United States v. Steven J. Smith , 337 F. App'x 840 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15104 ELEVENTH CIRCUIT
JULY 24, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 95-00317-CR-T-26TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN J. SMITH,
a.k.a. Steve,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 24, 2009)
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Steven J. Smith appeals the district court’s denial of his motion for a
sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2). The district court
concluded that Smith was not eligible for a reduction because his sentence was
based on a statutory minimum term of imprisonment, such that Amendment 706,
which reduced base offense levels applicable to crack cocaine offenses, had no
effect on his guideline range. The court also declined to consider Smith’s
challenge to the validity of the government’s original 21 U.S.C. § 851(a) notice,
concluding that the issue was outside the scope of the § 3582(c)(2) proceeding.
On appeal, Smith generally argues that the district court erred in finding he
was ineligible for a § 3582(c)(2) sentence reduction because the government’s
§ 851 information was invalid. First, Smith submits that the district court did not
have jurisdiction in his original sentencing hearing to impose the statutory
minimum because the § 851 information incorrectly provided that he was
“adjudged guilty and sentenced” for a juvenile drug charge in 1992, when in fact
he was not adjudged guilty, the adjudication was withheld, and he was not
sentenced or sanctioned as an adult. Second, Smith argues that even if the § 851
information was sufficient, his prior juvenile charge could not be used to trigger
the statutory minimum because the adjudication was withheld and he was not
convicted or sentenced as an adult. Finally, Smith argues that the court abused its
discretion in failing to consider the factors in 18 U.S.C. § 3553(a), including his
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post-conviction rehabilitation and the Guidelines’s disparate treatment of crack and
powder cocaine, and he submits that the Guidelines are advisory only after the
Supreme Court’s decisions in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738(2005), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558 (2007).
“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, 984 (11th Cir. 2008). A district court may modify a term of imprisonment in
the case of a defendant who was sentenced to a term of imprisonment 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. The applicable policy statements, found in U.S.S.G. § 1B1.10,
state that a sentence reduction is not authorized under § 3582(c)(2) if “an
amendment listed in subsection (c) does not have the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The
commentary elaborates that a reduction is not authorized if an applicable
amendment does not lower a 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.
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(n.1(A)).
The district court did not err in determining that Smith was ineligible for a
§ 3582(c)(2) reduction because his sentence was based on the statutory minimum
term of imprisonment, not his otherwise applicable range calculated under § 2D1.1.
See U.S.S.G. § 1B1.10, comment. (n.1(A)); United States v. Williams, 549 F.3d
1337, 1339-42 (11th Cir. 2008) (holding that the district court did not have the
authority to grant Williams a reduction because Amendment 706 had no effect on
his statutory minimum term of imprisonment, which had become his guideline
range, even when he received a downward departure under U.S.S.G. § 5K1.1).
Furthermore, the court properly declined to review the sufficiency of the
government’s § 851 information because it was outside the scope of the
§ 3582(c)(2) proceeding. See United States v. Bravo, 203 F.3d 778, 781-82 (11th
Cir. 2000) (declining to address in a § 3582(c)(2) proceeding an Eighth
Amendment argument and noting that § 3582(c)(2) “does not grant to the court
jurisdiction to consider extraneous resentencing issues”).
Upon review of the record and the parties’ briefs, we discern no reversible
error. Accordingly, we affirm.
AFFIRMED. 1
1
Smith’s request for oral argument is denied.
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