United States v. James H. Baisden , 343 F. App'x 572 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15250 ELEVENTH CIRCUIT
SEPTEMBER 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 97-00003-CR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES H. BAISDEN,
a.k.a. Joe Baisden,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 8, 2009)
Before EDMONDSON, CARNES and WILSON, Circuit Judges.
PER CURIAM:
James H. Baisden, a pro se federal prisoner convicted of a crack cocaine
offense, appeals his resentencing under 18 U.S.C. § 3582(c)(2) and Amendment
7061 to the Sentencing Guidelines. No reversible error has been shown; we affirm.
Baisden’s original guidelines range of 360 months to life imprisonment was
based on an offense level of 38 and a criminal history category of VI. The district
court sentenced Baisden to 360 months. In his section 3582(c)(2) motion, Baisden
requested a sentence reduction based on his post-sentencing rehabilitation and the
18 U.S.C. § 3553(a) sentencing factors. He contended that Booker2 allowed the
district court to resentence him below the amended guidelines range.
The district court, in a form order, reduced Baisden’s base offense level
from 38 to 36. This reduction resulted in an amended range of 324 to 405 months;
and the court resentenced Baisden to 324 months. Baisden filed a motion for
reconsideration, arguing that the court should have lowered his criminal history
category because his prior state convictions had been vacated. The district court
denied reconsideration.
On appeal, Baisden argues that the district court erred in resentencing him
1
Amendment 706 -- which became retroactive on 3 March 2008, U.S.S.G. App. C,
Amend. 713 (Supp. 1 May 2008) -- reduced by two the base offense levels in crack cocaine
sentences calculated pursuant to U.S.S.G. § 2D1.1(c).
2
United States v. Booker, 125 S.Ct. 738 (2005).
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because (1) it failed to consider his prior vacated state convictions when
calculating his amended guidelines range and (2) its order failed to indicate that it
had considered his post-sentencing rehabilitation, the section 3553(a) factors, and
the sentencing disparity between crack and powder cocaine. We review de novo
the district court’s legal conclusions about the scope of its authority in a section
3582(c)(2) proceeding. United States v. James, 548 F.3d 983, 984 (11th Cir.
2008). “Once it is established that [section] 3582 applies, a district court’s
decision to grant or deny a sentence reduction is reviewed only for abuse of
discretion.” Id. at 984 n.1.
Baisden’s challenges to his resentencing all are unavailing. The district
court correctly reduced Baisden’s base offense level from 38 to 36 pursuant to
Amendment 706 based on the 1.5 kilograms of crack cocaine attributed to him.
See U.S.S.G. § 2D1.1(c)(2). About his prior vacated convictions, the district court
was not permitted to recalculate guidelines determinations unaffected by
Amendment 706. See United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000)
(explaining that a sentence reduction under section 3582(c)(2) is not a de novo
resentencing and “all original sentencing determinations remain unchanged with
the sole exception of the guideline range that has been amended since the original
sentencing”). And Amendment 706 had no impact on Baisden’s criminal history
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category.
About consideration of the section 3553(a) factors, the court is required to
consider the factors after calculating the amended guidelines range and determine,
in its discretion, whether to reduce the defendant’s sentence. United States v.
Vautier, 144 F.3d 756, 760 (11th Cir. 1998). But here, even if we assume that the
district court failed to consider the section 3553(a) factors, any error was harmless
because Baisden received the lowest possible sentence he could receive upon
application of Amendment 706. See Fed.R.Crim.P. 52(a) (“[a]ny error . . . that
does not affect substantial rights shall be disregarded”); United States v. Newsome,
998 F.2d 1571, 1579 (11th Cir. 1993) (concluding that a remand was unnecessary
where defendants received the lowest possible terms of imprisonment).
Although Baisden invokes Booker and Kimbrough v. United States, 128
S.Ct. 558 (2007), in support of a sentence below the amended guidelines, we have
made clear that neither Booker nor Kimbrough render a guidelines range advisory
in the context of a section 3582(c)(2) proceeding. See United States v. Melvin,
556 F.3d 1190, 1192-93 (11th Cir. 2009), cert. denied (U.S. May 18, 2009) (No.
08-8664). A district court is bound by the limitations imposed on its discretion by
section 3582(c)(2) and the applicable policy statements by the Sentencing
Commission. Id.; see also U.S.S.G. § 1B1.10(b)(2)(A) (explaining that “the court
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shall not reduce the defendant’s term of imprisonment under [section] 3582(c)(2)
and this policy statement to a term that is less than the minimum of the amended
guideline range”).
AFFIRMED.
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