United States v. Joseph Lovett , 350 F. App'x 353 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 20, 2009
No. 08-15158 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 89-00031-CR-25-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH LOVETT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 20, 2009)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Joseph Lovett appeals the district court’s denial of his motion for a reduction
of sentence, pursuant to 18 U.S.C. § 3582(c)(2). He was originally convicted of
conspiring to possess with intent to distribute cocaine hydrochloride, cocaine base,
marijuana, and heroin, in violation of 18 U.S.C. § 846.
Lovett contends that the pre-sentence investigation report (“PSR”) at his
original sentencing stated that he was responsible for “more than 500 grams but
less than 1.5 kilograms" of cocaine base. He argues that the district court adopted
the PSR, and, as a result, he is entitled to a sentence reduction. Lovett is wrong.
The PSR did not recommend that he be found responsible for less than 1.5
kilograms of cocaine base. Instead, it recommended that he be found responsible
for 16 kilograms of cocaine base. He objected to that part of the PSR, but the
district court overruled his objection, and adopted the recommendation as its
finding.
The district court’s finding of 16 kilograms of cocaine base is not subject to
review in this § 3582(c)(2) proceeding. See United States v. Bravo, 203 F.3d 778,
781 (11th Cir. 2000) (“[A]ll original sentencing determinations remain unchanged
with the sole exception of the guideline range that has been amended since the
original sentencing.”) (emphasis in the original). “Under Amendment 706, the
guidelines now provide a base offense level of 36 for defendants who are
responsible for at least 1.5 kilograms but less than 4.5 kilograms of crack cocaine.”
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United States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008). “However, a base
offense level of 38 still applies to defendants responsible for 4.5 kilograms or
more.” Id. Thus, Amendment 706 does not reduce the applicable guideline range
for a defendant, like Lovett, who was found responsible for at least 4.5 kilograms
of crack cocaine. Id. As the district court correctly determined, Amendment 715
does not effect a reduction in the guidelines range for that category of defendants
either. See U.S.S.G. § 2D1.1 cmt. (n.10(D)(ii)(I)).
Lovett also contends that the Supreme Court’s decision in Kimbrough v.
United States, 552 U.S. 95, 128 S.Ct. 558 (2007), provides a basis for reducing his
sentence independent of Amendments 706 and 715. We have held, however, that
“Kimbrough do[es] not apply to § 3582(c)(2) proceedings.” United States v.
Melvin, 556 F.3d 1190 (11th Cir.), cert. denied, 129 S.Ct. 2382 (2009). Stated
another way, if a defendant is ineligible for a sentence reduction under
§ 3582(c)(2), the Supreme Court’s Booker line of decisions does not provide a way
to get around that ineligibility. Jones, 548 F.3d at 1369.
The district court correctly denied Lovett’s § 3582(c)(2) motion.
AFFIRMED.
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