United States v. Keith Jerome Harvey ( 2009 )


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  •                                                               [DO NOT PUBLISH]
    
    
                    IN THE UNITED STATES COURT OF APPEALS
    
                             FOR THE ELEVENTH CIRCUIT
                               ________________________                   FILED
                                                                 U.S. COURT OF APPEALS
                                     No. 08-13266                  ELEVENTH CIRCUIT
                                                                       JUNE 9, 2009
                                 Non-Argument Calendar
                                                                    THOMAS K. KAHN
                               ________________________
                                                                         CLERK
    
                          D. C. Docket No. 03-00032-CR-3-LAC
    
    UNITED STATES OF AMERICA,
    
    
                                                                       Plaintiff-Appellee,
    
                                           versus
    
    KEITH JEROME HARVEY,
    
                                                                  Defendant-Appellant.
    
    
                               ________________________
    
                        Appeal from the United States District Court
                            for the Northern District of Florida
                              _________________________
                                      (June 9, 2009)
    
    Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
    
    PER CURIAM:
    
          Keith Jerome Harvey, proceeding pro se, appeals the district court’s denial
    
    of his motion for a sentence reduction, filed pursuant to 18 U.S.C. § 3582(c)(2).
           Harvey pleaded guilty to conspiracy to possess with intent to distribute and
    
    two counts of possession with intent to distribute crack cocaine, in violation of 21
    
    U.S.C. §§ 846 and 841, respectively. In determining the sentencing guidelines
    
    range, the probation officer noted that Harvey qualified as a career offender, which
    
    resulted in an offense level of 37 and a guidelines range of 262 to 327 months’
    
    imprisonment. Because the conspiracy conviction carried a statutory mandatory
    
    minimum of life imprisonment, however, the guidelines range became life.
    
    U.S.S.G. § 5G1.1(b). After the government informed the court of Harvey’s
    
    substantial assistance and moved for a reduction in sentence under U.S.S.G.
    
    § 5K1.1, the court sentenced Harvey to 180 months’ imprisonment. Harvey did
    
    not file a direct appeal.
    
           Harvey subsequently moved for a reduction in sentence under 18 U.S.C.
    
    § 3582(c) based on Amendment 706 to the sentencing guidelines, which reduced
    
    base offense levels applicable to crack cocaine offenses. The district court denied
    
    the motion on the ground that the amendment would not change Harvey’s
    
    guideline range due to his status as a career offender. The court further stated that
    
    “under the facts and circumstances of this case 180 months is still the appropriate
    
    sentence.” This appeal followed.
    
           “We review a district court’s decision whether to reduce a sentence pursuant
    
    
    
                                               2
    to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
    
    guidelines, for abuse of discretion. However, where the issue presented involves a
    
    legal interpretation, our review is de novo." United States v. Williams, 
    549 F.3d 1337
    , 1338-39 (11th Cir. 2008)(quotations and citations removed).
    
          Under § 3582(c)(2), a district court may reduce the sentence of a defendant
    
    who was sentenced to a term of imprisonment based on a sentencing range that has
    
    subsequently been lowered by the Sentencing Commission. 18 U.S.C.
    
    § 3582(c)(2). Where a defendant was sentenced as a career offender and not based
    
    on the amount of drugs involved, his sentence is not “based on a sentencing range
    
    that has subsequently been lowered.” Moore, 541 F.3d at 1327-28.
    
          Moreover, where a statutory mandatory minimum sentence becomes the
    
    defendant’s guideline range, any changes to the guideline range associated with the
    
    original offense do not affect that defendant’s guideline range. Williams, 549 F.3d
    
    at 1339-40. Accordingly, even where the defendant benefitted from a § 5K1.1
    
    motion and ultimately received a sentence below the guideline range for his
    
    original cocaine offense, Amendment 706 does not entitled the defendant to § 3582
    
    relief. Id. at 1340-42.
    
          Although Harvey acknowledges on appeal that his argument is foreclosed by
    
    United States v. Moore, 
    541 F.3d 1323
     (11th Cir. 2008), cert. denied, McFadden v.
    
    
    
                                             3
    United States, 
    129 S. Ct. 965
     (2009), and cert. denied, United States v. Moore, 
    129 S. Ct. 1601
     (2009), he contends that Moore was wrongly decided because this court
    
    misinterpreted § 3582’s use of the terms “sentencing range” and “applicable
    
    category of offense committed.” We disagree and are bound by decisions of our
    
    prior panels unless or until such decision is overruled by this court sitting en banc
    
    or by the Supreme Court. United States v. Steele, 
    147 F.3d 1316
    , 1317-18 (11th
    
    Cir. 1998).
    
          Here, Harvey’ guidelines range was determined by the statutory mandatory
    
    minimum. Therefore, Amendment 706 had no effect on his guideline range, and
    
    did not entitle him to relief under § 3582. Accordingly, Harvey’s arguments are
    
    foreclosed by this court’s decisions in Moore and Williams.1
    
          AFFIRMED.
    
    
    
    
          1
              To the extent Harvey’s brief constitutes a petition for hearing en banc, it is denied.
    
                                                      4
    

Document Info

DocketNumber: 08-13266

Filed Date: 6/9/2009

Precedential Status: Non-Precedential

Modified Date: 12/21/2014