United States v. Tracy Topaz Turner , 322 F. App'x 880 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12300 APRIL 10, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 95-06031-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRACY TOPAZ TURNER,
a.k.a. Tracy Thomas,
a.k.a. Tony Brow,
a.k.a. Tony H. Brown,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 10, 2009)
Before BIRCH, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Tracy Turner, proceeding pro se, appeals the district court’s denial of his
motion for modification of sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on
Amendments 706 and 711 to the Sentencing Guidelines, and the denial of his
motion for reconsideration. Turner acknowledges that he was sentenced as a career
offender but argues that he is nevertheless eligible for a reduction because U.S.S.G.
§ 2D1.1 should serve at the starting point for the reduction. He also appears to
argue that the court should have granted a sentence below any amended range. For
the reasons set forth below, we affirm.
I.
A jury convicted Turner of one count of conspiracy to possess with intent to
distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and two
counts of possession with intent to distribute crack cocaine, in violation of
§ 841(a)(1). A probation officer determined that Turner qualified as a career
offender and set his base offense level at 37 and criminal history category at VI,
pursuant to U.S.S.G. § 4B1.1. Turner’s guideline imprisonment range was 360
months to life. The district court imposed concurrent terms of 360 months’
imprisonment. On March 4, 2008, Turner submitted the instant pro se § 3582(c)(2)
motion, asserting that Amendment 706 to the Guidelines altered his base offense
level. The government responded that Turner was not eligible for a reduction
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because he was sentenced pursuant to § 4B1.1, rather than § 2D1.1. The district
court denied the motion. Turner submitted a motion for reconsideration, which the
district court also denied.
II.
We review de novo “the district court’s legal conclusions regarding the
scope of its authority under the [Guidelines].” United States v. Moore, 541 F.3d
1323 (11th Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct. 965
(2009), and cert. denied, (U.S. Mar. 9, 2009) (No. 08-8554). Pursuant to
§ 3582(c)(2), a district court may reduce an already-incarcerated defendant’s
sentence if the sentence was determined using a guideline imprisonment range that
retroactive amendments to the Guidelines have reduced, and if such a reduction
would be consistent with the policy statements issued by the Sentencing
Commission, which are contained in U.S.S.G. § 1B1.10. 18 U.S.C. § 3582(c).
The commentary to § 1B1.10 instructs that a defendant is not eligible for a
§ 3582(c)(2) reduction “if the amendment [in question] does not have the effect of
lowering the defendant’s applicable guideline range because of the operation of
another guideline or statutory provision (e.g., a statutory mandatory minimum term
of imprisonment.)” U.S.S.G. § 1B1.10, comment. (n.1(A)). Recently, in Moore,
541 F.3d at 1328, we applied this commentary and held that Amendment 706 does
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not alter the guideline imprisonment range of a defendant convicted of crack
cocaine offenses if that defendant was sentenced as a career offender, pursuant to
§ 4B1.1. We reasoned that, in that case, the defendant’s “base offense level[]
under § 2D1.1 played no role in the calculation of [his guideline imprisonment
range],” such that Amendment 706’s effect on the defendant’s base offense level
under § 2D1.1 would not affect the guideline imprisonment range pursuant to
which he was sentenced. Id. at 1327.
III.
The district court did not err in denying Turner’s § 3582(c)(2) motion. See
Moore, 541 F.3d at 1326. Because Turner was sentenced according to the
guideline imprisonment range calculated using § 4B1.1, rather than § 2D1.1,
Amendment 706 did not affect his guideline imprisonment range. See Moore, 541
F.3d at 1327-28; U.S.S.G. § 1B1.10, comment. (n.1(A)). Because Turner,
therefore, was not eligible for a reduction, whether or not the district court should
have considered United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160
L. Ed. 2d 621 (2005) at re-sentencing is irrelevant. See also United States v.
Melvin, No. 08-13497 (11th Cir. Feb. 3, 2009) (holding that Booker is inapplicable
at re-sentencing under § 3582(c)(2)), pet. for cert. filed, (U.S. Feb. 10, 2009) (No.
08-8664). Accordingly, we affirm.
AFFIRMED.
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