008 WL 4093400
    , at *4 (quoting U.S.S.G. § 1B1.10, cmt. n. 1(A) (Supp. May 1, 2008))
    (omission in original). In Moore, this Court concluded that although Amendment
    706 would have reduced the defendants’ base offense levels calculated under the
    drug quantity table in U.S.S.G. § 2D1.1, “it does not have the effect of lowering
    their applicable guideline ranges because of the application of the career offender
    guideline.” Id. at *4.
    Under the particular circumstances of Potts’s case, we cannot say the district
    court abused its discretion in denying Potts’s § 3582(c)(2) motion. There is no
    dispute that Amendment 706 is applicable to Potts and that it reduced her base
    offense level. However, due to the operation of the applicable statutory mandatory
    minimum ten-year sentence, Amendment 706 did not give the district court any
    more discretion to impose a lower sentence. In other words, even after
    Amendment 706, Potts’s guidelines sentencing range could not dip below 120
    months absent the substantial assistance § 5K1.1 departure. See U.S.S.G.
    § 5G1.1(b); see also § 1B1.10(b)(2)(A)-(B) & cmt. n.3 (Supp. May 1, 2008)
    (providing that a sentencing court shall not reduce a defendant’s sentence below
    the minimum of the amended guidelines range). As the district court
    5
    acknowledged in ruling on Potts’s § 3582(c)(2) motion, Potts’ guidelines
    sentencing range was driven by her statutory mandatory minimum.
    The fact that the district court granted the government’s § 5K1.1 downward
    departure motion also does not change the outcome. In Moore, both Moore and
    Lawton also received § 5K downward departures. The Moore court pointed out
    that the sentencing court did not use the offense level to calculate the guidelines
    range but used the career offender designation to determine the guidelines range.
    Moore, 
    2008 WL 4093400
    , at *5-6. Similarly, here the low end of Potts’s
    guidelines range was driven by the statutory mandatory minimum and not her
    offense level. Thus, the district court did not abuse its discretion in denying Potts’s
    § 3582(c)(2) motion.
    AFFIRMED.
    6
    

Document Info

Docket Number: 08-11524

Citation Numbers: 296 F. App'x 887

Judges: Barkett, Carnes, Hull, Per Curiam

Filed Date: 10/20/2008

Precedential Status: Non-Precedential

Modified Date: 8/2/2023