United States v. Alexander Diaz , 186 F. App'x 949 ( 2006 )


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  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    JUL 03, 2006
    No. 05-16927                   THOMAS K. KAHN
    Non-Argument Calendar                  CLERK
    ________________________
    D. C. Docket No. 01-00049-CR-FTM-29DNF
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ALEXANDER DIAZ,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    _________________________
    (July 3, 2006)
    Before BLACK, MARCUS and WILSON, Circuit Judges.
    PER CURIAM:
    Alexander Diaz appeals, pro se, the district court’s denial of his 
    18 U.S.C. § 3582
    (c)(2) motion to reduce his sentence. Diaz was sentenced to 270 months’
    imprisonment after pleading guilty to the following three counts of a five-count,
    superseding indictment: (1) conspiracy to possess with intent to distribute 500
    grams or more of cocaine, in violation of 
    21 U.S.C. §§ 846
    , 841(a)(1), (b)(1)(B)(ii)
    (Count One); (2) carrying a firearm during a drug trafficking crime, in violation of
    
    18 U.S.C. § 924
    (c)(1)(A)(i) (Count Three); and (3) possession of a firearm by a
    convicted felon as an armed career criminal, in violation of 
    18 U.S.C. §§ 922
    (g)(1),
    924(e)(1) (Count Five). In his § 3582(c)(2) motion to the district court, Diaz
    requested the court to reduce his sentence pursuant to Amendments 489 and 591 of
    the Sentencing Guidelines. The district court denied the motion because
    Amendments 489 and 591 were in effect at the time of sentencing and, therefore,
    the court lacked jurisdiction to consider Diaz’s claim under § 3582(c)(2). We
    affirm.
    Section 3582(c)(2) is applicable “in the case of a defendant who has been
    sentenced to a term of imprisonment based on a sentencing range that has
    subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C.
    994(o).” The Sentencing Commission promulgated Amendment 489 effective
    November 1, 1993, and Amendment 591 effective November 1, 2000. See
    U.S.S.G. app. C, amends. 489, 591 (2001). The district court did not err in finding
    2
    it lacked jurisdiction to review Diaz’s § 3582(c) motion because both amendments
    were in effect on Diaz’s January 22, 2002, sentencing date and had already been
    incorporated into the November 1, 2001, Guidelines used by the sentencing court.
    Thus, Diaz was not a defendant “sentenced based on a sentencing range that was
    subsequently lowered by the Sentencing Commission pursuant to 
    28 U.S.C. § 994
    (o).” See United States v. Bravo, 
    203 F.3d 778
    , 780 (11th Cir. 2000)
    (emphasis added). Additionally, although Diaz does not argue any alternative
    basis for jurisdiction, because of his pro se status, the district court executed a
    thorough analysis of potential bases of jurisdiction available to Diaz. We conclude
    the district court did not err in determining that no other statute or rule applied to
    Diaz’s claim. Accordingly, we affirm the district court’s denial of Diaz’s
    § 3582(c) motion.
    AFFIRMED.
    3
    

Document Info

Docket Number: 05-16927

Citation Numbers: 186 F. App'x 949

Judges: Black, Marcus, Per Curiam, Wilson

Filed Date: 7/3/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023