United States v. Keith Anderson , 330 F. App'x 773 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13952 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 12, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 99-00507-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH ANDERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 12, 2009)
Before BIRCH, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Keith Anderson, a federal prisoner convicted of a crack cocaine offense,
appeals from the district court’s denial of his counseled 18 U.S.C. § 3582(c)(2)
motion for reduction of sentence based on Amendment 706 to U.S.S.G. § 2D1.1,
which lowered the base offense levels applicable to crack cocaine offenses. On
appeal, Anderson argues that 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, __ S. Ct. __ (U.S. Mar. 9, 2009) (No. 08-8554), was wrongly decided.
After careful review, we affirm.
A district court’s decision to grant or deny a sentence reduction pursuant to a
motion filed under 18 U.S.C. § 3582 is reviewed for abuse of discretion. United
States v. James, 548 F.3d 983, 984 n.1 (11th Cir. 2008). However, where, as here,
the issue presented involves a legal interpretation, our review is de novo. United
States v. Pringle, 350 F.3d 1172, 1178 (11th Cir. 2003).
A district court may modify a term of imprisonment in the case of a
defendant who was sentenced based on a sentencing range that subsequently has
been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Any
reduction, however, must be “consistent with applicable policy statements issued
by the Sentencing Commission.” Id. A reduction of a term of imprisonment is not
“consistent with applicable policy statements issued by the Sentencing
Commission” -- and is, therefore, not authorized under § 3582(c)(2) -- if the
retroactive amendment does not have the effect of lowering the defendant’s
applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B).
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A defendant whose original sentence ultimately was based on something
other than the offense level calculation under § 2D1.1, such as the career-offender
guideline section of U.S.S.G. § 4B1.1, is precluded from receiving a sentence
reduction because the amendment does not have the effect of lowering the
applicable guideline range. See Moore, 541 F.3d at 1327-28; see also U.S.S.G.
§ 1B1.10, comment. (n.1(A)) (stating 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
guideline range because of the operation of another guideline or statutory
provision”). Where the base offense levels under § 2D1.1 “play[] no role” in the
calculation of the guideline range, the defendant is not entitled to § 3582 relief
under Amendment 706. Moore, 541 F.3d at 1327.
Here, just as in Moore, Anderson was not sentenced under the base offense
level in § 2D1.1, and, therefore, he was ineligible for § 3582 relief under
Amendment 706. Anderson’s arguments that we decided Moore incorrectly and
should modify it are meritless, and we are bound to follow our prior binding
precedent unless and until it is overruled by this Court sitting en banc or by the
Supreme Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.
2008). Additionally, district courts are not required to hold de novo sentencing
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hearings for all career offenders based on Amendment 706 because a sentencing
hearing is warranted only if the amendment lowered a defendant’s guideline range.
See 18 U.S.C. § 3582(c)(2). And even if the district court held a resentencing
hearing, it would not be a de novo hearing because all original sentencing
determinations remain the same, except for the amended guideline section. United
States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (holding that proceedings
under § 3582 do not constitute a de novo resentencing, and “all original sentencing
determinations remain unchanged”). Finally, United States v. Booker, 543 U.S.
220 (2005), does not provide a jurisdictional basis for § 3582 relief, and
Anderson’s argument that the Guidelines now are advisory under Booker is
foreclosed by our precedent. See United States v Melvin, 556 F.3d 1190, 1192-93
(11th Cir. 2009) (holding that Booker does 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”), petition for cert.
filed, (U.S. Feb. 10, 2009) (No. 08-8664); United States v. Jones, 548 F.3d 1366,
1369 (11th Cir. 2008) (holding that Booker did not provide a jurisdictional basis to
reduce a defendant’s sentence). Accordingly, the district court did not err in
denying § 3582 relief, and we affirm.
AFFIRMED.
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