United States v. Tyrell Plair , 356 F. App'x 270 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13425 ELEVENTH CIRCUIT
DECEMBER 10, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 99-00077-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRELL PLAIR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 10, 2009)
Before CARNES, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Tyrell Plair, a federal prisoner convicted of a crack cocaine offense, appeals
the district court’s denial of his pro se 18 U.S.C. § 3582(c)(2) motion for a
sentence reduction. After review, we affirm.1
Under § 3582(c)(2), may modify a defendant’s term of imprisonment if the
defendant’s sentence was “based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o) . . . .” 18
U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(2). However, “[w]here a
retroactively applicable guideline amendment reduces a defendant’s base offense
level, but does not alter the sentencing range upon which his or her sentence was
based, § 3582(c)(2) does not authorize a reduction in sentence.” Moore, 541 F.3d
at 1330; see also U.S.S.G. § 1B1.10(a)(2)(B). A reduction is not authorized if the
amendment does not lower a defendant’s applicable guidelines 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 cmt. n.1(A).
Here, Plair’s § 3582(c)(2) motion is based on Amendment 706 to the
Sentencing Guidelines, which reduced the base offense levels in U.S.S.G.
§ 2D1.1(c) applicable to most crack cocaine offenses. However, at his original
sentencing, Plair was subject to a statutory mandatory minimum term of twenty
1
“In a § 3582(c)(2) proceeding, we review de novo the district court’s legal conclusions
regarding the scope of its authority under the Sentencing Guidelines.” United States v. Moore,
541 F.3d 1323, 1326 (11th Cir. 2008) (quotation marks omitted), cert. denied, 129 S. Ct. 965
(2009).
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years’ imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(A), in light of his prior
felony drug conviction. Thus, Plair’s sentencing range was not based on the
amount of crack cocaine attributed to him under U.S.S.G. § 2D1.1(c), but on the
statutory mandatory minimum. See U.S.S.G. § 5G1.1(b). As such, Amendment
706 had no effect on Plair’s sentencing range of twenty years’ imprisonment.
Plair argues that the district court erred at his original sentencing when it
imposed the twenty-year statutory mandatory minimum because his prior
conviction was not final when he commenced this federal drug offense. This
argument cannot be raised in a § 3582(c)(2) motion because the issue relates to an
original sentencing determination and not to a guideline amendment that has
subsequently lowered Plair’s sentencing range. See United States v. Moreno, 421
F.3d 1217, 1220 (11th Cir. 2005) (explaining that in a § 3582(c)(2) proceeding all
original sentencing determinations remain the same except the guideline range that
has since been amended).
Plair’s argument that his sentence is unreasonable based on Kimbrough v.
United States, 552 U.S. 85, 128 S. Ct. 558 (2007), is foreclosed by our precedent.
See United States v. Melvin, 556 F.3d 1190, 1192 (11th Cir. 2009) (concluding
that Kimbrough does not “prohibit the limitations on a judge’s discretion in
reducing a sentence imposed by § 3582(c)(2) and the applicable policy statement
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by the Sentencing Commission”), cert. denied, 129 S. Ct. 2382 (2009); United
States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008) (concluding that United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005) does not provide a basis on
which to grant a § 3582(c)(2) motion), cert. denied, 129 S. Ct. 1657 (2009).
Thus, the district court did not have the authority to reduce Plair’s sentence
and properly denied Plair’s § 3582(c)(2) motion.
AFFIRMED.
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