United States v. Osei Rivera , 332 F. App'x 569 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 4, 2009
No. 08-16761 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 97-00107-CR-T-24MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSEI RIVERA,
a.k.a. S,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 4, 2009)
Before BLACK, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Osei Rivera, a federal prisoner convicted of a crack cocaine offense, appeals
the district court’s denial of his pro se motion to reduce his sentence, filed pursuant
to 18 U.S.C. § 3582(c)(2). Rivera’s § 3582(c)(2) motion was based on
Amendment 706 to the Sentencing Guidelines, which reduced base offense levels
applicable to crack cocaine. On appeal, Rivera argues it was error for the district
court to deny his § 3582 motion on the ground he was held accountable for more
than 4.5 kilograms of crack cocaine, because he was not held liable for that amount
of crack cocaine at his original sentencing. Rivera also asserts the district court
erred in failing to address his arguments concerning drug quantity and Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000). Rivera next argues his sentence should be
reduced because the Guidelines are advisory in the § 3582 context following
United States v. Booker, 125 S. Ct. 738 (2005). He asserts the district court should
have considered the factors under 18 U.S.C. § 3553(a), as well as his
post-sentencing conduct. Finally, he argues, for the first time on appeal, his equal
protection and due process rights are violated by the fact that he was sentenced pre-
Booker and now is being denied an opportunity to be resentenced under the
advisory Guidelines.
“We review de novo a district court’s conclusions about the scope of its legal
authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983,
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984 (11th Cir. 2008). We review for plain error issues not raised before the district
court. United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005). Under
plain-error review, we can correct an error where: (1) there is error; (2) the error is
plain; (3) the error affected substantial rights; and (4) the error seriously affected
the fairness, integrity, or public reputation of judicial proceedings. Id.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).
The district court properly denied § 3582 relief because Rivera’s guideline
range was not lowered as a result of Amendment 706. Rivera was held
accountable for more than 4.5 kilograms of crack cocaine and Amendment 706
only lowered base offense levels for quantities of crack cocaine less than 4.5
kilograms. See James, 548 F.3d at 986 (holding that the defendant was not entitled
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to a reduction in sentence because he had been held accountable for more than
4.5 kilograms of crack cocaine, and Amendment 706 did not lower his guideline
range). Furthermore, Rivera’s argument the court improperly attributed more than
4.5 kilograms of crack cocaine to him is meritless because the district court must
keep all the original factual findings the same during § 3582 proceedings, and he
was held accountable for just over 10 kilograms at the original sentencing. See
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”).
Additionally, Rivera’s Apprendi arguments were meritless, and any error the
district court made in not discussing these arguments was harmless. Rivera’s
arguments under Booker and Apprendi fail because those cases are not
retroactively applicable guideline amendments, and, therefore, cannot be a basis
for § 3582 relief. See United States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008)
(holding that Booker did not provide a jurisdictional basis for § 3582 relief because
it was not a sentencing amendment). Furthermore, Booker did not render the
Guidelines advisory in the § 3582 context. See United States v. Melvin, 556 F.3d
1190, 1192-93 (11th Cir. 2009) (holding Booker does not render a guideline range
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advisory in the context of a § 3582 proceeding), petition for cert. filed, (U.S. Feb.
10, 2009) (No. 08-8664).
Rivera’s argument that a lower sentence would be appropriate in light of the
§ 3553(a) factors and his post-sentencing conduct also is meritless. The § 3553(a)
factors and post-sentencing conduct can be considered only if the defendant is
eligible for § 3582 relief, and Rivera was not eligible for relief. See U.S.S.G.
§ 1B1.10 cmt. n.1(B) (stating that, in determining the extent of the reduction to be
given, the court “may consider post-sentencing conduct”); United States v. Vautier,
144 F.3d 756, 760 (11th Cir. 1998) (stating a district court first must discern
whether an amendment would lower a guideline range and then consider the
§ 3553(a) factors to determine whether, and to what extent, to lower a defendant’s
sentence).
Finally, Rivera argues refusing to apply the Guidelines as advisory would
violate his equal protection and due process rights. This argument is meritless
because it constitutes an extraneous sentencing issue, which cannot be raised in a
§ 3582 proceeding. See Duncan, 400 F.3d at 1301; Bravo, 203 F.3d at 782 (stating
§ 3582(c)(2) does not “grant to the court jurisdiction to consider extraneous
sentencing issues”). Therefore, the district court properly denied the § 3582
motion, and we affirm.
AFFIRMED.
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